IN THE CASE OF:	  

		BOARD DATE:	  	  28 October 2008

		DOCKET NUMBER:  AR20080010112 


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 be voided and that he be retired by reason of disability with at least a 50 percent disability rating.  

2.  The applicant states, in effect, that he should have a chapter 61 (sic) discharge due to the fact he was discharged with a 10 percent disability rating for Post Traumatic Stress Disorder (PTSD).  He further states that service members that are discharged with mental disorders due to a traumatic event should have a 50 percent disability rating.  A medical retirement is 30 percent.

3.  The applicant provides a copy of his medical records (40 pages), a copy of his Medical Evaluation Board (MEB), a copy of his Physical Evaluation Board (PEB), and his separation document (DD Form 214), in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that after having served in the Regular Army in an enlisted status he was appointed as a United States Army Reserve (USAR) Second Lieutenant and commissioned on 19 June 2002.  On 12 October 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  On 7 January 2005, the applicant deployed to Iraq.


2.  In February 2005, while serving in Iraq, the applicant fell out of the back of a truck.  He landed on his feet, but aggravated his right knee.  He received conservative treatments with anti-inflammatory medications and physical therapy 
to treat his injury.  The applicant continued to have sharp pain in his right knee, which prevented him from performing his duties in his military occupational specialty.  The applicant underwent arthroscopy surgeries to relieve his pain.  

3.  On 20 December 2005, the applicant was placed in the Mental Health Outcomes Program at Madigan Army Medical Center, Spokane, Washington, as a part of a demobilization evaluation after returning from Iraq.  He was given the diagnosis of adjustment mood symptoms, post-deployment.  While in Madigan Army Medical Center the applicant had multiple examinations and x-rays on the right knee.

4.  On 12 October 2006, an MEB convened at William Beaumont Army Medical, EL Paso, Texas.  The MEB diagnosed the applicant as having Synovitis of the right knee and PTSD.  The MEB determined that the applicant's diagnosed conditions of Synovitis of the right knee and PTSD (mild) were unfitting and he did not meet medical retention standards.  The MEB referred the applicant's case for evaluation by a PEB.  

5.  On 13 October 2006, the applicant concurred with the MEB findings.

6.  On 14 November 2006, a PEB convened at Fort Lewis, Washington, and considered the applicant's case.  The PEB found the applicant physically unfit and recommended a combined rating of 20 percent and that the applicant be separated with severance pay.  The applicant concurred with the PEB's findings and recommendation.

7.  On 5 January 2007, the applicant was honorably discharged by reason of disability with severance pay.  The DD Form 214 he was issued at the time shows he completed a total of 2 years, 2 months, and 24 days of active military service.  It also shows he received disability severance pay in the amount of $39,366.00.  

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  If a Soldier is found unfit because of physical disability, this Army regulation provides for disposition of the Soldier according to applicable laws and regulations.

9.  Army Regulation 635-40, paragraph 4-10 (The medical evaluation board), provides that medical evaluation boards 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

10.  Army Regulation 635-40, paragraph 4-17 (Physical evaluation boards), provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board and its findings and recommendation may be revised.  It is a fact-finding board for the following: (1) investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board; (2) evaluating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; (3) providing 
a full and fair hearing for the Soldier as required under Title 10, United States Code, section 1214; and (4) making findings and recommendation required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 

11.  Title 10, United States Code (USC), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Title 10, USC, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

12.  Department of Defense Instruction Number 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability; making administrative determinations for Service members with Service-incurred or Service aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.  Enclosure
3 (Procedures), Part 7 (Final Disposition), paragraph E3.P7.2 (General Rules Regarding Disposition), subparagraph E3.P7.2.1.1, provides that members with a disposition of separation for physical disability who have 15 but less than
20 years of service computed under Title 10, USC, section 1208 (10 USC 1208) and whose unfitting conditions are not due to the member’s intentional 
misconduct or willful neglect or incurred during a period of unauthorized absence, 
shall be afforded the opportunity to elect separation for physical disability or to apply for, and if approved, non-disability retirement under the Temporary Early Retirement Authority (TERA) under 10 USC 3911 during the period of temporary 
special qualification authority beginning on 23 October 1993 and ending on
31 December 2001.  Further, the same opportunity shall be afforded to members recommended for placement on or separation from the TDRL.

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 the then existing fitness standards.

14.  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 a disability incurred while entitled to basic pay.  Sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.
The DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

15.  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.  The 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, there is insufficient evidence to warrant relief.

2.  The evidence of record shows that the applicant appeared before a PEB on 14 November 2006.  The evidence of record also shows that the PEB considered the applicant’s medical conditions described in his medical records and the evidence presented at that time.  Based on a review of the medical evidence of 

record, the PEB concluded that the applicant’s medical condition prevented the performance of duty in his grade and MOS, recommended a combined disability 
rating of 20 percent, and considered the proper disposition of the applicant to be separation with severance pay.  The evidence of record also shows, at the time of the PEB’s recommendation, the applicant had less than 20 years of active federal service.

3.  There is no evidence of record to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the processing of the applicant's MEB or PEB.

4.  The evidence of record shows that Title 10 USC 1201 provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent, whereas Title 10 USC 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.  Thus, the PEB’s recommendation of separation with severance pay was proper and in accordance with the governing code.  

5.  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.

6.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  The applicant fails to provide such evidence.  Thus, the applicant's MEB and PEB proceedings are presumed proper and equitable.  Therefore, the applicant is not entitled to correction of his records to show he was retired by reason of permanent physical disability.

7.  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)                                         AR20080010112



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ABCMR Record of Proceedings (cont)                                         AR20080010112



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