IN THE CASE OF:	  

		BOARD DATE:	        20 October 2009

		DOCKET NUMBER:  AR20090003720 


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 Physical Evaluation Board (PEB) proceedings to show he was medically retired with a combined disability rating greater than 30 percent (%).

2.  The applicant also requests that his PEB rating for sleep apnea be changed from 0% to a rating of not less than 50%, and that his rating for post traumatic stress disorder (PTSD) be changed to a rating of 30%.

   a.  He states he believes a conspiracy existed in the command to expedite his PEB and provide him the lowest possible rating so that he would be medically discharged in lieu of medically retired.  He also states he was the victim of extreme abuse because he chose to challenge the illegal orders of his master sergeant.  He further states that the senior noncommissioned officers (NCOs) and officers of the command exerted inappropriate influence to prevent his medical retirement.  In addition, the Troop Command, Madigan Army Medical Center (AMC), exerted influence upon the PEB not only to expedite his PEB in less than a week, but also to grant him a minimal rating that would deny him a medical retirement and force him out of the Army.  He adds that his first sergeant told him that if he appealed the PEB he would not get anything. 

   b.  He states that a letter written by Sergeant First Class (SFC) Arthur B. R_____, Jr., indicates that Master Sergeant (MSG) T_____ stated, "I'm going to put [the applicant] out of the Army."  He also states, "a conspiracy was evident between MSG T____ and Command Sergeant Major (CSM) W_____ to drive him to request a chapter discharge" and "despite the physical abuse at the hands of MSG T______, he persevered in anticipation of rotating assignments and escaping to another duty station."  He further states that when he received orders, he was flagged and not allowed to change duty stations.  He adds that he fought this, it was ruled illegal by the Inspector General, and he was able to change duty stations to Madigan AMC, Tacoma, Washington.  He states the senior NCOs were upset about this, they contacted his new command, and also made disparaging remarks about him that were contrary to the NCO evaluation report that he received.

	c.  He states the PEB rated his sleep apnea with CPAP [Continuous Positive Airway Pressure] which limits deployability at 0%, whereas the Department of Veterans Affairs (VA) rated it at 50%.  He also states the psychiatrist refused to document the issues pertaining to PTSD that would have had a significant impact upon his PEB.  However, the diagnosis of his PTSD is found in the VA Award Letter.

   d.  He adds that he submitted an Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States for the diagnosis of Lumbar Degenerative Disc Disease and received a rating of 10%.
   
   e.  He concludes by asking the Board to grant him a medical retirement in the grade of E-6 with a percentage of 30% or greater.

3.  The applicant provides, in support of his application, copies of his DA Form 199 (Physical Evaluation Board Proceedings), dated 18 February 2003; DD Form 214 (Certificate of Release or Discharge from Active Duty); VA Decision of Claim for Service Connected Compensation, dated 7 May 2003; VA Decision on Notice of Disagreement, dated 8 January 2009; letters written by SFC Arthur B. R_____, Jr., U.S. Army (Retired), undated, and Lois M______, Ph.D., Licensed Psychologist, dated 6 November 2006; Advanced Medical Centers of Alaska, Psychological Evaluation, dated 18 September 2006; and Medical Records, dated 29 August 2005.

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 enlisted and entered active duty in the Regular Army on
29 October 1985.  Upon completion of training, he was awarded military occupational specialty 71G (Patient Administration Specialist).

3.  On 30 October 1998, the applicant was tried by a special court-martial.  He pled guilty to the charge and specification of unlawfully striking a child under the age of 16 on the legs with a mop handle, and also unlawfully pushing the child causing her to strike her head on the floor and/or counter.  The applicant was found guilty of the charge and specification.  He was sentenced to reduction to specialist (E-4), restriction to the limits of Fort Wainwright, Alaska, for 45 days, and to be reprimanded.  On 26 April 1999, the convening authority approved only so much of the sentence that provided for reduction to specialist (E-4) and 
45 days of restriction to the limits of Fort Wainwright, Alaska.  However, execution of the sentence was suspended for 30 days from the date of the action, at which time, unless the suspension was sooner vacated, the sentence would be remitted without further action.

4.  On 4 April 2002, the applicant received non-judicial punishment under the provisions of Article15, Uniform Code of Military Justice (UCMJ) for on or about
5 October 2001 falsely making in its entirety the signature of an NCO on a DA Form 705 (Army Physical Fitness Test Scorecard).  The punishment consisted of the filing of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) in the performance portion of the applicant's Official Military Personnel File.

5.  A DA Form 199 shows a PEB convened on 18 February 2003.  The PEB Proceedings, Disability Description section, describes the applicant's Medical Evaluation Board (MEB) diagnosis as "lumbar degenerative disc disease with a herniation of L4/5, L5/S1 which impacts the thecal sac.  Has occasional left leg pain; however, no true radicular signs.  Pain is primarily low back and paraspinal and limits vigorous activity as well as sitting/standing.  Rated for low back pain as lumbosacral strain with characteristic pain on motion" with a recommended disability rating of 10%.  This section also shows an MEB diagnosis of "obstructive sleep apnea, mild, prescribed CPAP which limits deployability" with a recommended disability rating of 0%.  Based on a review of the medical evidence of record the PEB found the applicant physically unfit, recommended a combined rating of 10% and separation with severance pay, if otherwise qualified.

6.  On 20 February 2003, the applicant indicated with his initials that he concurred with the PEB Findings and Recommendations and waived a formal hearing of his case.

7.  The applicant's DD Form 214 shows he entered active duty on 29 October 1985 and he was honorably discharged on 25 April 2003 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability with severance pay.  At the time he had completed 17 years, 5 months, and 27 days of net active service.

8.  In support of his application, the applicant provides the following documents.

   a.  A VA Decision of Claim for Service Connected Compensation, dated
7 May 2003, shows the VA determined the applicant's conditions were related to his military service and service connection was granted for:  obstructive sleep apnea requiring the use of daily CPAP with history of insomnia resolved - 50%; degenerative disc disease with herniated nucleus pulposis at L4-5, L5-S1, with episodic left radiculitis and muscular spasms - 40%; mood disorder, not otherwise specified - 30%; hypothyroidism - 10%; recurrent vascular headaches - 10%; left wrist tendinitis (claimed as bilateral carpal tunnel) - 10%; right wrist tendinitis (claimed as bilateral carpal tunnel) - 10%; hypertension - 10%; perennial allergic rhinitis with episodic sinusitis - 0%; ganglion cyst right index finger - 0%; and sinus tachycardia - 0%.  This document also shows the applicant's overall or combined rating was 90%, effective 26 April 2003.

   b.  A VA Decision on Notice of Disagreement, dated 8 January 2009, shows the VA determined the applicant's PTSD condition was related to his military service and service connection was granted at 30%, effective 29 October 2006.  This document also shows the applicant's overall or combined rating remained at 90%.

   c.  A five-page letter written by SFC Arthur B. R______, Jr., U.S. Army (Retired) that shows he first met and worked with the applicant during his assignment to the U.S. Army Medical Activity, Fort Wainwright, Alaska, from 1996 to 1999.  SFC R______ describes an adverse working environment that he and the applicant endured from senior NCOs.  He states the applicant was "intimidated, threatened, yelled at, and even spit on" and in his opinion the applicant was "abused, berated and belittled in the harshest manner imaginable."  SFC R______ concludes, "[t]he behavioral experience forced upon [the applicant] was not only egregious but illegal it went unabated because of a conspiracy of silence by [two senior NCOs]."

   d.  A two-page letter written by Lois M______, Ph.D., Licensed Psychologist, Psychological Interview and Evaluation, and Medical Records.  These documents provide an overview of the work the doctor had been doing with the applicant.  The psychologist states, "it became quite evident that [the applicant's] military history, particularly the abuse suffered at Fort Wainwright, led to significant symptoms of PTSD."  The doctor's impressions included: Axis I:  Major Depression, recurrent, moderate; PTSD; Bereavement, complicated; Axis II: Personality Disorder, NOS [not otherwise specified], with borderline and avoidant features; Axis III: Degenerative disk disease, lumbar; hypertension; migraines; tachycardia; Axis IV:  Conflicted marriage and home life, financial stress, work stress, poor esteem, significant history of childhood abuse; military trauma; and Axis V:  55-60.

9.  In connection with the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), Washington, DC.  The advisory opinion notes the applicant claims that a conspiracy in his command somehow influenced his MEB and PEB findings.

	a.  The advisory opinion states that on 12 February 2003 the applicant's MEB was completed with the following listed diagnoses not meeting medical retention standards:  Degenerative Disc Disease with herniation of L4/L5 and L5/S1 and moderate obstructive sleep apnea.  However, the applicant's conditions of hypertension, hypothyroidism, hearing loss, depression, and migraines all met medical retention standards.  The advisory opinion also shows that in both 2001 and 2003 psychiatric reviews determined that the applicant's depressive symptoms did not have a significant affect upon his ability to perform his assigned duties. His DA Form 3349 (Physical Profile) listed a back condition and sleep apnea as the only limiting conditions.  The commander's memorandum supported that the applicant could not perform his assigned duties because of his back pain.  There were no other conditions noted by the command that affected the applicant's performance of duties.  In addition, on 14 February 2003, the applicant concurred with all of the information that was included in his MEB.

   b.  The advisory opinion states that on 18 February 2003 an informal PEB found the applicant unfit due to his back pain and sleep apnea, and recommended separation with severance pay.  His back pain was rated in accordance with the VASRD [VA Schedule for Rating Disabilities] criteria at 10%.  It was rated analogous to low back strain as there was no clear medical evidence to support a herniation or an intervertebral disc syndrome.  Based on the VASRD criteria, a 10% rating for characteristic pain on motion was provided.   Sleep apnea was rated at 0%, as the applicant had this condition for over ten years with no documented adverse affects regarding his ability to perform his duties.  He was only found unfit for this condition because the use of the CPAP machine might hinder deployment.  The PEB found that all other conditions did not impact on the applicant's ability to perform in any significant manner and they were not found to be unfitting.
   
   c.  The advisory opinion states that the applicant's claims of harsh treatment by his NCO supervisor may be accurate, but there appears to be no relationship between those claims and his MEB/PEB processing and findings.  Additionally, there is no evidence of any "conspiracy" regarding the applicant's disability findings or processing, his back and sleep apnea conditions were properly rated, and his depression (later termed PTSD by others) was not unfitting at the time of his separation based on clear evidence in the case file.

   d.  The advisory opinion concludes that the PEB findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation in effect at the time of the applicant's separation.  The USAPDA advisory opinion recommends no change to the applicant's military records.

10.  On 19 August 2009, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.  On 28 August 2009, the applicant provided his rebuttal to the USAPDA advisory opinion.

   a.  The applicant states he has applied to the PDBR for review of the disability rating for which he was found unfit (i.e., lumbar degenerative disc disease with a herniation of L4/5, L5/S1, which impacts the thecal sac, with leg pain at a rating of 10%) and he reserves the right to have that authority determine that review.

	b.  He states the diagnosis of sleep apnea was found as unfitting at a time when it was well known that the United States was going to war.  He adds he was assigned as a PROFIS (professional filler system) Soldier assigned to a Combat Support Hospital and it was not feasible for him to deploy with a CPAP machine to a battle zone.  In fact, he states the use of the CPAP would have been impossible in a war zone and his untreated sleep apnea, hypertension, and sinus tachycardia in a 140 degree temperature environment, such as Iraq, could have been life-threatening, if he had deployed.

	c.  He states his medical records indicate he had uvulopalatopharyngoplasty surgery to correct the condition in 1992; however, no subsequent sleep study or medical follow-up was made.  He adds that the diagnosis of sleep apnea in 2003 clearly indicates he lived with the condition untreated for 10 years due to the failure of the medical authority to follow-up on the earlier surgical intervention.

	d.  He states he waived his rights to a formal PEB hearing because he was told by his first sergeant that if he appealed the decision, the chain of command would ensure he received nothing "and the 10% rating was a gift."  He adds that he believed that the chain of command could influence the outcome of a PEB because he "witnessed firsthand the power these people wielded."

	e.  He concludes by requesting the rating for obstructive sleep apnea be corrected to the same rating the VA subsequently rated him with (i.e., 50%).

11.  Chapter 61, Title 10, U.S. Code, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The USAPDA, under the operational control of the Commander, U.S. Army Human Resources Command, Alexandria, Virginia, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, Title 10, U.S. Code, and in accordance with Department of Defense Directive 1332.18
(Separation and Retirement for Physical Disability) and Army Regulation 635-40.

12.  Army Regulation 635-40, in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier 
was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 (Policies), paragraph 3-1 (Standards of unfitness because of physical disability), in pertinent part, provides that 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 their office, grade, rank, or rating.

13.  Paragraph 3-1 of Army Regulation 635-40 also states that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness.

14.  Paragraph 4-12 (Informal board) of Army Regulation 635-40 provides, in pertinent part, that each case is first considered by an informal PEB.  Informal procedures reduce the overall time required to process a case through the disability evaluation system.  An informal board must ensure that each case 


considered is complete and correct.  All evidence in the case file must be closely examined and additional evidence obtained, if required.  In addition, in all informal cases, the PEB Liaison Officer (PEBLO) of the Medical Treatment Facility having control of the Soldier will be the counselor for the Soldier.  As such, the PEBLO is primarily concerned with the Soldier's interests.  The Soldier will be made fully aware of the election options available to him, the processing procedures, and benefits to which he will be entitled if separated or retired for physical disability.

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30%.

16.  Title 38, U.S. Code, sections 1110 and 1131, 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 civilian 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.  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 VA may rate any service connected impairment, including those that are detected after discharge in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his PEB proceedings should be corrected to show he was medically retired based on sleep apnea rated at not less than 50% and PTSD rated at 30%, for a combined disability rating greater than 30%.



2.  Records show, on 18 February 2003, an informal PEB found the applicant unfit for his back pain and sleep apnea, his back pain was rated at 10% in accordance with the VASRD criteria, and his sleep apnea was rated at 0% as he had this condition for over 10 years with no documented adverse affects regarding his ability to perform his duties.

3.  The applicant's contentions that it was not feasible (and perhaps impossible) for him to deploy with a CPAP machine to a combat zone, such as Iraq, and that his untreated sleep apnea, hypertension, and sinus tachycardia in such an area could have been life-threatening were carefully considered.  It is noted that the PEB found the applicant unfit for sleep apnea because the use of the CPAP machine might hinder deployment [emphasis added].  However, the regulation states that world-wide deployability will not serve as the sole basis for a finding of unfitness.  In addition, the PEB found that all other conditions did not impact on the applicant's ability to perform in any significant manner and they were not found to be unfitting.  Thus, the applicant provides insufficient evidence to support his contentions.

4.  The applicant's contentions of harsh treatment by NCOs and fear that his command “would ensure he received nothing” were carefully considered.  

	a.  The applicant's claim about the harsh treatment that he received from NCOs is not disputed.  It is noted that the letter provided by SFC Arthur B. R_____, Jr., U.S. Army (Retired), discusses the period from 1996 to 1999, which was more than 3 years before the applicant's PEB.  As such, there does not appear to be any relationship between these claims and the PEB findings and recommendations in 2003.

   b.  At the time of the applicant's informal PEB, he was serving as a Patient Administration NCO with more than 17 years of service.  Thus, notwithstanding the applicant's fear about any perceived influence his command might exert on the PEB's findings and recommendations, it is reasonable to conclude the applicant was aware that the PEBLO was primarily concerned with his interests. Thus, in view of the foregoing, the applicant provides insufficient evidence in support of his claim of improper influence by his command in his PEB proceedings.

5.  Records show that the PEB recommended a combined rating of 10% and that the applicant be separated with severance pay; the applicant concurred with the 


findings on 20 February 2003; and he waived his right to a formal PEB hearing.  Accordingly, the applicant was honorably discharged on 25 April 2003 by reason of disability with severance pay.

6.  There is no evidence to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Therefore, the applicant is not entitled to correction of his records to show an adjustment to his disability rating.

7.  The statutory and regulatory guidance provides that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a higher disability rating than that which he received from the U.S. Army, is a prerogative exercised within the policies of that agency.

8.  The applicant is not entitled to correction of his PEB proceedings to show he was found unfit for any of these conditions or increased permanent disability ratings.  As a result, the applicant's PEB proceedings are presumed proper and equitable.

9.  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)                                         AR20090003720



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ABCMR Record of Proceedings (cont)                                         AR20090003720



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