IN THE CASE OF:	  

		BOARD DATE:	        24 July 2008

		DOCKET NUMBER:  AR20080005678 


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 correction of his records to show he was medically retired instead of honorably separated.

2.  The applicant states that he acquired Post Traumatic Stress Disorder (PTSD) during his service in the Gulf War.

3.  The applicant provided the following additional documentary evidence in support of his request: 

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 17 June 1993.

	b.  Undated self-authored statement.

	c.  Undated statement from the applicant's sister.

	d.  Department of Veterans Affairs (DVA) Rating Decisions, dated 12 June 2007, 3 July 2007, and 4 December 2007.

	e.  A copy of applicant's entire DVA Health Information Record from April 2007 to February 2008.

	f.  Social Security Administration Letter, dated 11 December 2007.

	g.  Applicant's Chronological Record of Medical Care throughout his entire active duty military service.

	h.  Various DA Forms 4856 (General Counseling Form), dated on miscellaneous dates throughout the applicant's military service.

	i.  National Personnel Records Center letter, dated 27 September 2007.

	j.  DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 11 March 2008.

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 records show that he enlisted in the Regular Army for a period of 4 years on 15 September 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  The highest rank/grade the applicant attained during his military service was specialist (SPC)/E-4.  

3.  The applicant's records further show that he served in Southwest Asia during the Gulf War from 11 September 1990 to 9 April 1991.

4.  The applicant's awards and decorations include the Good Conduct Medal, the Combat Infantryman Badge, the Army Service Ribbon, the Army Lapel Button, the National Defense Service Medal, the Southwest Asia Service Medal with two bronze service stars, the Marksman Marksmanship Qualification Badge with Rifle Bar, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Kuwait Liberation Medal.


5.  On 13 January 1993, the applicant requested voluntary separation from the Army to start his college education.  His request was approved and he was accordingly separated on 17 June 1993.  The DD Form 214 he was issued shows he was honorably released from active duty in accordance with paragraph 5-17 of Army Regulation 635-200 (Personnel Separations), as directed by the Secretary of the Army.

6.  The applicant's chronological record of medical care shows that he was seen at various medical treatment facilities throughout his military career for routine acute care and periodic physical examinations.  However, the applicant’s records do not reveal that he was issued a permanent physical profile or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).

7.  On 12 June 2007, the DVA rendered a decision on the applicant compensating him at 100 percent disability for PTSD with depressive disorder and poly-substance abuse claimed as PTSD with fear of sleeping, nightmares, and tremors.  

8.  In an undated self-authored statement, the applicant states that he felt guilt during his service in Southwest Asia after being a part of a situation where other people suffered.  He further adds that upon his return to Fort Campbell, Kentucky, he felt depressed and became confrontational and aggressive.  He became fearful of sleeping and developed migraines and headaches and ultimately sought help from a psychiatrist.  However, after two weeks of treatment, he felt he was being labeled as weak Soldier and decided not to reenlist.  After his discharge, he lost several jobs, became involved with drugs and alcohol, and was labeled as "difficult."  He later received help from a DVA psychologist who diagnosed him with PTSD, and had since learned how to cope with his situation.  He concludes that he should have been evaluated for his condition after his return from combat and had the Army diagnosed him earlier, his life would have been different. 

9.  In her undated statement, the applicant's sister remarks that her brother changed during the Gulf war and became more distant and unsocial, which was unlike him.  He continues to battle on a daily basis and strives to live a normal life despite his depressive mood.

10.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  
11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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 chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

12.  Paragraph 3-1 provides that the mere presence of 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 reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

13.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two 
Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge narrative reasoning should be changed to medical retirement was carefully considered.  However, there is insufficient evidence to show he should have been medically discharged or retired by reason of PTSD. 

2.  There is no evidence in the available record and the applicant did not provide substantiating evidence that shows he was issued a permanent profile or that he underwent an MEB or a PEB.  The applicant in this case was honorably separated based on his own voluntary request in order to pursue his education.  The Army must find that a Soldier is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before the Soldier can be medically retired or separated.  

3.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  The DVA evaluates veterans throughout their lifetime, granting or adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.   The applicant has not shown error, injustice, or inequity for the relief he requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


															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)                                         AR20080005678



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ABCMR Record of Proceedings (cont)                                         AR20080005678



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