IN THE CASE OF:
BOARD DATE: 18 December 2008
DOCKET NUMBER: AR20080014351
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, correction of his military records to show that he was medically retired.
2. The applicant states, in effect, that the Physical Evaluation Board (PEB) at Fort Lewis, Washington, disregarded all applicable regulations and laws in making a determination of only a 10-percent disability for post traumatic stress disorder (PTSD). He contends that he was not afforded the opportunity to discuss the PEBs findings and was not assigned legal representation. He was not counseled in accordance with all applicable rules of the Army Physical Disability Evaluation System (APDES) and there is no evidence in his medical records obtained by the Department of Veterans Affairs (VA) showing that he was advised of his rights regarding the PEB.
3. The applicant provides copies of a guide for the APDES (26 pages), dated 16 March 2007; VA Schedule for Rating Disabilities; Title 10, U.S. Code, sections 1201 and 1203; and Table 8, Psychiatric Functional Impairment Guideline Summary.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 25 January 1978, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty (MOS) 95B (Military Policeman).
3. On 5 September 1986, the applicant was promoted to staff sergeant, pay grade E-6.
4. Item 4 (Assignment Considerations) of his Personnel Qualification Record, Part II, shows that he was diagnosed [date unavailable] with a heart murmur. It further indicates that he was to take the alternate physical fitness test. On 23 July 1987, an MOS reclassification board retained him in his MOS of 95B.
5. Orders 196-0001, Headquarters, Fort Carson, Colorado, dated 15 July 1993, directed that the applicant be discharged effective 19 August 1993. It authorized disability severance pay in the pay grade E-6 based on a 10-percent physical disability.
6. On 19 August 1993, the applicant was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) due to a physical disability with severance pay. He had attained the rank of staff sergeant, pay grade E-6, and had completed 15 years, 6 months, and 25 days of creditable active duty service.
7. The applicants service medical records, to include the proceedings of his Medical Evaluation Board (MEB) and PEB, are not available for review.
8. Title 10, U.S. 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.
9. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.
10. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.
DISCUSSION AND CONCLUSIONS:
1. There is no available evidence showing that the applicant suffered from PTSD or that PTSD was the proximate cause of his discharge due to physical disability.
2. The applicant's service medical records, to include the proceedings from the MEB and PEB, are not available for review to determine if either or both of these medical boards erred in making their decisions or if administrative errors were made in not following MEB/PEB processing procedures.
3. 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 the aforementioned requirement.
4. In view of the above, the applicants request should be denied.
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.
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) AR20070016793
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20080014351
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120000462
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. The evidence of record shows the VA increased the applicant's disability rating from 10% to 40% for degenerative joint disease and granted him a 0% disability rating for a scar on posterior aspect his neck almost 20 years after he was discharged. As a result he was discharged from active duty under the provisions...
ARMY | BCMR | CY2007 | 20070015851
The applicant also states that the Boards analysis stated that his asthma condition was not evaluated because he did not include it in his appeal. On 11 January 2005, a Medical Evaluation Board (MEB) referred the applicant to a PEB after diagnosing his condition as left knee pain, EPTS (existed prior to service). In addition, as the applicant noted the regulation requires the PEB to consider the overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation.
ARMY | BCMR | CY2008 | 20080010112
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 evidence of record also shows that the PEB considered the applicants 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 applicants medical condition prevented the performance of...
ARMY | BCMR | CY2013 | 20130012437
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. Consequently, his records were evaluated by an MEB that referred him to a PEB. The PEB found him medically unfit, rated his disabling condition at 10 percent, and recommended his...
ARMY | BCMR | CY2011 | 20110016489
He provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * medical evaluation board (MEB) initiation and retention memoranda * Department of Veterans Affairs (VA) disability rating decisions * numerous VA medical records CONSIDERATION OF EVIDENCE: 1. On 3 May 1993, an informal PEB determined he was physically unfit for diabetes mellitus (VA Schedule for Rating Disabilities (VASRD) code 7913). The PEB recommended his separation with severance pay with a 10-percent...
ARMY | BCMR | CY2008 | 20080004922
The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214), VA Rating Decisions, Physical Evaluation Board (PEB) Proceedings and Medical Evaluation Board (MEB) Proceedings with associated documents, and his Enlisted Record Brief. In a VA Rating Decision, dated 3 April 2006, the VA increased the applicants rating for PTSD from 50 to 70 percent disabling. The available evidence clearly shows that the applicant was medically disabled and was...
ARMY | BCMR | CY2010 | 20100000192
The applicant provides copies of the following documents: * A memorandum from the U.S. Army Medical Department Activity, Department of Psychiatry, Fort Carson, Colorado * Two Medical Evaluation Board (MEB) Consultations * MEB and PEB Proceedings CONSIDERATION OF EVIDENCE: 1. The evidence of record shows in 1993 he was directed to an MEB after being diagnosed with PTSD. He has failed to show with the evidence submitted and with the evidence of record that he should have received a higher...
ARMY | BCMR | CY2014 | 20140015854
The first page of a VA Rating Decision, dated 10 December 2008, that shows he was granted 30 percent service-connected disability compensation by the VA for major depressive disorder. The applicant's record is void of medical documentation that indicates he was suffering from an unfitting PTSD condition or any other unfitting medical condition during his active duty service, aside from "chronic mid-back pain and chronic neck pain." Army Regulation 635-40 establishes the Army Physical...
ARMY | BCMR | CY2009 | 20090001879
On 22 October 2004, a medical evaluation board (MEB) convened at William Beaumont Army Medical Center, El Paso, TX, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medical condition of chronic, moderate to severe PTSD. 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...
ARMY | BCMR | CY1995 | 9508215C070209
The board determined that he was physically unfit, recommended a disability rating of 10 percent, and separation with severance pay. 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 rated at least 30 percent. RECOMMENDATION: That all of the Department of the Army records related to this case be corrected: a. by showing that the action separating the individual concerned from active...