IN THE CASE OF:	  

	BOARD DATE:	  03 June 2008

	DOCKET NUMBER:  AR20070015013 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge by reason of disability with severance pay be changed to retirement by reason of permanent physical disability. 

2.  The applicant states that he does not feel that the Army fairly rated him at the time he was discharged by reason of disability with severance pay and that he should have received at least a 30% disability rating.  He goes on to state that he had a number of disabilities that occurred on active duty and prevented him from performing the duties of his military occupational specialty (MOS) and being reclassified to another MOS.  He goes on to state that he received $17K in disability severance pay and if his request for retirement is granted, he desires to know how his disability severance pay will be affected.  He also states that he would not want to have to give it back if that was a consequence of being medically retired but would understand if there was an offset.  He further states that he currently has claims pending with the Department of Veterans Affairs (VA).   

3.  The applicant provides approximately eight inches of documents consisting of VA and Army Medical Records, consults, test results, medical evaluation board results, excerpts from medical journals, copies of orders from his military records, awards orders and numerous other documents from his official records.  




CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 16 November 1971 and enlisted in the Minnesota Army National Guard (MNARNG) in the pay grade of E-3 on 11 October 2001 for a period of 8 years, training as a Radio Operator and maintainer and a cash enlistment bonus.  He was ordered to initial active duty training (IADT) on 7 August 2002.  He completed his basic training at Fort Benning, Georgia and his advanced individual training (AIT) at Fort Gordon, Georgia before being released from active duty for training on 22 January 2003 and being returned to his MNARNG unit.  He was advanced to the pay grade of E-4 on 11 April 2003 and to the pay grade of E-5 on 7 February 2004.   

2.  On 26 September 2005, he was ordered to active duty in support of Operation Iraqi Freedom and was deployed to Kuwait/Iraq on 26 April 2006. 

3.  On 19 July 2006, while in a convoy, a rocket propelled grenade landed, unexploded, in front of the applicant’s vehicle and after engaging the enemy, he was subsequently medically evacuated on 28 August 2006 for treatment, initially to Landstuhl Regional Medical Center and then to Fort Knox, Kentucky.  After being diagnosed as having major depression, he was subsequently diagnosed as having post-traumatic stress disorder (PTSD).

4.  On 27 June 2007, a medical evaluation board (MEB) was convened at Ireland Community Hospital at Fort Knox.  The MEB diagnosed the applicant as having (1) PTSD, (2) a Cognitive Disorder (TBI), (3) chronic neck pain, (4) left shoulder pain, (5) Diverticulosis and (6) GERD (Gastroesophageal Reflux Disease).  The MEB determined that the PTSD and Cognitive Disorder (TBI) were incurred while entitled to base pay and did not exist prior to service.  The remaining diagnosis (2-6) were determined to meet retention standards.  The MEB recommended that the applicant be referred to a Physical Evaluation Board and the applicant indicated by his signature on 3 July 2007, that he did not desire to continue on active duty and that he concurred with the findings and recommendation of the MEB.     

5.  On 17 July 2007, a Physical Evaluation Board (PEB) convened at Fort Lewis, Washington and determined that the applicant’s current level of PTSD made him medically unfit to perform his duties and rated his disability at 10%.  The PEB found his diagnosis of (2) Cognitive Disorder not to be unfitting and thus not ratable.  His diagnosis 3,4,5 and 6 were also determined to meet retention standards and thus not ratable.  The PEB recommended that the applicant be separated with severance pay.  On 19 July 2007, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.
6.  Accordingly, the applicant proceeded to Fort Knox, where he was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24B (3) for disability with severance pay.  He had served 1 year, 10 months and 12 days of active service during his current mobilization and was paid $17,371.20 in disability severance pay.

7.  In the processing of this case a staff member of the Board contacted the applicant’s counsel, a veterans service officer (VSO) in Minnesota to request that the applicant provide specifics as to why he believed that he was not treated fairly in the Physical Disability Evaluation System (PDES).  Follow-up contacts with the VSO indicate that the applicant had been contacted for additional information and to date no response had been received by the VSO.  Additionally, no response has been received by the staff of the Board.  

8.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.  

9.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

10.  There is a difference between the Department of Veterans Affairs (VA) and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.    
    

DISCUSSION AND CONCLUSIONS:

1.  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 this requirement.           

2.  The applicant has provided no specifics as to why he believes he was not treated fairly or properly evaluated under the PDES.  Therefore, in the absence of evidence to the contrary, it must be presumed that the applicant was properly evaluated at the time and that he was assigned the properly disability rating for his condition as it existed at the time he was evaluated.

3.  It also appears that the applicant was properly informed of his rights at the time and elected to waive his right to a formal hearing and to accept the findings and recommendations of the PEB at the time, rather than to appeal his case at a formal hearing whereas he could have asserted any additional issues he may have had at the time.  

4.  Accordingly, it is not reasonable for this Board to attempt to second-guess the medical officials of the PEB that considered his case without specific evidence of any error or injustice that the applicant believes exists in his case.  Therefore, there is no basis to approve the applicant’s request for an increased disability rating or to grant his request for retirement.    

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.





      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070015013



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ABCMR Record of Proceedings (cont)                                         AR20070015013



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