IN THE CASE OF:	

		BOARD DATE:	 30 April 2009 

		DOCKET NUMBER:  AR20090000647 


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 he be medically retired from the Army.

2.  The applicant states, in effect, that he was separated from the Army in October 1997 due to medically disqualifying conditions and placed on the Temporary Disability Retirement List (TDRL).  The Department of Veterans Affairs (VA) evaluated him in 1997 and rated his disability at 50 percent.  He further states he received notification in June 2001 that he was removed from the TDRL with a 0-percent disability rating.  In 2006, the VA rated his disability, post-traumatic stress disorder, at 100-percent disabling.  He states he has not been gainfully employed due to his unemployability since his medical separation in 1997.  He now asks for full retirement benefits based on his post-traumatic stress disorder diagnosis.

3.  The applicant provides, in support of his application, copies of his Medical Board Summary; his Medical Evaluation Board (MEBD) Proceedings; his informal Physical Evaluation Board (PEB) Proceedings; multiple pages of chronological records of medical care, to include those from Walter Reed Army Medical Center (WRAMC); multiple narrative summaries from psychological examinations; and his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 10 October 1997.





COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's discharge be changed from medically separated with severance pay to permanent disability retirement.
2.  Counsel states, in effect, that the applicant's discharge should be changed from medically separated with severance pay to retirement with permanent disability.

3.  Counsel provides, in support of this application, copies of the applicant's medical board summaries; his MEBD Proceedings; his informal PEB Proceedings; multiple pages of chronological records of medical care, to include those from WRAMC; multiple narrative summaries from psychological examinations; and his DD Form 214 with a separation date of 10 October 1997.

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 personnel record shows he enlisted in the Regular Army on 22 August 1987.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 91B (Medical Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 5 (Overseas Service) that he served in Saudi Arabia from 3 December 1990 to 4 May 1991.

4.  On 14 January 1997, an MEBD referred the applicant to a PEB for the following medical conditions which were found to be medically unfitting:

	a.  post-traumatic stress disorder, chronic with delayed onset manifested by feelings of helplessness, nightmares of carnage, fear of war, irritability, decreased concentration, detachment from others, sleep disturbance, anhedonia, impairment in occupational functioning, and severe stress associated with his experiences during Operation Desert Storm; and

	b.  major depressive disorder, single episode, severe, without psychotic features, manifested by sleep disturbance, anhedonia, guilt, decreased energy, decreased concentration, decreased appetite, and psychomotor retardation.

5.  On 19 February 1997, an informal PEB found the applicant unfit for duty under the following Veterans Affairs Schedule for Rating Disabilities (VASRD) codes and conditions:

	a.  9434 - post-traumatic stress disorder, rated 30-percent disabling; and

	b.  9411 - major depressive disorder without psychotic features, rated 
30-percent disabling and noted that the applicant had served in the Gulf War theater of operations.

6.  The PEB found the applicant physically unfit and recommended a combined rating of 30 percent and that the applicant be placed on the TDRL with reexamination on or about 1 August 1998.  Further, the PEB stated that the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

7.  On 18 April 1997, the U.S. Army Physical Disability Agency (USAPDA) modified the findings of the PEB dated 19 February 1997.  The USAPDA findings were that the post-traumatic stress disorder symptoms were a part of the applicant's major depressive disorder.  Therefore, the USAPDA found the applicant's sole diagnosis was major depressive disorder without psychotic features.  The USAPDA found the applicant physically unfit and directed a combined rating of 30 percent and placement on the TDRL with reexamination on 1 August 1998.  This finding also included the statement that the injury or disease was not as a direct result of armed conflict.

8.  On 10 October 1997, the applicant was retired and placed on the TDRL due to physical disability, temporary.  He was issued a DD Form 214 which shows his rank was sergeant/pay grade E-5 and that he served 10 years, 1 month, and 19 days of net active service.

9.  On 19 January 2001, the applicant was examined by a qualified examining official at Fort Gordon, Georgia.  The diagnoses were Axis 1 major depressive disorder, in full remission with his degree of impairment for social and instructional adaptability noted as none.  And the second diagnosis was Axis 1 post-traumatic stress disorder, mild as manifested by a history of emptiness, lack and range of social expression, sleep disturbance, and recurrent disturbing recollections.  The degree of impairment for social and industrial adaptability was noted as slight and his degree of impairment for further military duty was noted as marked.  The examiner noted that the applicant's depressive symptoms had abated.

10.  On 3 April 2001, the Chief of the Psychiatry and Neurology Clinic at Fort Gordon, Georgia, approved the examiner's recommendations and findings from 19 January 2001.  The examiner forwarded the applicant's case to the PEB for final adjudication.

11.  On 20 April 2001, an informal PEB found the applicant physically unfit under VASRD diagnostic code 9434, major depressive disorder, in full remission.  According to the PEB, the Soldier was unfit to reasonably perform the duties required by his previous grade and military occupational specialty and that his current condition at the time of this PEB considered him sufficiently stable for final adjudication.  The PEB findings also stated that the PEB can only adjudicate conditions for which the Soldier was placed on the TDRL.  The board recommended a combined rating of 0 percent and that the applicant be separated with severance pay, if otherwise qualified.

12.  On 27 April 2001, the applicant was mailed the PEB Proceedings.  Delivery receipt was confirmed and verified by FEDEX Tracking System Number 3245801623.  Records show the applicant failed to make an election within the prescribed time limitations.

13.  On 15 May 2001, the appropriate authority approved the PEB.

14.  U.S. Total Army Personnel Command, Alexandria, Virginia, Orders Number D113-1, dated 12 June 2001, removed the applicant from the TDRL and discharged him from the Army due to permanent physical disability.  The orders show that the applicant's percentage of disability was rated 0 percent.

15.  In a self-authored statement the applicant provided to counsel when he submitted his application to the Board, he stated, in effect, that he was an Army medic assigned to the 42nd Medical Company and that he served in Operation Desert Storm supporting the 2nd Armored Cavalry Regiment.  He states that during combat operations he treated both friendly and enemy Soldiers and that he saw a significant number of wounded and dead enemy Soldiers while in the performance of his medical duties.  He stated he is haunted by the faces of the dead Soldiers and civilians and that his life has never been the same since his experiences during Operation Desert Storm.

16.  He further stated, in effect, that in 1993 he married and that his wife was killed in a car accident shortly thereafter.  He states the Army transferred him to Pine Bluff Arsenal, Arkansas, near his family's home on a compassionate reassignment.  After 2 years, he was reassigned to Korea on permanent change of station orders.  In Korea, he stated the military environment reminded him of his experiences during Operation Desert Storm.  He stated he suffered from nightmares and thought of his war experiences constantly.  He was admitted to the Army hospital in Seoul, Korea, and then medically evacuated to WRAMC.

17.  In his statement he further wrote that at WRAMC he was admitted to the hospital in-patient psychiatry ward and medicated.  In February 1997, he was placed on the TDRL and applied to the VA for a disability claim.  He returned to Arkansas were he sought treatment at the local VA center.  He stated the VA rated him 50-percent disabled for post-traumatic stress disorder and 50-percent disabled for major depressive disorder.  He stated he kept his medical and PEB appointments and then was removed from the TDRL on 12 June 2001 and separated from the Army with a 0-percent disability rating.  He further stated that his illness has taken a toll on his personal and family relationships.  He states he is housebound and not able to function due to the post-traumatic stress disorder diagnosis and that the Army should medically retire him with full benefits.

18.  On 13 June 2008, the VA rendered a decision upgrading the applicant's disability rating from 50-percent to 100-percent disabling for post-traumatic stress disorder effective 19 July 2006.  The findings show that the applicant suffers severe social and occupational impairments rending him permanently and totally disabled.  This decision showed in part that he was rated 50-percent disabled for post-traumatic stress disorder on 11 October 1997 which was increased to 
100-percent disabled on 19 July 2006.

19.  Title 10, U.S. Code, section 1201, provides for the permanent retirement of Soldiers who incur a physical disability in the line of duty while serving on active duty over 30 days.  However, the disability must have been the proximate result of performing that active duty.  Section 1202 of this Code provides for the placement of Soldiers on the TDRL if they meet the provisions of section 1201, but the disability has not yet been determined to be of a permanent nature.  However, accepted medical principles must indicate that the disability will become permanent in nature.

20.  Department of Defense Directive (DODD) 1332.18, part 6, TDRL Management, states that service members shall be placed on the TDRL when they would be qualified for permanent disability retirement but for the fact that the member’s disability is not determined to be of a permanent nature and stable.

21.  DODD 1332.18, part 7, Final Disposition, paragraph E, Disposition of Unfit Members, provides for the permanent disability retirement of members who have at least 20 years of active service or whose total disability rating is at least 30 percent.

22.  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 VASARD, not all of the general policy provisions set forth in the VASARD 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.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), the regulation which governs PEBs, paragraph 7-11 states, in effect, that disabilities incurred while an individual is assigned to the TDRL are not grounds for medical retirement or discharge with severance pay.

24.  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 contends that he should be medically retired from the U.S. Army.

2.  A PEB on 19 February 1997 determined that the applicant had an unstable medical condition which could improve or increase in severity over a period of time.  The medical conditions were post-traumatic stress disorder and major depressive disorder.

3.  On 18 April 1997, the USAPDA modified the 19 February 1997 PEB findings to show he was medically unfit due to major depressive disorder and that the post-traumatic stress disorder symptoms were a part of the major depressive disorder symptoms, but did not alter the PEB's recommendation to place him on the TDRL, rated 30-percent disabled.  The applicant was therefore properly placed on the TDRL for subsequent reevaluation.

4.  When the applicant was reevaluated on 19 January 2001 while he was assigned to the TDRL, his medical disability, major depressive disorder, was determined to be stable.  Subsequently on 20 April 2001, the PEB determined that his medical condition had stabilized sufficiently to permanently rate him, and that his disability had improved to the degree where it was 0-percent disabling.  He was separated from the service by reason of physical disability with entitlement to disability severance pay in accordance with the governing regulations.

5.  The fact that the VA increased his disability rating for post-traumatic stress disorder from 50 percent to 100 percent 5 years after the applicant was discharged from the TDRL does not show that his rating by the Army was in error.  The VA has the responsibility to compensate a veteran for service-related conditions which arise or worsen with the passage of time after discharge.  Since the applicant was not rated for post-traumatic stress disorder when he was placed on the TDRL, he could not be rated for it when he was removed from the TDRL.  In addition, the applicant's post-traumatic stress disorder was determined to be in full remission at the time he was removed from the TDRL.

6.  The applicant has not submitted any evidence or argument which would show that an error or injustice occurred in his case.





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)                                         AR20090000647



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ABCMR Record of Proceedings (cont)                                         AR20090000647



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