RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  15 May 2008
	DOCKET NUMBER:  AR20070009889 


	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.


	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:

The applicant deferred to counsel and remained silent. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Attorney, as counsel for the applicant, requests, in effect, that the applicant’s records be corrected to show, on his date of separation, of 27 November 2003, that he was permanently medically retired with a rating of 50 percent and placed on the Permanent Disability Retired List (PDRL) [sic Retired List, by reason of physical disability] and that he receive back retirement pay from the date of his separation to present.

2.  Counsel argues that the applicant was medically separated from the Army by reason of being unfit due to Post Traumatic Stress Disorder (PTSD) at 0 percent. The applicant sought to be found fit for duty even in the face of dramatic PTSD symptoms to include anger impulsivity which resulted in a court-martial for striking a superior.  The initial informal Physical Evaluation Board (PEB) found the applicant unfit for duty and recommended separation for PTSD.  The applicant challenged that finding on 4 June 2003 and was found to be fit for duty at these proceedings.

3.  Counsel states that the grim reality was at the time of the applicant’s formal PEB and separation, he was terribly mentally ill and in denial of that mental illness.  His attempts to cling to the only thing that he knew, the military, resulted in an inappropriate result.  It was the applicant’s position that although he was suffering from PTSD and had undergone a court-martial for striking a superior, he could function in the Army as a chaplain’s assistant.  A chaplain testified that he would be pleased to have the applicant as a chaplain’s assistant.  A psychiatrist testified that it might be possible for the applicant to perform in that MOS (military occupational specialty) without the drugs he was then taking.  The formal PEB sent the case back to the MTF (Military Treatment Facility) for further evaluation.

4.  Counsel states that a complication was the applicant served in the United States Marine Corps (USMC) during Desert Shield/Desert Storm.  His medical records could not be found, but he alleged that he was separated due to a knee injury.  He joined the Army after a break in service.  He reported that he also suffered from PTSD while in the USMC.  Based on these reports, the formal PEB found PTSD at 0 percent and separated the applicant medically with severance pay.  His case was presented to the formal PEB the way he wanted it presented, not the way reality dictated.

5.  Counsel states that the applicant’s PTSD created considerable social and industrial impairment and became unfitting while he was on active duty in the Army due to an observed traumatic event while in the Army.  At the very least, any preexisting PTSD was dramatically aggravated by service in the Army.

6.  Counsel describes and elaborates in detail on the events that occurred during an exercise, while the applicant was stationed in Hawaii, in February 2001, where two helicopters collided in flight.  He states that the applicant was required to go to the crash site and to recover the body parts.  The events surrounding the recovery operation were the root cause of the applicant's line of duty (LOD) PTSD.

7.  Counsel provides statements from former Soldiers who served with the applicant while on active duty.  The statements describe his post crash demeanor.  The applicant's spouse provides a statement which describes symptoms that were classically PTSD.  Counsel concludes that every account is consistent with the notion that the applicant's real mental health difficulties began after the helicopter crash.  The applicant is now rated at 100 percent unemployable for service related to PTSD by the VA (Department of Veterans Affairs).  He had an Army LOD event which gave rise to PTSD.  His impairment was considerable and permanent and relief should be granted.

8.  Counsel provides several letter of support from former Soldiers who served with the applicant in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he enlisted in the USMC on 12 May 1988, with prior service in the Army National Guard (ARNG).  He was trained in military occupational specialty (MOS), 2311, Ammunition Technician.  He was promoted to corporal (CPL/E-4) effective 1 May 1990.  He served until he was honorably discharged on 26 November 1991, for physical disability, with severance pay.  Item 18 (Remarks), of his DD Form 214, states that he was paid severance pay in the amount of $8,983.20 and was issued a VA Diagnostic Code of "5299 – 5003" (not psychiatric).

3.  The applicant provides a copy of his VA Rating Decision, dated 26 October 1999, which shows that he was granted a 20 percent service-connected disability for chondromalacia of left knee with patellofemoral pain syndrome, 0 percent for fracture fifth metacarpal, left hand, minor, and 0 percent for fracture second metacarpal, right hand, major, for a combined rating of 20 percent.  He was also  rated for several other service and non-service-connected conditions, which included PTSD, for which he was granted a combined rating of 0 percent. 

4.  After a break in service, he enlisted in the Regular Army on 3 May 2000, and was trained in MOS, 67U (now 15U), Helicopter Repairer.  

5.  At a general court-martial on 18 June 2002, the applicant entered mixed pleas to numerous offenses under the UCMJ (Uniform Code of Military Justice).  He was found guilty of:  the wrongful possession of 6 tablets of MDMA (Methylene- dioxymethamphetamine (Ecstasy)), a Schedule I control substance; of wrongful possession of 10,000 tablets of Anabol Steroids, a Schedule III control substance; of conspiring with a senior NCO to commit an offense, under the UCMJ, to wrongfully import controlled substances, under Scheduled III and IV into the customs territory of the US, and in order to effect the object of the conspiracy, the applicant formulated and carried out a plan to send packages containing those controlled substances; and, of making a wrongful and unlawful false statement.  His sentence consisted of a reduction to pay grade E-1 and to perform hard labor without confinement for 60 days.

6.  The applicant was issued a permanent profile of 111113, on 20 September 2002, due to PTSD, Major Depressive Disorder, with psychotic features, and Obsessive Compulsive Disorder.  His profile assignment limitations were, no access to live ammunition or weapons, and must be near a medical center for further follow up care.  

7.  On 10 October 2002, the applicant's commander prepared a memorandum for the President, PEB.  He indicated that the applicant was assigned to the Medical Holding Company (MHC), that his present MOS was 67U10, and he was not pending adverse action.  He received a permanent profile on 20 September 2002 and was recommended for a medical evaluation board (MEB).  He had not participated in the APFT since being assigned to the MHC.  He was diagnosed with severe PTSD, major depressive disorder, with psychotic features, and obsessive compulsive disorder.  He indicated that since being assigned to the MHC, he had not displayed any of the behavior patterns associated with his illness.  He described his duties and indicated that the applicant had a strong desire to remain in the Army; unfortunately, his medical conditions did not allow him to perform duties associated with his MOS and rendered him ineligible for world-wide deployments.

8.  On 3 February 2003, the applicant's case was considered by an MEB.  The MEB diagnosed the applicant as having PTSD.  His ailments were ruled to have been incurred in LOD, while he was entitled to base pay, existed prior to service (EPTS), which was aggravated by active duty, in the Army, but not EPTS for first enlistment in the Marines.  Impairment for military duty was moderate and impairment for social and industrial adaptability considerable.  He was also diagnosed as having chronic knee pain, hiatal hernia, and urinary tract infection, resolved.  He was found unfit for further military duty, under the provisions of Army Regulation 40-501, chapter 3, paragraph 31.  The findings and recommendations were approved on 27 June 2003 and he was referred to a PEB.  The MEB recommend that the applicant continue with psychiatric treatment, including medications and therapy, at a VA Facility nearest his home of record.

9.  On 19 March 2003, the President, PEB, returned the applicant's case to the MTF for additional information.  He requested that his prior service (USMC) medical records be obtained for review and any VA documentation that may be available.  

10.  On 1 May 2003, the applicant appeared before an informal PEB, at Fort Lewis, Washington.  He was diagnosed as having PTSD, said to be EPTS this Army enlistment.  His USMC records were not available for reference other than his DD Form 214 which indicated disability separation for code 5299-5003 (not psychiatric).  Army Enlistment physical and VA records indicated no PTSD from USMC service.  He was diagnosed with associated obsessive compulsive disorder.  His condition functional limitation in maintaining the appropriate level of adaptability, caused by the physical impairments made him medically unfit to perform the duties required of a Soldier of his rank and primary specialty.  His unfitting conditions were found to be not service incurred or permanently aggravated.  His impairment existed prior to entitlement to basic pay (EPTS) and his disability had increased only to the extent of its accepted normal and natural progression; therefore, this was not permanent service aggravation.  

11.  The PEB found the applicant physically unfit and recommended a rating of 0 percent and separation, without disability benefits.   The PEB indicated that his separation was not based on a disability resulting from an injury received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law.  The PEB also indicated that the applicant's disability did not result from a combat related injury. The applicant nonconcurred with the PEB recommendations and demanded a formal hearing and requested counsel be appointed to represent him on 2 May 2003.

12.  On 6 May 2003, the Acting President, of the PEB, informed the Commander, MHC, Tripler Army Medical Center, Hawaii, that the applicant was scheduled for a formal PEB on 4 June 2003.  He was required to report to appointed counsel prior to the date of his formal PEB.

13.  The applicant was promoted to specialist (SPC/E-4) effective 12 May 2003.  

14.  On 30 May 2003, the applicant's physician informed the President, PEB, that he was providing therapy to the applicant and that he was doing very well.

15.  On 4 June 2003, the acting President, PEB, returned the applicant's case to the MTF for additional information.  The president indicated that the applicant presented substantial information and testimonial documents that indicated there had been substantial improvement in his condition since the original psychiatric MEB was prepared and requested a finding of, fit for continued duty.  His current treating physician suggested that a trial of duty, out of medical hold would be appropriate.  The President indicated that he would appreciate evaluation of this possibility.  If the decision was favorable, he requested that the case be withdrawn for the duration of the trial of duty, of whatever duration.  If it was later determined that the Soldier continued to be determined as not meeting retention standards, the case could be submitted as a new case. 

16.  On 26 June 2003, the Director, Addiction Psychiatry Fellowship, prepared a PEB addendum.  The Director reviewed the case and the facts available to date and found that the applicant was not fit for further military duty.  He stated that obsessive compulsive disorder, PTSD and major depression had contributed to and complicated his psychiatric history.  These disorders worsened in his first term of enlistment during Desert Storm and continued while he was attempting to readjust to civilian life.  He later reenlisted, continued to have symptoms of mental illness to include significant substance abuse, and underwent a court-martial for alleged illegal acts related to his substance use and trafficking.  Subsequent to the court-martial, he was recommended for separation by the MEB.  Although he is currently able to function while performing a low stress job (monitoring sports equipment at the local gym), there is no guarantee that his future military assignments could continue to be of such low stress intensity.

17.  In addition, the Director stated that the applicant had demonstrated an underlying personality structure that was not compatible with military service by his acting in an extremely maladaptive manner when given disappointing news.  On 2 May 2003, after reading him his VA connection benefits, he became agitated and allegedly threatened to kill an MEB member.  In addition, his current therapist had indicated that the applicant continued to have hallucinations consisting of seeing feet out of the corner of his eyes.  These were the same visions that "grew" into full size people in the past.  Due to the seriousness and chronic nature of his illness, there was a high likelihood of recurrence under the typical stress and strain of military duty.  Such a recurrence would lead to the reemergence of maladaptive behavior such as the alleged threats made toward the MEB member and substance abuse.  Past military service and subsequent reenlistment had greatly impacted the applicant's ability to function in a productive manner and his past behaviors were extremely distressing to him, his family, and his providers. 

18.  The Director recommended, in the military's and applicant's best interests, that he be medically retired from military service in order to minimize the potential for future psychological trauma and relapse of his multiple psychiatric illnesses.

19.  On 4 August 2003, the applicant's counsel submitted an additional statement on behalf of the applicant to the President, PEB.  Counsel addressed the applicant's desire to either have a trial of duty period or to be found fit for duty by the PEB.  Counsel indicated that the applicant had concerns about the facts that were presented in the 26 June 2003 addendum.  Counsel felt that the applicant had demonstrated his ability to continue to perform his duties in the US Army and that the testimonial evidence that was presented in his formal board should be given weight before the PEB made a final adjudication of his case.  Counsel stated that there continued to be strong support for his retention as a chaplain’s assistant, and if he were found fit, it was his understanding that he would be immediately reclassified to this MOS.

20.  Counsel stated that the applicant continued to make a positive impact in the military community.  He elaborated on his volunteer work for the Schofield Barracks CID (Central Intelligence Division) and their desire to maintain him until his case was closed.  He also elaborated on the misunderstanding that occurred between the applicant and the MEB member.
21.  On 4 August 2003, the applicant appeared before a formal PEB with counsel.  The PEB found the applicant medically unfit to perform the duties required of a Soldier of his rank and primary specialty.  The PEB recommended the applicant be separated from the service without benefits.  The applicant's disability percentage was not rated.  The PEB adjourned on the same day.  The applicant nonconcurred with the PEB recommendations and indicated that a rebuttal would be provided by counsel.

22.  On 25 August 2003, the applicant’s counsel submitted a rebuttal.  In his rebuttal, he requested that the PEB find that applicant’s condition had been permanently aggravated by service in accordance with Army Regulation 635-40, paragraph 3-2a.  He argued that the applicant’s PTSD originated from his prior Marine Corps service in the Persian Gulf and had been permanently aggravated because of events unique to this Army enlistment.  Counsel stated that before entering active duty, he was not experiencing any of the previously debilitating effects of PTSD.  His improvement was an important factor in his decision to return to active duty.  Counsel stated that routine military stress and training began to bring back many of the symptoms he had suffered from immediately after his service in the Persian Gulf.  Counsel stated that the overall nature of returning to military service affected the reoccurrence of applicant's PTSD and it was his exposure to the aftermath of the helicopter crash which permanently changed his ability to cope with the disease.  Counsel concluded that because this is a service-connected event that had a direct impact on the applicant's disease, the presumption that his disease was aggravated in the line of duty was not overcome by the preponderance of the evidence.

23.  On 3 September 2003, the President, PEB, prepared a memorandum for the applicant, Subject:  Appeal of PEB Formal Proceedings.  In his memorandum, the President, PEB, informed the applicant that the PEB received his election, dated 22 August 2003, in which he did not concur with the findings and recommendations of his formal hearing.  The President noted the personal statement and statement by counsel to have been considered by the board.  The President stated that his appeal was carefully considered and his case reviewed. The PEB adhered to the original findings and recommendations of the formal hearing.  The PEB believed that his case had been properly evaluated in accordance with Army Regulation 635-40 and current US Army Physical Disability Agency (USAPDA) policies.  The President stated that the PEB considered all relevant evidence in his case, to include the arguments presented in his appeal.  The President concluded that his entire case, including his rebuttal, was forwarded to the USAPDA for further processing.

24.  On 11 September 2003, the Chief Operations Division, USAPDA, prepared a memorandum to the PEBLO (PEB Liaison Officer), Tripler Army Medical Center, Subject:  Nonconcurrence/Rebuttal to PEB Finding.  The PDA noted that the applicant disagreed with the findings of his PEB and it had reviewed his entire case.  The PDA's conclusion was that his case was properly adjudicated by the PEB which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination.  The findings and recommendations of the PEB were supported by substantial evidence and were therefore affirmed.  The applicant was advised his case had been forwarded to the Physical Disability Branch for final disposition.  The PDA official informed the applicant that he may be eligible for medical care through the DVA if they determine that his illness or injury was service-connected.  

25.  On 31 October 2003, the applicant's counsel requested that the USAPDA consider a service-connection in the applicant's case because of his proximity to having 8 years of active duty service prior to his separation.  He requests that the PDA modify his case in accordance with Policy Memorandum #3, due to the calculation of his corrected years of active duty service.  Counsel stated that when his case was processed through the physical disability process, his BASD (basic active service date) was not accurate because it did not take into account previous USMC active duty service.  The applicant's US Army service, to include ARNG service, equated to 6 years and 7 months.  His USMC service is approximately 3 years which would equate to over 8 years.  Therefore, his conditions should be considered service-connected and rated as appropriate.

26.  The applicant served until he was released from active duty on 27 November 2003, under the provisions of Army Regulation 635-40, paragraph 4-24b(4), for disability, EPTS, PEB.  

27.  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.  It provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.


28.  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

29.  Paragraph 4-19b, of Army Regulation 635-40, states that a PEB may decide that a Soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a Soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.  

30.  Paragraph 4-24 of Army Regulation 635-40 pertains to the disposition of Soldiers by the US Army Human Resources Command (AHRC) upon the final decision of the Physical Disability Agency (PDA).  It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USADPA) for clarification or 
reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph 4-24b(4) applies to separation for physical disability, existed prior to service, physical evaluation board (PEB).

31.  Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an EPTS condition was aggravated by military service, the finding will be in the line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not line of duty, EPTS.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

32.  Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active service.




DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant enlisted in the USMC on 12 May 1988 and was honorably discharged on 26 November 1991, for disability with severance pay.  He was issued a VA Diagnostic Code of "5299 – 5001" (not psychiatric).  He applied to VA for a service-connected disability and was granted a combined rating of 20 percent.  He was also rated for other service-connected conditions, which included PTSD, and was granted a combined rating of 0 percent.  He enlisted in the Regular Army on 3 May 2000. 

2.  The applicant was diagnosed as having PTSD and was issued a permanent profile of 111113.  He appeared before an MEB which diagnosed him as having PTSD.  His condition was determined to have been incurred in the LOD, while entitled to basic pay, EPTS, aggravated by active duty, for this Army enlistment, but not EPTS for his first enlistment in the USMC.  He was found unfit for further military duty and was referred to a PEB.

3.  The informal PEB diagnosed the applicant as having PTSD, said to be EPTS this Army Enlistment.  His USMC records were unavailable for reference other than his DD Form 214, which indicated disability separation for code 5299-5001 (not psychiatric).  The PEB stated that his Army enlistment physical and VA records indicated no PTSD from USMC service.  The PEB found the applicant physically unfit and recommended a rating of 0 percent and separated without benefits.  The applicant nonconcurred with the PEB recommendations and demanded a formal hearing with counsel.

4.  The applicant appeared before a formal PEB with counsel.  The formal PEB found him medically unfit to perform the duties required of a Soldier of his rank and primary specialty.  The PEB recommended that the applicant be separated without benefits.  The applicant's disability percentage was not rated.  The applicant nonconcurred with the PEB recommendations and indicated that a rebuttal would be provided by counsel.  The PEB considered all relevant evidence in the applicant's case.  He adhered to the original findings and recommendations of the formal PEB.  The PDA concluded that the applicant's case was properly adjudicated by the PEB which correctly applied the rules of the PDES in making its determination.  

5.  The applicant was discharged under the provisions of Army Regulation     635-40, paragraph 4-24b(4), for disability, EPTS, PEB.

6.  Counsel's contentions to the ABCMR were considered.  It was determined that his physically disqualifying condition was EPTS which was not ratable.
7.  The applicant has not submitted any evidence to show that he was not properly rated for his disabilities. 

8.  It is apparent that the applicant reapplied to VA after his discharge, from the Regular Army, on 27 November 2003.  However, a copy of his VA Rating Decision is unavailable for review.  Counsel stated he was now rated at 100 percent unemployable for PTSD.  The applicant's rating by the VA does not indicate that his rating by the Army is in error.

9.  The fact that the VA, operating under its own laws and regulations, has awarded the applicant a higher rating than the Army is only indicative of the difference between the purposes for which the ratings are assigned.

10.  In accordance with governing laws, the VA is the Department responsible for compensating veterans when service related conditions cause social or industrial impairment after a Soldier's discharge. 

11.  Any rating action by the VA does not necessarily demonstrate error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  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.




      __________x____________
                CHAIRPERSON




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ABCMR Record of Proceedings (cont)                                         AR20070009889



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508