IN THE CASE OF:	  

		BOARD DATE:	         22 September 2009

		DOCKET NUMBER:  AR20090005084 


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, amendment to his physical evaluation board (PEB) unfitting diagnosis from depression to post-traumatic stress disorder (PTSD).

2.  The applicant states, in effect, that for years he was diagnosed with PTSD and then was retired after being diagnosed with depression.

3.  In support of his application, the application provides copies of his DA Form 3349 (Physical Profile), his Medical Evaluation Board (MEBD) Narrative Summary with several Standard Forms 600 (Health Record – Chronological Record of Medical Care) and letters of support from his family in support of his medical retirement, his MEBD Consultation, his PEB proceedings, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a letter from the U.S. Army Physical Disability Agency (USAPDA) and corrected PEB proceedings.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Army Delayed Entry Program on 20 November 2001.  He enlisted in the Regular Army on 15 January 2002 and reenlisted on 7 November 2005 for 6 years.

2.  The applicant submits a copy of his DA Form 3349, dated 14 February 2007, that shows he was given a temporary physical profile for PTSD and alcohol dependence.  It states that he should have no access to weapons or ammunition, should not deploy, should be removed from recruiting duty, and reassigned to a line unit.  The examining physician continued that the applicant required definitive medical care and did not require a medical board.

3.  The applicant also submits a copy of his MEBD Consultation, dated 8 May 2008, wherein he was diagnosed with major depressive disorder and PTSD.  It was determined the applicant's medical conditions of major depressive disorder and common migraine headaches had a serious impact on his duty and failed to meet Army retention standards.  It was also determined that his condition of PTSD met Army retention standards.  The evaluating psychiatrist, an Army medical doctor, recommended the applicant be referred to a PEB and that he continue to follow-up with his psychiatric provider and established outpatient psychiatric treatment plan.

4.  The applicant further submits a copy of his MEBD Narrative Summary, dated 16 July 2008, that shows his chief complaints were depression with PTSD and migraine headaches.  On 23 July 2008, the evaluating psychiatrist, an Army medical doctor, referred the applicant to a PEB for further adjudication.  He also submits copies of several Standard Forms 600 and letters of support from his family submitted on behalf of him receiving maximum benefits for medical retirement.

5.  In August 2008, an MEBD found that the applicant had both PTSD and depression and that the PTSD had improved, but the depression had not.  On 11 August 2008, the applicant concurred with the MEBD's findings for referral to a PEB.

6.  On 5 September 2008, an informal PEB convened and considered the applicant's disabilities of major depressive disorder and common migraine headaches.  The PEB reviewed all available medical records and determined that the applicant's major depressive disorder and common migraine headaches rendered him unfit to perform the duties required of a Soldier of his grade and specialty.  The PEB found the applicant unfit for depression, rated at 30 percent, and common migraine headaches, rated at zero percent.  The PEB also determined that a permanent evaluation was not yet possible and placed him on the Temporary Disability Retired List (TDRL).

7.  On 22 September 2008, the applicant concurred with the PEB and waived his right to a formal hearing.




8.  On 14 October 2008, the USAPDA advised the applicant that item 10a on his PEB proceedings had been corrected to show his Injury or disease was received in the line of duty as a direct result of an armed conflict or caused by an instrumentality of war and that it was incurred in the line of duty during a period of war as defined by law.  The USAPDA also corrected item 10c of those same proceeding to show the applicant’s disability did result from a combat related injury as defined in Title 26 U.S. Code, section 104.  There was, however, no change to his disposition.

9.  The applicant was honorably separated in pay grade E-5 on 27 January 2009 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), for physical disability and placement on the TDRL.  He was credited with 7 years of net active service.

10.  In an advisory opinion, dated 17 July 2009, the Agency Legal Advisor, USAPDA, Washington, DC, stated that the applicant's MEBD indicated that he had both PTSD and depression.  However, the PTSD had improved, while his depression had not.  The applicant's psychiatrist found that his depression remained severe and the PTSD had resolved sufficiently to meet medical retention standards.  On 11 August 2008, the applicant concurred with the MEBD's findings.  On 5 September 2008, an informal PEB found the applicant unfit for depression, ratable at 30 percent and non-prostrating headaches at zero percent.  His PTSD was not found to be unfitting.  Because his condition was not stable for rating purposes, he was placed on the TDRL.  Individuals placed on the TDRL are compensated at a minimum of 50 percent (Title 10, U.S. Code, sections 1202 and 1401).  On 22 September 2008, the applicant concurred in the findings and waived his right to a formal hearing.  On 14 October 2008, the PEB's findings were administratively corrected (copy attached) to reflect that the applicant's headaches were the direct result of armed conflict.

11.  The USAPDA official also stated that at the time of the applicant's MEBD/
PEB, his PTSD had resolved to the point where it then met medical retention standards.  That did not mean that the applicant did not have PTSD or that he did not have an unfitting mental condition as his depression was still present and properly ratable.  All mental disorders are ratable under the same criteria regardless of what they are called under the Veterans Affairs Schedule for Rating Disabilities (VASRD), section 4.130.  The applicant's rating would still be 50 percent with placement on TDRL whether it was PTSD, depression, or both (even if both were found unfitting, the rating would still be limited to the correct 50 percent as they could not combine unfitting compensation for symptoms that overlap – VASRD section 4.14).  Since the MEBD clearly found that the applicant's PTSD had generally resolved, it was appropriate for the PEB not to have found that condition unfitting.  Only unfitting conditions are compensable under the provisions of Department of Defense Instruction 1332.38, E2.1.7.

12.  The USAPDA official further stated that the applicant's case was properly processed and the applicant had not provided any evidence of error in the PEB's findings.  The PEB's findings are support by a preponderance of the evidence and are not arbitrary or capricious, and are not in violation of any statute, directive, or regulation.  The applicant concurred in all aspects of his disability processing and was found competent to make all decisions.  The USAPDA official recommended no change to the applicant's military records.

13.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 29 June 2009.  He did not respond.

14.  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 Army Regulation 40-501, chapter 3.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15.  PEBs 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 the eligibility of a Soldier to be separated or retired because of physical disability.

16.  Army Regulation 40-501, chapter 3, provides that an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.




DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that in July 2008 the applicant was directed to an MEBD as a result of chief complaints of depression with PTSD symptoms and migraine headaches.  An evaluating psychiatrist determined that the applicant's depression remained severe and the PTSD had resolved sufficiently to meet medical retention standards.  The MEBD determined that he failed to meet retention standards of Army Regulation 40-501 for depression and migraine headaches and referred him to a PEB for further evaluation.  The applicant concurred.  On 5 September 2008, a PEB found the applicant unfit for depression, rated at 30 percent, and migraine headaches, rated at zero percent.  The PEB determined that since the applicant's conditions were not stable he would be placed on the TDRL.  He concurred with the findings of the PEB on 22 September 2008 and waived his right to a formal hearing.  On 14 October 2008, the applicant's PEB findings were administratively corrected to reflect his headaches were the direct result of armed conflict.  The applicant was separated from active duty on 27 January 2009 and placed on the TDRL.

2.  In the course of the MEBD/PEB proceedings, the applicant had the opportunity to non-concur with any of the determinations reached by the boards, to include which unfitting mental condition he did or did not have.  He knew, or should have known, that any disagreement he had, he could make and his disagreements would be considered.  It appears that during the PEB process, he concurred and the process was carried through to its conclusion.  He was subsequently separated from active duty due to a physical disability of depression that rendered him functionally unfit to perform the duties of his grade and primary specialty.  The USAPDA opined that at the time of the applicant's MEBD/PEB proceedings his condition of PTSD had generally resolved to the point where it then met medical retention standards and it was not found to be unfitting.

3.  There is no evidence of error or injustice in the applicant's physical evaluation process for his conditions or error in the PEB's findings.  Those findings were supported by the evidence and the applicant concurred.  There is also no evidence the applicant was precluded from offering any relevant material evidence in his case and he provides insufficient evidence to show his condition of PTSD was not properly considered.  The applicant’s contentions and the documents that he submitted do not demonstrate error or injustice in his MEBD or PEB processing nor error or injustice in the disposition of his case.

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)                                         AR20090005084



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ABCMR Record of Proceedings (cont)                                         AR20090005084



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