IN THE CASE OF:	  

		BOARD DATE:	       14 August 2008

		DOCKET NUMBER:  AR20080006713 


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 physical disability rating of 10 percent be increased and that his records be corrected to show he was retired by reason of physical disability.  

2.  The applicant states that the nature and severity of his medical status incurred in the combat zone is 100 percent based on Army standards and according to the professional doctors outside the military.  He states that his military career ended and he continues to suffer from this sickness.  He also states that he is unemployable with permanent Post Traumatic Stress Disorder (PTSD).  The Social Security Administration found him disabled and unemployable immediately on 14 April 2005.  On 13 April 2005, the Army found him only 10 percent disabled.  He states that seven months later on 15 November 2005, the Department of Veterans Affairs (VA) found him 100 percent disabled.  Even though the Army and the VA rate differently, this difference is very noticeable.  The Army deliberately shortchanged him.  

3.  The applicant provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 13 April 2005 and 17 April 2004; his DD Form 215 (Correction to DD Form 214), dated 27 September 2007; a letter from the Social Security Administration, dated 1 May 2006; a letter from the New York City Employees’ Retirement System, dated 11 April 2006; two letters from the VA, dated 11 June 2007 and 13 March 2007; articles from the Army Times, his Medical Evaluation Board (MEB) Proceedings, dated 9 March 2005; and his Physical Evaluation Board (PEB) Proceedings, dated 17 March 2005.
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 22 October 1994.  At the completion of active duty for training, he was awarded military occupational specialty 31C (single channel radio operator).  He was promoted to staff sergeant on 1 May 2000.

2.  He served on active duty from 19 February 2003 to 17 April 2004 in support of Operation Enduring Freedom.

3.  He was ordered to active duty on 12 August 2004 in support of Operation Iraqi Freedom.  

4.  A MEB evaluated the applicant on 9 March 2005.  The MEB found that the applicant had major depressive disorder, single episode, severe without psychotic features.  The MEB proceedings indicated the approximate date of origin as November 2004; that the disorder was incurred while he was entitled to base pay; and that the disorder was permanently aggravated by service.  He was referred to a PEB.  

5.  An informal PEB convened on 17 March 2005.  The PEB described the applicant’s disability as major depressive disorder, single episode, severe without psychotic features, with onset in November 2004 while deployed to Kuwait.  The PEB proceedings indicated that depression was manifested with depressed mood and affect, decreased energy and motivation, difficulty concentrating, decreased sleep, suicidal ideations, and loss of interest in daily activities.  The PEB proceedings indicated that the applicant was being treated with antidepressant and anti-anxiety medications with some improvement in his depressive symptoms.  It was further indicated that the applicant was mentally competent to manage medical, financial, and legal affairs.  Based on a review of the medical evidence of record, the PEB concluded that his medical condition prevented performance of duty in his grade and specialty.  The PEB found the applicant was physically unfit for military service and recommended separation with severance pay and a combined disability rating of 10 percent.  There is no evidence to show he appealed the PEB.  

6.  The applicant was honorably discharged from active duty on 13 April 2005 under the provisions of Army Regulation 635-40, paragraph 4-24b(3) by reason of disability with severance pay.  

7.  On 11 June 2007, the DVA increased the applicant’s service connection condition of PTSD (which represented a continuation of major depressive disorder) from 30 percent to 100 percent disability rating effective 15 November 2005.

8.  In the processing of this case, a staff advisory opinion was obtained from the United States Army Physical Disability Agency (PDA).  This office recommended that the applicant’s records should be corrected to reflect placement on the Temporary Disability Retired List (TDRL) at 30 percent effective 13 April 2005, with directions to provide a TDRL re-evaluation as soon as possible after implementation of the correction.  The opinion stated that the applicant was on psychiatric medications and undergoing therapy for a depressive disorder at the time of his separation in 2005.  He was noted to be nervous and upset with his command.  The applicant’s psychiatrist opined that his condition was severe, but his prognosis was fair to guarded.  However, the Narrative Summary (NARSUM) indicated that his thought process was organized and he had no formal thought disorders.  The applicant was described as alert and oriented in all spheres, with fair insight and current good judgment.  It was pointed out that, although the applicant was not working in his military occupational specialty, he was performing adequate clerical work on a full-time basis.  The opinion also stated that, based on a full review of the applicant’s condition in 2005, the applicant should have been rated at 30 percent for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to depressed mood.  

9.  A copy of the advisory opinion was forwarded to the applicant and he concurred.

DISCUSSION AND CONCLUSIONS:

1.  A 17 March 2005 PEB found the applicant unfit for military service due to a major depressive disorder at a 10 percent combined disability rating.  As a result, he was discharged from active duty on 12 April 2005 due to physical disability with severance pay.  

2.  The advisory opinion from PDA recommended that the applicant’s records be corrected to reflect placement on the Temporary Disability Retired List (TDRL) at 30 percent effective 13 April 2005 with a TDRL re-evaluation as soon as possible.  

3.  It appears that the applicant’s disability was improperly rated by the PEB and it would be appropriate to afford him the opportunity to undergo a TDRL medical evaluation and to place him on the TDRL with a 30 percent disability rating.   


BOARD VOTE:

__xx____  ___xx___  ____xx__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

		a.  placing him on the TDRL at a 30 percent combined disability rating effective 13 April 2005;

		b.  affording him the opportunity to undergo a TDRL medical evaluation as soon as possible; and

		c.  referring the results of the TDRL medical evaluation to the PDA for appropriate disposition.  




      _____xxxx   _______   ___
       	   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)                                         AR20080006713





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ABCMR Record of Proceedings (cont)                                         AR20080006713



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