IN THE CASE OF:	  

		BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090001704 


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  The applicant requests, in effect, that his medical separation be withdrawn and that he be allowed to appeal the rating decision by his physical evaluation board (PEB).

2.  The applicant essentially states that his post-traumatic stress disorder (PTSD) rating from his PEB was only 10 percent and his hearing loss rating at only 10 percent, but that his disability ratings for his PTSD and hearing loss from the Department of Veterans Affairs (DVA) are 30 percent and 10 percent, respectively.

3.  The applicant provides an undated self-authored statement; his DD Form 214 (Certificate of Release or Discharge from Active Duty); the front page of his DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), dated 27 April 2005; the first two pages of a letter from the DVA, dated 27 August 2005; the front pages of letters from the DVA, dated 24 March 2006 and 6 February 2007; a printout from the Louis A. Johnson Veterans Affairs Medical Center, dated 10 December 2008; an undated medication profile; a DD Form 2215E (Reference Audiogram), dated 25 January 2005; an Emergency Care and Treatment form and Triage Data Collection form, both dated 8 December 2004; a DA Form 2697 (Report of Medical Assessment), dated 15 July 2004; a four-page MEBD narrative summary, dated 27 April 2005; a DA Form 3349 (Physical Profile), dated 5 January 2005; the front pages of two DA Forms 638 (Recommendation for Award), dated 7 October 2003 and 24 September 2004; and a narrative citation for award of the Bronze Star Medal with "V" Device in support of this 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 military records show that he enlisted in the Regular Army on 17 October 2001.  He completed initial entry training and was awarded military occupational specialty 19D (Cavalry Scout).  He was then assigned to Fort Polk, Louisiana, for his initial permanent duty assignment.  He began serving a tour in Kuwait and Iraq on 15 April 2003.  He returned to the continental United States on 14 July 2004.

3.  On 5 January 2005, the applicant was issued a physical profile for PTSD and generalized anxiety disorder.

4.  On 25 January 2005, a physical examination was conducted on the applicant, and although hearing loss was noted during this physical, he was not issued a physical profile for hearing loss.

5.  On 1 February 2005, the applicant's commanding officer completed a Commander's Letter of Evaluation in which he essentially stated that while the applicant's duty performance was excellent, his physical impairments prevented him from fulfilling the requirements of a Cavalry Scout.  He also recommended that the applicant be processed and separated through the U.S. Army disability system.

6.  On 27 April 2005, an MEBD diagnosed the applicant with chronic PTSD, but did not make a determination on his hearing loss.  The MEBD recommended that the applicant be referred to a PEB.  The applicant agreed with the MEBD's findings and recommendations on 16 May 2005.

7.  On 18 May 2005, an informal PEB found the applicant physically unfit due to PTSD with a 10-percent disability rating, and recommended that he be separated with severance pay if otherwise qualified.  The applicant concurred with the PEB's findings and recommendations on 23 May 2005 and waived a formal hearing of his case.  The PEB proceedings also show that the PEB Liaison Officer informed the applicant of the findings and recommendations of the PEB and explained to him the result of the findings and recommendations, and also his legal rights pertaining thereto.  The PEB Liaison Officer authenticated the PEB proceedings with her signature attesting to the fact that the applicant made the election to concur with the findings and recommendations of the informal PEB and waive a formal hearing of his case.

8.  On 18 August 2005, the applicant was honorably discharged from the Regular Army due to physical disability and was paid $14,296.80 in disability severance pay.

9.  The applicant provided correspondence from the DVA which essentially shows that he was granted service connection for PTSD, and although the applicant indicated that the DVA rated his PTSD at 30 percent and his hearing loss at 10 percent, he did not provide any correspondence to confirm this.

10.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) of Army Regulation 40-501 (Standards of Medical Fitness) essentially provides, in pertinent part, that Soldiers with conditions listed in this chapter will be referred for disability processing.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that block 13 (Election of Soldier) of the DA Form 199 (PEB Proceedings) lists the election options available to the Soldier for informal determinations.  These include the following:

	a.  concurrence with the findings and recommendations and waiver of a formal hearing;

	b.  nonconcurrence with the findings and recommendations; submission of a rebuttal explaining the Soldier's reasons for nonconcurrence; and waiver of a formal hearing;

	c.  demand for a formal hearing with or without personal appearance; and

	d.  choice of counsel if a hearing is demanded.

12.  Army Regulation 635-40 also provides that if a Soldier accepts the findings and recommendations of the informal PEB, the recorder will assemble the records as required and they will be approved for the Secretary of the Army and forwarded to the U.S. Army Human Resources Command for final disposition.
13.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 DVA, 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 civilian employability.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

14.  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.  This 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 his medical separation should be withdrawn and that he should be allowed to appeal the rating decision by his PEB.

2.  When the applicant accepted the findings and recommendations of his informal PEB, that effectively ended his disability processing.  The fact that the applicant was apparently assigned a higher disability rating by the DVA was noted.  However, this fact does not establish an error or injustice in the disability rating rendered by the Army.  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 DVA, 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 civilian employability.
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 this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X__  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during Operation Iraqi Freedom.  The applicant and all Americans should be justifiably proud of his honorable service in arms.



      _________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)                                         AR20090001704



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ABCMR Record of Proceedings (cont)                                         AR20090001704



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