IN THE CASE OF:	  

		BOARD DATE:	        18  February 2009

		DOCKET NUMBER:  AR20080016541 


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 Evaluation Board (PEB) results be amended to show 50 percent disability, that his discharge for a combat-related disability be voided, and that he be placed on the Temporary Disability Retired List (TDRL) and reevaluated by appropriate medical authorities. 

2.  The applicant states that he received documentation that informed him there was an error in his PEB results. 

3.  The applicant provides a copy of his PEB Proceedings, Medical Evaluation Board (MEBD) Proceedings, a letter from the U.S. Army Physical Disability Agency (USAPDA), and his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Records show the applicant entered active duty on 22 June 2004 and served until he was honorably discharged on 6 August 2008 by reason of "disability, severance pay, combat-related."  He served in a designated imminent danger pay area/Iraq during the period 6 December 2005 - 1 December 2006.

2.  On 22 April 2008, the applicant underwent an MEBD which diagnosed him with Post-Traumatic Stress Disorder (PTSD), alcohol dependence, and hyperlipidemia [excess lipids in the blood].  The MEBD referred the applicant to a PEB to determine if he met military medical standards for retention.

3.  The applicant agreed with the findings and recommendation of the MEBD.

4.  On 20 May 2008, the applicant underwent a PEB which recommended that he be awarded a 10 percent disability rating for PTSD.  The PEB proceedings specifically describe the applicant's disability as "PTSD onset following a tour in Iraq as a medic during the period December 2005 - December 2006, where the applicant was exposed to carnage in the course of his medical duties."  The proceedings identified the following symptoms: anxiety, sleep disturbance, and attempted suicide.  The proceedings further showed that the applicant was found unfit for further military service due to risk of decompensation in combat.

5.  The PEB's findings show that in addition to the 10 percent disability rating, the applicant should be separated with disability severance pay.

6.  On 2 June 2008, the applicant concurred with the findings of the PEB and waived a formal hearing of his case.

7.  On 6 August 2008, the applicant was honorably separated in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and the 2008 National Defense Authorization Act (NDAA).  The applicant was provided $14,318.40 in disability severance pay.

8.  On 28 August 2008, the USAPDA notified the applicant that an error was made in the adjudication of his PEB and that he was improperly rated.  The letter further advised the applicant that had the error been caught prior to his discharge, then his disability rating would have been 50 percent and he would have been placed on the TDRL.  This letter further advised the applicant that if he elected to file for correction, he would be subject to recoupment of the severance pay that he previously received.

9.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

   a.  Paragraph 3–9 provides guidance for the TDRL.  Specifically, it states that the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, 
grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. States Code, section 1208, (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

   b.  Paragraph 4-17 provides guidance for  PEBs.  Specifically, it states 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.  Its findings and recommendation may be revised. 

10.  The Department of Veterans Affairs Schedule for Ratings Disabilities (VASRD), section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

11.  The 2008 National Defense Authorization Act, section 3.1, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the Department of Veterans Affairs.  The current VASRD shows that individuals who have been diagnosed with PTSD or mental conditions caused by a severe emotional event which make them unfit to perform military duties are given a 50 percent disability rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and determined to have merit.

2.  The 2008 NDAA provided that the VASRD must be utilized during the medical evaluation of military personnel.  Based on the VASRD, the applicant's diagnosis of PTSD warrants a 50 percent disability rating.  Therefore, the applicant is entitled to have his PEB Proceedings amended to show a 50 percent disability rating for PTSD.

3.  As a result, the applicant is also entitled to placement on the TDRL and reevaluation of his medical condition.  Therefore, the applicant's disability discharge should be revoked and the applicant placed on the TDRL, effective
6 August 2008.  Additionally, the applicant's separation document should be amended to show placement on the TDRL.
4.  The Defense Finance and Accounting Service should audit the applicant's pay account and ensure appropriate payment as a result of the above corrections.  It is noted that the applicant acknowledged that by filing this request for correction, he is subject to recoupment of the severance pay he received as a result of his disability discharge.  

BOARD VOTE:

___X_____  ____X___  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  amending the applicant's PEB proceedings to show 50 percent disability rating for PTSD;

	b.  placing the applicant on the TDRL, effective 6 August 2008; and

	c.  amending the applicant's separation document to show placement on the TDRL, effective 6 August 2008.

2.  The Board further recommends that the Defense Finance and Accounting Service audit the applicant's pay account and ensure appropriate recoupment/
payment as a result of the above corrections.



      _________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)                                         AR20080016541



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ABCMR Record of Proceedings (cont)                                         AR20080016541



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