IN THE CASE OF:	  

		BOARD DATE:	  26 March 2009

		DOCKET NUMBER:  AR20080018984 


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, an increase in his Army disability rating.

2.  The applicant states, in effect, his total combat related disability rating for Combat-Related Special Compensation (CRSC) is 80 percent, based on Purple Heart-related injuries and a post-traumatic stress disorder (PTSD).  He also states he is rated at 100-percent disabled by the Department of Veterans Affairs (VA) due to being unemployable, of which 50 percent is related to his PTSD, and that his Army disability rating for PTSD is 0 percent and should be upgraded to 100 percent.

3.  The applicant provides a CRSC decision letter and refers to his VA record and claim number 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 was inducted into the Army and entered active duty on 21 December 1965.  He was trained in and was awarded military occupational specialty 11F (Infantry Operations and Intelligence Specialist).  Specialist four (SP4) is the highest rank he attained while serving on active duty.

3.  The applicant's record shows he served in the Republic of Vietnam (RVN) from 22 September 1966 through 8 June 1967, at which time he was wounded in action and initially medically evacuated to Japan and ultimately to Fort Gordon, Georgia.

4.  On 30 October 1967, the applicant was honorably released from active duty (REFRAD) by reason of convenience of the government under the provisions of section VII, chapter 5, Army Regulation 635-200 (Personnel Separations), based on the completion of his hospitalization and his intent not to reenlist.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he completed 1 year, 10 months, and 10 days of active military service and held the rank of SP4 on the date of his REFRAD.

5.  As a result of a decision of this Board on 25 June 1969, the applicant's record was corrected to show that on 30 October 1967, instead of being REFRAD for the convenience of the government, the applicant was retired by reason of physical disability and placed on the temporary disability retired list (TDRL) with a 60-percent disability rating.  The Board decision was based on the fact the applicant suffered from the following diagnosed disabling medical conditions at the time of REFRAD and that that these conditions were rated at 60-percent disabling by the VA:  shell fragment wounds, neuropathy, left ulnar nerve; residuals shell fragment wound-buttock; residuals shell fragment wound-knee; residuals shell fragment wound-left thigh; residuals shell fragment wound-mid third left lower extremity; residuals shell fragment wound-lower right extremity, with fracture right tibia; and residuals shell fragment wound-right fourth in ankle.

6.  The applicant's military medical record contained no treatment records and there are no VA treatment records that show the applicant was diagnosed with or suffered from PTSD at the time of his REFRAD in 1967 or when the Board rendered its decision in 1969.

7.  On 4 February 1971, a physical evaluation board (PEB) completed a TDRL reevaluation of the applicant's case and determined he was fit for duty.  The PEB recommendation was modified by the U.S. Army Physical Review Council to provide for permanent retirement with a 40-percent disability rating and the applicant concurred with this modification.  There was no documented diagnosis of PTSD presented during this review.

8.  On 30 April 1971, the applicant was permanently retired by reason of disability with a 40-percent disability rating.

9.  On 6 August 2008, the U.S. Army Human Resources Command CRSC Division awarded the applicant CRSC for the following conditions for which the applicant was awarded the Purple Heart:  buttocks injury; lower leg muscle injury, left and right legs; paralysis of ulnar nerve, left wrist; thigh muscle injury; and thigh muscle injury, left leg.  The Purple Heart-related disability rating was 50 percent.  It also conceded PTSD at 50 percent, due to combat awards and VA documents.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

11.  Paragraph 3-1 of the same regulation 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 his or her 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, U.S. Code, sections 1110 and 1131, 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. The VA can evaluate a veteran throughout his or her 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 his Army disability rating should be increased to 100 percent was carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record confirms that subsequent to his receiving a disability retirement and placement on the TDRL as a result of action by this Board, the applicant was properly processed by the Army's PDES during his TDRL reevaluation.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.

2.  The record further shows that after the PEB determined the applicant was fit, the U.S. Army Physical Review Council modified the findings and recommendations of the PEB to show the applicant was unfit for further service and recommended he be retired by reason of permanent disability with a combined disability rating of 40 percent based on diagnosed disqualifying conditions, which did not include PTSD.  The applicant concurred with the modified findings and recommendation and was accordingly retired on 30 April 
1971.

3.  The evidence of record fails to show the applicant was diagnosed with or suffered from a disqualifying PTSD or any other mental condition, or that any mental condition rendered him unable to perform his duties, at the time of his retirement or subsequent processing through the PDES.  The evidence does 

confirm he was subsequently diagnosed with PTSD and awarded service connection and a disability rating for this condition by the VA, well after his processing through the PDES and retirement from 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 or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

4.  An award or 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.  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 assigned a disability rating from the Army based on the unfitting diagnosed conditions at the time of his retirement, and is now properly being 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)                                         AR20080018984



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ABCMR Record of Proceedings (cont)                                         AR20080018984



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