RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23 August 2007
	DOCKET NUMBER:  AR20070009313 


	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:


Mr. Lester Echols

Chairperson

Mr. John T. Meixell

Member

Mr. Richard T. Dunbar

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:

Applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request to be medically retired with a disability rating of thirty percent or more.   He further requests to personally appear before the Board.

2.  Counsel states, in effect, that the applicant's Physical Evaluation Board (PEB) and the United States Army Physical Disability Agency erred when they did not grant a medical retirement due to his back condition.  He contends that the PEB erred when they rated this condition at ten percent using illegally modified rating criteria.  He states that the Department of Veterans Affairs (VA) rated this condition at forty percent disabling.

3.  Counsel further states that the applicant's Medical Evaluation Board (MEB) erred by not including the condition of his left knee in its report.  Consequently, the PEB only found his right knee unfitting and rated it ten percent disabling.  The VA, using the same medical information available to the United States Army, rated each of his knees at ten percent disabling.

4.  Counsel further stated that the PEB erred when it deemed his dysthymia and post traumatic stress disorder (PTSD) not to be unfitting conditions.  The VA rated this condition at fifty percent disabling.

5.  Counsel provides copies of the applicant's Certificate of Release or Discharge from Active Duty (DD Form 214), MEB proceedings, non-concurrence memorandum, PEB proceedings, PEB rebuttal, and his VA Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001051117, on
7 June 2001.

2.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  Even though the applicant's request was not received within this one year time frame, the Board will reconsider this application in the interest of justice as an exception to policy. 

3.  On 16 June 2000, the applicant submitted a rebuttal statement with his doctor's statement, a patient note, and a report of his left knee.  On 21 June 2000, the United States Army Physical Evaluation Board reviewed all of this documentation and adhered to the original findings. 

4.  On 8 May 2001, the applicant wrote a letter of rebuttal to the opinion of the Army Review Boards Agency (ARBA) Medical Advisor.  His rebuttal was not received within the given suspense; and therefore, was not considered by the Board at that time.  The applicant stated in his rebuttal that the basis for his application was the fact that he was diagnosed with, and treated for PTSD prior to his separation from the United States Army. He maintained that the PEB should have rated him for PTSD and that he should have been medically retired. He contended that the Board should have rated him for that disabling condition, rather than finding that the condition was not unfitting.  He further stated that the VA awarded him a disability rating of fifty percent for his PTSD.     

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.

2.  The applicant's contention that the PEB erred by using illegally modified rating criteria is not supported by any evidence of record, or by any evidence submitted by the applicant. 

3.  The United States Army uses the MEB and PEB process to determine the fitness or unfitness of a Soldier, based on his or her physical condition at a point in time.  The VA uses a rating system to determine an individual's physical condition and to decide if any of the findings are service connected.  The VA has the authority to evaluate an individual repeatedly throughout his or her life and to update their rating decision, either up or down.

4.  The applicant's 21 June 2000 rebuttal was considered by the PEB.  [See page 3 of the Memorandum of Consideration dated 7 June 2001.]  The PEB concluded that the new information provided with the applicant's rebuttal did not support a rating higher than zero percent for the left knee.  The PEB stated that normally retropatellar pain syndrome without findings of degenerative changes is given a rating of zero percent for bilateral conditions.  The PEB further stated that no new information was presented concerning the applicant's dysthymia and PTSD.  Therefore, the PEB held with the original decision that it was not sufficiently impairing of duty performance to be rated.  The PEB adhered to the original findings.  The applicant has not provided any further evidence to show that an error was made in this decision.

5.  The applicant's rebuttal, dated 8 May 2001, to the ARBA Medical Advisor's opinion, does not contain any information which was not previously considered by the Board.  The applicant reiterates his contention that he should have been rated for PTSD, and supports his contention with the fact that he was diagnosed as suffering from PTSD prior to his discharge; the fact that he was determined medically disqualified for PTSD; and the fact that the VA rated him fifty percent disabled for PTSD.  All of these facts were considered by the Board.

6.  In view of the above, the applicant's request should not be granted.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

 __LE  ___  _RTD___  __JTM__  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 to amend the decision of the ABCMR set forth in Docket Number AR2001051117, dated 7 June 2001.




___       Lester Echols______
          CHAIRPERSON




INDEX

CASE ID
AR20070009313
SUFFIX

RECON
 
DATE BOARDED
20070823
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108
2.

3.

4.

5.

6.