RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  16 October 2007
	DOCKET NUMBER:  AR20060016620 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. James E. Anderholm

Member

Mr. Joe R. Schroeder

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, that the Physical Evaluation Board (PEB) findings be amended to add his Traumatic Brain Injury (TBI) and his Post Traumatic Stress Disorder (PTSD). 

2.  The applicant states that his TBI and PTSD were not identified and considered by the PEB.  

3.  The applicant provides copies of the Medical Evaluation Board (MEB) Proceedings, PEB Proceedings, Preliminary Neuropsychological Assessment, Final Neuropsychological Assessment, Multidisciplinary Assessment and Treatment Plan, Initial Assessment and Treatment Plan, and Speech Pathology Diagnosis.

CONSIDERATION OF EVIDENCE:

1.  On 7 March 2002, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 74D2O (Chemical Operations Specialist).  He served through a series of assignments to include duty in Iraq.

2.  In May 2004, while in Iraq, the applicant was in a track vehicle when it hit an anti-tank mine that exploded.  He experienced a loss of consciousness and suffered severe bilateral knee pain. 

3.  On 7 June 2006, the applicant was honorably discharged from the United States Army under the provisions of Army Regulation 635-40, paragraph 
4-24b(3) due to disability.  He had attained the rank of sergeant (pay grade E-5) and had completed 4 years, 3 months, and 1 day of creditable active service.  He was granted severance pay in the amount of $16,996.80.  

4.  The applicant provides, in part, the following medical notes from the Department of Veterans Affairs Palo Alto Healthcare System:

	a.  On 18 July 2006, he was seen by the clinic for a preliminary neuropsychological assessment.  Based on what appears to be the applicant’s oral history, the examiner recommended that he be admitted for evaluation of headaches.



	b.  On 7 August 2006, the applicant was admitted for neuropsychological evaluation of TBI.  The diagnosis provided a cognitive disorder secondary to TBI, PTSD; TBI, Polytrauma; severe stressors of life threatening injury, unemployment, and inadequate finances; and a mild to moderate cognitive impairment.  The recommendation included: 1) that he have revised academic procedures to accommodate his allowed processing speed and problem with divided attention and visual memory, to include assistance with note taking and extended examination times;  2) that he receive cognitive therapy to address deficits in processing speed, attention, memory, and executive functioning; 
3) that new information should be presented at a reduced pace and in small increments; and 4) that he consider individual psychotherapy and couples counseling with a professional who is experienced with TBI and PTSD.

	c.  On 26 September 2006, the applicant underwent a multidisciplinary assessment and treatment plan.  It identified his marital problems with a long term goal of improving the relationship, and his PTSD with a long term goal of reducing its symptoms. On 16 October 2006, the applicant had a follow-up appointment with the staff psychiatrist to discuss a treatment plan.

	d.  18 October 2006, the applicant was seen by the speech pathologist for speech therapy.  The goal of these sessions was to provide the applicant with strategies to improve his attention to detail.      

4.  In the processing of this case, an advisory opinion was obtained from the Deputy Commander, United States Army Physical Disability Agency (USAPDA).  The advisory opinion stated that the applicant had not provided any new evidence of any errors in the findings or processing of his separation for disability; that the PEB’s findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, regulation, or directive.  The advisory opinion recommended that the applicant’s military records remain unchanged.  Regarding the applicant’s main complaint in this case, that the PEB was incomplete, the opinion stated that the applicant’s accident occurred in May 2004.  Since that date, the applicant offered complaints related to his back and leg pain.  His main complaint at the MEB was back and leg pain.  The profile, DD Form 3349, only listed back and leg pain.  The commander’s statement indicated that he knew the applicant for several years and that he performed well except for back and knee problems.  The commander even recommended allowing the applicant to remain on duty to complete 20 years of service.  The applicant’s noncommissioned officer evaluations through May 2005 revealed an excellent Soldier who had no cognitive or psychiatric problems. The applicant’s Report of Medical History,
DD Form 2807-1 indicated that he had no nervous trouble of any sort but that he did have some concerns about memory loss, and had received some counseling. The DD Form 2808, Report of Medical Examination, dated 3 June 2005, indicated that there were no psychiatric problems severe enough to be noted on the profile or as a diagnosis that did not meet medical retention standards.  The applicant concurred. 

5.  The opinion also provided the following significant events:

	a.  On 19 August 2005 the MEB found the applicant’s diagnoses of myelopathy (pathological condition of spinal cord), chronic juvenile kyphosis (exaggeration of normal posterior curve of the spine), and low back pain with radiculopathy (diseased condition of roots of spinal nerves) not meeting medical retention standards.  His conditions of occipital neuralgia (sharp pain along the course of a nerve to the back of the head), neck pain, and adjustment disorder all met medical retention standards.  The applicant concurred with these findings on 24 August 2005.

	b.  On 28 October 2005, an informal PEB found the applicant unfit for his back pain, rated at 10 percent disabling, and recommended separation with severance pay.  All other conditions were found as not unfitting and not compensable.  On 31 October 2005, the applicant concurred with these findings and waived his right to a formal hearing.

	c.  On 15 December 2005, the USAPDA reviewed the PEB findings and returned them for reconsideration of possible additional rating and compensation for his myelopathy.  On 22 December 2005, the PEB’s reconsideration resulted in the additional rating of the applicant’s myelopathy at 10 percent disabling, providing a total disability rating of 20 percent. On 3 January 2006, the applicant concurred.

	d.  On 25 January 2006, the USAPDA again returned the case to the PEB, for return to the medical treatment facility for additional medical information.  On 21 March 2006, the PEB again reconsidered the case based on new evidence which supported service aggravation of the applicant’s condition.  The PEB found no need to change their 22 December 2005 findings.  

6.  On 2 August 2007, a copy of the advisory opinion was forwarded to the applicant for his information and opportunity to rebut.  As of 24 September 2007, no reply has been received.

7.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that the applicant was medically disabled and evaluated by a PEB.  He received a 20 percent disability rating which was reviewed and approved by higher headquarters.  The applicant concurred with this finding.

2.  Based on his twenty percent disability, he was discharged with severance pay.  

3.  The applicant has not provided sufficient evidence showing that his TBI and PTSD conditions were, or should have been, found to be medically unfitting for retention in the military.   

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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JRS___  _JEA ___  __SLP ___  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.



__    Shirley L. Powers____
          CHAIRPERSON




INDEX

CASE ID
AR20060016620
SUFFIX

RECON
 
DATE BOARDED
20071016
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108
2.

3.

4.

5.

6.