IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090001879 


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 correction of his records to show he was medically retired instead of honorably discharged for disability with entitlement to severance pay.  

2.  The applicant states that he was discharged under the lack of respect for Post Traumatic Stress Disorder (PTSD) at the time and that he was medically separated instead of medically retired for not having enough time in service.  He adds that another Soldier after his time was medically retired and received better benefits.  He further adds that he feels this is an injustice.  

3.  The applicant provides a copy of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 7 December 2004; a copy of his DA Form 3947 (Medical Evaluation Board Proceedings), dated 22 October 2004; a copy of his PTSD Narrative Summary, dated 22 October 2004; a listing of medications, dated 24 July 2000; a copy of his DD Form 2808 (Report of Medical Examination), dated 5 October 2004; a copy of the commander’s performance statement, dated 26 October 2004; copies of his DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) for the periods 200407 to 200406 and 200207 to 200306; a copy of his Enlisted Record Brief (ERB), dated 17 October 2004; a copy of his September 2004 Leave and Earnings Statement (LES); copies of his U.S. Passport and his Social Security Card; a copy of the Department of Veterans Affairs (DVA) rating decision, dated 14 January 2009; and a voluminous copy of his DVA medical records, in support of his request. 


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 records show he initially enlisted in the Regular Army on 18 March 1997.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  He was promoted through the ranks to sergeant (SGT)/E-5 on 1 July 2002 and executed a 2-year reenlistment in the Regular Army on 23 October 2003.  

3.  The applicant’s records also show he served in Iraq from 19 March 2003 to 19 December 2003.  

4.  On 22 October 2004, the applicant was diagnosed with severe PTSD.  The narrative summary indicates that he had trouble concentrating since his return from Iraq and developed symptoms that included a response to intense fear and helplessness during and after traumatic events, recurrent and intrusive distressing recollections and dreams of traumatic events, difficulty falling or staying asleep, irritability, and outbursts of anger.  The chief of community mental heal services at Fort Bliss, TX, indicated that the applicant was unable to function in a military environment due to his psychiatric condition and recommended his referral to a physical evaluation board.

5.  On 22 October 2004, a medical evaluation board (MEB) convened at William Beaumont Army Medical Center, El Paso, TX, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medical condition of chronic, moderate to severe PTSD.  The MEB recommended that he be referred to a physical evaluation board (PEB).  The applicant agreed with the MEB’s findings and recommendation and indicated that he desired to continue on active duty. 

6.  On 7 December 2004, an informal PEB convened at Fort Lewis, WA, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to PTSD resulting from repeated combat exposure in Iraq.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 10 percent disability rating for code 9411.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  The applicant concurred with the PEB’s finding and recommendation and waived his right to a formal hearing on 23 December 2004.

7.  On 5 March 2005, the applicant was honorably discharged in accordance with paragraph 4-24B(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay.  The DD Form 214 he was issued shows she completed 7 years, 11 months, and 27 days of total creditable active service.

8.  On 14 January 2009, the DVA awarded the applicant a combined disability rating of 90 percent (70 percent for PTSD and 40 percent for residuals of low back strain).  

9.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

10.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Department of Defense Instruction (DODI) 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.  



11.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

12.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show he was medically retired instead of honorably discharged for disability with entitlement to severance pay.

2.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  

3.  The applicant served in Iraq from 19 March 2003 to 19 December 2003 and was diagnosed as having PTSD as a result of combat exposure.  He subsequently underwent an MEB which recommended he be given a PEB.  He agreed with this recommendation.  The PEB found his PTSD condition prevented him from performing his duties and determined that he was physically unfit for further military service.  The PEB recommended his separation with entitlement to severance pay.  The applicant concurred.

4.  The applicant now believes he should have received full retirement for his medical condition because another Soldier received a medical retirement and the DVA granted him a higher percentage.  However, an award of a different rating by another agency does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

5.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank, or rating.  

6.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  The applicant was properly rated at 10 percent for his PTSD.  There is no evidence to support a higher rating or retirement.

7.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief. 

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)                                         AR20090001879



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ABCMR Record of Proceedings (cont)                                         AR20090001879



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