RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 JANUARY 2007
      DOCKET NUMBER:  AR20060006426


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Rene’ R. Parker               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Kenneth Wright                |     |Chairperson          |
|     |Mr. Larry Racster                 |     |Member               |
|     |Ms. Ernestine Fields              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a higher Army disability rating than
the 10 percent rating he received.

2.  The applicant states that his medical records were not completely
evaluated or reviewed.

3.  The applicant does not provide any additional documentation in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records are not available to the ABCMR for
review.  However, there were sufficient documents contained in his medical
records for the ABCMR to conduct a fair and impartial review of this case.

2.  Records available to Board show that the applicant was an E-7 in the
Army National Guard.  His basic active service date was listed as 14
February 1984 and his pay entry basic date was listed as 12 February 1971.
The applicant’s records show his primary military occupational specialty as
79T (Recruiting and Retention NCO).

3.  On 6 June 2000, the applicant underwent a Physical Evaluation Board
(PEB). His chief complaint was recorded as major depressive disorder with
associated anxiety disorder.  The PEB found that based on a review of the
objective medical evidence of record that the applicant’s medical and
physical impairment prevented reasonable performance of his duties as
required by his grade and military specialty.  The PEB stated that the
applicant’s condition was not sufficiently stable for final determination.
Therefore, the board found that the applicant was physically unfit and
recommended a combined rating of 50 percent.  Additionally the applicant
was placed on the temporary disability retired list (TDRL) with
reexamination scheduled for November 2001.

4.  On 19 June 2000, the applicant signed the recommendation of the PEB and
initialed the block indicating that he concurred with the findings and
recommendations of the board and waived a formal hearing.

5.  Orders 221-2233 dated 8 August 2000 released the applicant from his
assignment and duty because of physical disability and placed him on the
TDRL. The effective date was listed as 10 October 2000.

6.  DD Form 214 (Certificate of Release or Discharge from Active Duty) show
that the applicant was retired from the Army National Guard on 9 October
2000. He was credited with 15 years, 8 months, and 12 days net active
service and 13 years and 4 days of total prior inactive service.  The
narrative reason for separation was listed as temporary disability with the
separation authority listed as Army Regulation 635-40, paragraph 4-24B(2).

7.  On 28 August 2002 the PEB convened to reconsider the applicant’s “major
depressive disorder in full remission and generalized anxiety disorder.”
The PEB stated that the applicant’s condition was complicated by excessive
use of alcohol.  The applicant had been employed since his placement on the
TDRL, but his job was recently terminated.  The board stated that the
applicant had maintained an adequate social adjustment on psychotropic
medication and psychotherapy quarterly.  During the formal proceedings, the
PEB reevaluated all available medical records and sworn testimony by the
applicant.  The board found that the applicant was physically unfit and
recommended a combined disability rating of 10 percent and that the
applicant's disposition be separation with severance pay if otherwise
qualified.

8.  The election portion of the PEB shows that the applicant appeared
before the board and was represented by council.

9.  A memorandum from the PEB dated 28 August 2002, provided instructions
to the applicant concerning the board’s election form.  The PEB explained
that the applicant had 10 calendar days to either agree with the
recommended findings on the enclosed DA Form 199 (Election Form) or submit
a rebuttal and state his reasons for disagreement with the findings.
Additionally, the board stated that if the office did not receive his
election or request for extension by 7 September 2002, the board would
assume that he agreed with the findings and his case would be referred to
the U.S. Army Physical Disability Agency (USAPDA) for final action.  The
board also stated that if he was on the TDRL and failed to respond within
the 10 days allotted, he would be separated or retired immediately by
USAPDA.

10.  The applicant signed the memorandum on 28 August 2002 verifying that
he received a copy of the PEB Proceedings and the election form.

11.  Orders dated 22 March 2006 removed the applicant from the TDRL and
discharged him from the service effective 22 March 2006 because of
permanent physical disability.  The order stated that the applicant elected
to transfer to the Retired Reserve with entitlement to reserve retirement
benefits in lieu of disability severance pay.
12.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  Physical evaluation boards are established to evaluate all cases
of physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

13.  Paragraph 4-24b(2) of that same regulation provides, in pertinent
part, that once USAPDA makes a final determination on an Soldier’s case,
the Soldier’s disposition will be as follows:  Permanent retirement for
physical disability; Placement on the TDRL; Separation for physical
disability with severance pay; Separation for physical disability without
severance pay; or Transfer of a Soldier who has completed at least 20
qualifying years of Reserve service to the Inactive Reserve on the
Soldier's request.

14.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.

15.  Title 10, United States Code, section 1201, provides for the physical
disability retirement of a member who has at least 20 years of service or a
disability rated at least 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had a personal appearance at the PEB which determined
that he should be separated with severance pay and rated 10 percent
disabled.  He was also represented by counsel during that hearing.  It is
reasonable to presume that if the applicant’s medical records had not been
completely evaluated or reviewed by the PEB’s members, that issue would
have been raised at the hearing and disposition would have been
accomplished at that time.

2.  The applicant’s final PEB determined that the applicant’s depressive
disorder was in full remission and he had a generalized anxiety disorder.
The PEB noted that he had maintained steady employment since his placement
on the TDRL (until his job was terminated), and he had maintained an
adequate social adjustment.  These findings are consistant with a 10
percent disability rating.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KW___  __LR____  __EF ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  _____ Kenneth Wright_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006426                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070123                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |




1.  The evidence of record confirms that the applicant’s medical condition,
which resulted in his inability to continue his military service, was
depressive disorder complicated by excessive use of alcohol.  As such, the
PEB was precluded from rendering a rating high enough to warrant disability
retirement and therefore, rendered a rating of 10 percent.

2.  The records further show that there were two PEBs conducted; June 2000
and August 2002.  The applicant was given the opportunity to either appear
before the Board or provide additional evidence that would aid the Board in
making their final determination.  In addition to reviewing the applicant's
medical records, the PEB also received testimony from the applicant and
comments from his counsel.  There is no indication that the PEB did not
completely evaluate or review the applicant’s entire medical records.

3.  Additionally, it appears that the applicant nonconcurred with PEB
decision rendered on 28 August 2002 and submitted a statement of rebuttal
sufficiently compelling that the USAPDA retained him on the TDRL until
March 2006. Thereafter, the applicant opted for retirement in lieu of
disability severance pay.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy that requirement.

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