IN THE CASE OF:	

		BOARD DATE:	  16 April 2009

		DOCKET NUMBER:  AR20080019458 


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 release from active duty on 26 October 2002 be corrected to a medical retirement.

2.  The applicant states that he could not perform his duties due to Post-Traumatic Stress Disorder (PTSD), and problems with both knees, left shoulder, left hand, hearing, and hypertension.

3.  The applicant provides a copy of excerpts of his military health record and his Department of Veterans Affairs (VA) rating decisions.

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 military records show that he enlisted in the Regular Army and honorably served from 10 May 1983 to 9 March 1987.  Upon his release from active duty he was transferred to a Maryland Army National Guard (MDARNG) unit.

3.  The applicant was ordered to active duty in support of Operation Desert Shield/Storm on 3 January 1991, served in Southwest Asia as a military police from 14 February to 28 May 1991, and was honorably released from active duty on 19 June 1991.

4.  The applicant reentered active duty on 6 October 2001 and was assigned to Fort Detrick, MD.

5.  The applicant's medical records show:

	a.  On 15 November 2001, he reported experiencing pain and weakness in his left knee after playing basketball and running.  The applicant stated that he had a similar episode one or two years ago.

	b.  On 20 February 2002, the applicant was seen for severe depression and a history of PTSD.  The applicant claimed to have suffered from PTSD since 1991, and had just separated from his wife and was in the process of being divorced.  The applicant reported mood changes, suicide thoughts, sexual difficulties, and trouble sleeping.

	c.  On 25 February 2002, the applicant reported having been depressed for "years" with worsening since activation in 2001.  The applicant described his depression as lethargic, gloomy, low self-esteem, crying, and better off not being here.  The applicant reported having been hospitalized for about 30 days following Operation Desert Storm.  This hospitalization was for alcohol rehabilitation.  The applicant reported staying abstinent from alcohol for about 8 or 9 months following that hospitalization.  The physician conducting the interview provided a psychological assessment of, "Predisposing factors include guilty feelings about taking pictures of bodies and POWs [prisoners of war] in the Gulf War, hard life with intermittent father attendance, poverty in childhood, growth, schooling, and development in a hard neighborhood.  He also has questionable [history] of PTSD."  The physician stated that the applicant was fit for full duty.

	d.  The applicant continued to receive follow-up treatment for depression and sexual dysfunction.  He was prescribed counseling, therapy, medication, and convalescent leave.  

	e.  During the applicant's continued medical treatment, he started reporting irritability and short temper.  However, he continued to be determined fit for full duty.

	f.  On 2 August 2002, the applicant reported having recurrent intrusive recollections, nightmares, avoidance of discussions of events, feeling numb or comatose, irritability and lack of concentration.

	g.  On 3 August 2002, while the applicant was found fit for duty, he was given temporary profile restrictions of no firearms and no night duty, the profile to end on 30 October 2002.

	h.  On 20 September 2002, the applicant was given a demobilization physical examination.  At that time the applicant's PTSD, sprained wrist, injured shoulder, high frequency hearing loss, right knee instability, and hypertension were noted; the applicant was given specialist evaluations in these areas of concern; and he was determined medically qualified with profile limitations.

6.  Accordingly, on 26 October 2002, the applicant was honorably released from active duty and returned to his ARNG unit.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), which governs the processing of Soldiers under the Physical Disability Evaluation System (PDES), provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  Specifically, Chapter 3, Policies, paragraph 3–1, Standards of unfitness because of physical disability, states the following:

	a.  The mere presence of an 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.



	b.  Objectives of standards.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualifications standards have been established in Army Regulation 40–501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to a MEBD.  The major objective of these standards is to achieve uniform disposition of cases arising under the law.  These retention standards and guidelines should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation from the Army.  The fact that the Soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness.

8.  Title 10, U.S. Code, Chapter 61 (Retirement or Separation for Physical Disability), provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of Soldiers who incur a permanent physical disability in the line of duty while serving on active or inactive duty.  

9.  Title 38, U.S. Code permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  Confusion arises from the fact that different rating systems are used by the Army and the VA.  While both use the Veterans Affairs Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability. 


10.  Pertinent Army Regulation also state that if an Existing Prior to Service (EPTS) condition was aggravated by military service, the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be Not In Line of Duty – Not Due to Own Misconduct (NLD-NDOM), EPTS.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

11.  The Court of Claims and the Comptroller General of the United States have held that short periods of active duty do not give rise to the presumption of the cause of an illness or disease.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has submitted documents which show that he was treated for a variety of medical conditions while he was on active duty for 1 year and 21 days. However, none of these conditions were determined to be medically disqualifying.  To the contrary, he was repeatedly determined to be medically fit, including during his demobilization physical examination.

2.  Without a finding of medical disqualification, he could not have been considered by an MEB.  Without an MEB he could not have been considered by a PEB.  Without a PEB, the applicant could not have been medically retired.

3.  It is also noted that the applicant had a history of knee weakness, and he had a history of civilian problems which was causing him emotional turmoil.  While the applicant reported having PTSD symptoms later in his period of active duty, there is no evidence to show that he exhibited symptoms of PTSD prior to that time.  As such, it would appear that many of the applicant's medical and psychological problems were EPTS.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080019458



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ABCMR Record of Proceedings (cont)                                         AR20080019458



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