IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080008292 


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 disability with severance pay discharge of 23 April 2005 be voided and that he be retired by reason of disability with at least a 30 percent (%) disability rating on that same date.  

2.  The applicant states, in effect, that the Department of Veterans Affairs (VA) has diagnosed him with a Post Traumatic Stress Disorder (PTSD) and rated him 100% disabled, without considering his other combat related injuries.  He states that he still experiences shoulder problems where he was shot and that he also experiences spinal problems.  The Army did not recognize his problems before he got out, but the VA has found him permanently disabled.  He states that it has been over three years since his discharge and he has not recovered fully, and does not think he ever will.  He states that he should have received a higher disability rating from the Army and should have been medically retired.  

3.  The applicant provides no additional documentary evidence in support of his application.  


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 record shows that he enlisted in the Regular Army and entered active duty on 18 March 2003, and was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  

3.  On 27 September 2004, a Medical Evaluation Board (MEB) convened at Heidelberg, Germany, and evaluated the applicant's diagnosed condition of Left Upper Extremity Pain, Status Post Left Open Scapula Fracture.  The MEB referred the applicant's case for evaluation by a Physical Evaluation Board (PEB).  

4.  On 6 October 2004, an informal PEB convened in Washington D.C. to consider the applicant's case.  The PEB based on a review of the medical evidence of record concluded that the applicant's medical condition prevented his performance of duty in his grade and MOS, and recommended a disability rating of 10%, and that the applicant be separated with severance pay. 

5.  On 13 October 2004, the applicant non-concurred with findings of the informal PEB and requested a formal hearing.  

6.  On 10 December 2004, a formal PEB convened in Washington D.C. and reconsidered the applicant's case.  It determined the applicant's left upper shoulder condition was unfitting and awarded a 10% disability rating for this condition, it also found the applicant's chronic low back pain condition was unfitting and awarded a 10% disability rating for this condition, for a combined disability rating of 20%.  The PEB recommended the applicant's separation with severance pay.  The applicant non-concurred with the new PEB findings and recommendations.  

7.  On 4 January 2005, the President of the PEB notified the applicant that a medical addendum and photos, dated 17 December 2004, had been received.  He further indicated that the addendum provided no new substantive medical evidence; therefore, the PEB, affirmed the decision of the formal hearing that found him unfit with a disability rating of 20%.  The applicant was informed that his entire case file, including his rebuttal, would be forwarded to the United States Army Physical Disability Agency (USAPDA) for review.  

8.  On 19 January 2005, the USAPDA reviewed the applicant's case and concluded that the applicant's case was properly adjudicated by the PEB, which correctly applied the rules governing the Physical Disability Evaluation System (PDES) in making its determination.  The USAPDA further determined the findings and recommendations of the PEB were supported by substantial evidence and therefore, they were affirmed.  

9.  On 23 April 2005, the applicant was honorably discharged by reason of disability with severance pay.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 2 years, 1 month, and 6 days of active military service.  It also shows he received $6,451.20 of disability severance pay.  

10.  A VA letter, dated 28 September 2005, indicates that effective 24 April 2005, the applicant received a VA disability rating of 100% based on a PTSD.

11.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

12.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities. It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

13.  PTSD, an anxiety disorder, was recognized as a psychiatric disorder in 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM).  The condition is described in the current DSM-IV, pages 424 through 429.  The Army used established standards and procedures for determining fitness for entrance and retention and utilized those procedures and standards in evaluating the applicant at the time of his discharge. The specific diagnostic label given to an individual’s condition after his discharge from the service may change, but any change does not call into question the application of then existing fitness standards.

14.  Title 38, United States Code, sections 1110 and 1131, permits the Department of Veterans Affairs (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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received at least a 
30% disability rating and medical retirement from the Army was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the PDES process.  It further shows that a formal PEB ultimately determined the applicant was unfit for service, and granted him a combined disability rating of 20% for shoulder and low back pain, and recommended his disability discharge with severance pay.  The USAPDA reviewed the PEB findings and recommendations and determined they were supported by substantial evidence.  As a result, the findings and recommendations of the PEB were affirmed by the USAPDA.  


3.  The evidence also confirms the VA awarded the applicant a 100% disability rating for a PTSD condition diagnosed in 2005.  However, while both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The VA may rate any service connected impairment, thus compensating for loss of civilian employment.  It may also award 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.  It can also evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.  

4.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  As a result, the applicant was properly compensated with severance pay at the time of his discharge, and he is now properly being rated, treated, and compensated for all his service connected conditions by the VA.  

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)                                         AR20080008292



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ABCMR Record of Proceedings (cont)                                         AR20080008292



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