IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080005525 


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, in effect, that his discharge with disability severance be changed to a disability retirement. 

2.  The applicant essentially states that he was misdiagnosed by an Army psychologist with anxiety disorder and only awarded 10 percent disability severance pay, but that he actually has post-traumatic stress disorder (PTSD), which was the diagnosis of civilian doctors with the Army and the Department of Veterans Affairs (DVA).  He also states, in effect, that his military record is in error or unjust because the Army said that he only had anxiety disorder and assigned him a 10 percent disability rating so they would not have to medically retire him with at least a 30 percent disability.

3.  Although the applicant referred to a gentleman at the DVA Regional Office in Houston, Texas, he did not provide any additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that after serving in the United States Air Force from May 1995 to September 1997, he enlisted in the Regular Army on 
26 September 2002.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 77F (Petroleum Supply Specialist) which was later converted into MOS 92F with the same duty title.  He served at Fort Hood, Texas, and deployed to Iraq from 10 March 2004 to 
15 March 2005.  

2.  Information from the United States Army Physical Disability Agency essentially shows that on 20 October 2006 a Medical Evaluation Board (MEB) diagnosed the applicant with anxiety disorder, not otherwise specified, which was medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  This MEB also referred the applicant to a Physical Evaluation Board (PEB).  On 8 November 2006, the applicant concurred with the MEB's findings and recommendation.  It was noted that the applicant served in Iraq and that his MEB narrative summary indicated that he was exposed to convoy missions with improvised explosive device explosions and small arms and mortar attacks.  However, the MEB narrative summary also indicated that he did not meet the full Diagnostic and Statistical Manual (DSM) of Mental Health Disorders Axis IV criteria for PTSD.

3.  On 14 November 2006, an informal PEB found the applicant physically unfit due to anxiety disorder, not otherwise specified, requiring psychotropic medication and outpatient treatment.  This PEB also determined that the applicant was performing duty as an aviation refueler and working normal duty hours, and rated his anxiety disorder as a mild social/industrial impairment.  This PEB also essentially recommended that the applicant be separated with 
10 percent disability severance pay.  On 15 November 2006, the applicant concurred with the findings and recommendation of the informal PEB and waived a formal hearing of his case.  On 4 January 2007, the applicant was honorably discharged from the Regular Army with disability severance pay in the amount of $35,721.00. 

4.  The applicant essentially stated that he was misdiagnosed by an Army psychologist with anxiety disorder and only awarded 10 percent disability severance pay, but that he actually has PTSD, which was the diagnosis of civilian doctors with the Army and the DVA.  He also stated, in effect, that his military record is in error or unjust because the Army said that he only had anxiety disorder and assigned him a 10 percent disability rating so they would not have to medically retire him with at least a 30 percent disability.

5.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  This regulation also states, in pertinent part, that the ABCMR is not an investigative body, and will decide cases on the evidence of record. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge with disability severance should be changed to a disability retirement. 

2.  The applicant's contention that he was misdiagnosed with an anxiety disorder was carefully considered.  It is clear that the applicant served in Iraq, and that he experienced several aspects of combat.  However, competent medical authority determined at the time of his MEB that he did not meet full DSM of Mental Health Disorders Axis IV criteria for PTSD.  Additionally, at the time, the applicant concurred with the findings and recommendations of both his MEB and PEB, which both diagnosed him with an anxiety disorder, not PTSD.  The fact that the DVA may have subsequently awarded him compensation for PTSD does not establish an error or injustice in the disability rating rendered by the Army.  

3.  The evidence of record shows that the applicant's disability processing was completed in accordance with the laws and regulations in effect at the time, and that the applicant concurred throughout his disability processing.  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.  Regrettably, in view of the foregoing, there is no basis for granting relief to the applicant in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  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.  While the Board regrets that a more favorable response could not be accomplished, it wants to thank the applicant for the sacrifices he made in service to the United States, especially during Operation IRAQI FREEDOM.  The applicant and all Americans should be justifiably proud of his honorable 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)                                         AR20080005525



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ABCMR Record of Proceedings (cont)                                         AR20080005525



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