IN THE CASE OF:	  

		BOARD DATE:	       30 October 2008

		DOCKET NUMBER:  AR20080008223 


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 honorable discharge by reason of disability with severance pay be changed to disability retirement.

2.  The applicant states, in effect, that the Department of Veterans Affairs (VA) rated him for PTSD (post traumatic stress disorder) and if the Army had done so he would have been retired for disability.  

3.  The applicant provides copies of a 31 December 2007 letter from a Licensed Clinical Social Worker; his DD Form 214 (Certificate of Release or Discharge from Active Duty); VA rating decisions; a DA Form 199 (Physical Evaluation Board (PEB) Proceedings); and extracts of his medical records, in support of his application.
 
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 30 July 2003, completed cannon crewmember and basic airborne training, and served in Afghanistan.  He was separated on 1 May 2007 due to physical disability with severance pay because of a back injury.

2.  Subsequent to his separation from active duty the applicant was evaluated by the VA in September 2007, and afforded 10 percent ratings for each of the following three conditions: mild degenerative disc disease; radiculopathy of the right lower extremity with restless leg syndrome; and post-traumatic left occipital neuralgia with recurrent headaches.   

3.  He reapplied to the VA and, on 30 May 2008, and was granted an additional rating of 30 percent for PTSD.

4.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

5.  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 of at least 30 percent.

6.  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 of less than 30 percent.

7.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating.

8.  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.

9.  During the processing of this case an advisory opinion was obtained from the Army Physical Disability Agency.  It cites the regulatory provision that only conditions that adversely impact the performance of duty can be rated.  It also notes that there was no available evidence that any additional conditions were disabling at the time of separation.  Denial of the applicant's request was recommended. 

10.  The applicant responded by pointing out that he had reenlisted three times and that his separation from the Army was not his choice.  He notes that he was trained to do his duty without feelings or emotion, but now finds that the lack of emotion has affected his personal life.  He describes the difficulties he has had 

adjusting to civilian and family life and the alienation he feels from his family.  He feels that not rating him for PTSD is punishing him for not speaking up in time about the feelings that he did not know he had.
 
 DISCUSSION AND CONCLUSIONS:

1.  The applicant was not rated for PTSD by the Army because it did not adversely impact upon his performance of duty.  If he had stayed on active duty it might have.  However, that situation is no different than his back condition getting worse over time.  

2.  The Army can rate only a condition that adversely impacts upon the member's performance of duty and, then, only to the extent that it does so at the time of the evaluation.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

4.  The VA 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, the applicant's medical condition, although not considered medically unfitting for military service at the time of separation, discharge or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

5.   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.






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
      
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)                                         AR20080008223



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ABCMR Record of Proceedings (cont)                                         AR20080008223



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