IN THE CASE OF:	

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090010460 


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 that his DD Form 214, dated 11 April 2005, be corrected to show he was medically retired in lieu of separated due to physical disability with severance pay.

2.  The applicant states that based on changes to U.S. Code, Title 10, Chapter 61, Subtitle A, Part II during the past 4 years, he is requesting that his disability discharge with severance pay be changed to a medical retirement.

3.  The applicant provides the following documents in support of his application: 

* Separation Orders 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DA Form 5893-R (PEBLO Counseling Checklist/Statement)
* DA Form 5892-R (PEBLO Estimated Disability Compensation Worksheet)
* US Army Physical Disability Agency (USAPDA) Memorandum dated 
19 January 2005
* PEB Letter with Formal Election dated 18 October 2004
* USAPDA Memorandum dated 17 August 2004
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* DA Form 3349 (Physical Profile)
* Psychiatric MEB
* DA Forms 2166-8 (Noncommissioned Officer Evaluation Report)
* Enlisted Record Brief (ERB)
* Department of Veterans Affairs (VA) Ratings
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 record shows he enlisted in the Regular Army (RA) on 21 July 1992.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on            1 March 2003.

3.  On 16 July 2004, an MEB referred the applicant's case to a PEB based on the following diagnosed medical conditions incurred while the applicant was entitled to base pay: Bipolar I disorder, most recent episode manic, severe without psychotic features; and Asthma.  It also determined the applicant suffered from the diagnosed condition "Scoliosis, well controlled without medications, which existed prior to service (EPTS)."  

4.  On 17 August 2004, an informal PEB considered the applicant's case and determined he was physically unfit under VA Schedule for Rating Disabilities (VASRD) code 9432 based on Bipolar I Disorder.  It further concluded the MEB's diagnoses 2-3 were medically acceptable and not unfitting or ratable.  The PEB recommended the applicant be separated with severance pay with a 10 percent (%) disability rating.  

5.  The applicant non-concurred with the PEB's findings and recommendations and demanded a formal hearing with a personal appearance.  

6.  On 18 October 2004, a formal PEB convened to reconsider the applicant's case.  It concurred with the findings and recommendations of the informal PEB and found the applicant unfit for further service based on his Bipolar I Disorder under VASRD code 9432 and recommended he be separated with severance pay with a 10% disability rating.  The applicant non-concurred with the formal PEB findings and recommendation.  The applicant did not submit a statement of rebuttal.

7.  In a response to the applicant's request for continuation on active duty (COAD), the USAPDA informed the applicant he had provided no new medical evidence supporting a change to his PEB findings or to his denial for COAD, and ultimately determined his case was complete and final.

8.  On 11 April 2005, the applicant was honorably discharged under the provisions of paragraph 4-24b (3), Army Regulation 635-40, by reason of disability, with severance pay.  At the time he had completed 12 years, 8 months, and 21 days of active military service.  His DD Form 214 shows he received $69,328.80 in disability severance pay in conjunction with his discharge.  

9.  The applicant provides a DA Form 3349, dated 21 July 2004.  It shows he was found medically unfit as a result of Bipolar Disorder Type I, and he did not meet retention standards in accordance with chapter 3, Army Regulation 40-501. 

10.  The applicant also provides a VA Rating decision, dated 28 June 2005.  It shows he was granted service connection with a 10% disability rating for Asthma and Bipolar Disorder with a combined rating of 20%.  It also shows he was denied service connection for scoliosis.  He also provides a second VA Rating decision, dated 27 May 2009, which shows he was diagnosed with delayed onset of post traumatic stress disorder (PTSD) and was granted service connection for both PTSD and Bipolar Disorder under VASRD code 9432 with a 10% disability rating.

11.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  Paragraph 3-1 of the PDES regulation contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of 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.

12.  Chapter 4 of the same regulation states that the PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability 

of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

13.  The VASRD identifies code 9432 as "Bipolar I Disorder."  The following evaluations support the disability rating indicated:

	a.  a 10% rating is granted whenever there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication.

   b.  a 30% rating is granted if there is occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, and recent events).

14.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.   The applicant's contention that his record should be corrected to show he was medically retired based on changes in the law has been carefully considered.  However, the evidence is not sufficient to support this claim. 


2.  The evidence of record confirms the applicant was properly processed through the PDES in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the PDES process.  

3.  The PEB determined the applicant was unfit solely due to a diagnosed condition of Bipolar I Disorder and assigned a disability rating of 10% under VASRD code 9432.  The VA using its own regulations and policy also initially rated the applicant's Bipolar Disorder at 10% under VASRD code 9432.  As a result, this clearly was the proper rating assignment based on this one specific unfitting condition.  

4.  The applicant's record fails to show either of the other two diagnosed conditions, Asthma and Scoliosis, were unfitting for further service and as a result were properly not rated by the PEB.  Further, there is no indication the applicant was suffering from an unfitting PTSD condition at the time of his discharge.  As a result, absent any evidence of error or injustice in the PDES process, the subsequent PTSD diagnosis by the VA does not support a change to the PEB disability rating the applicant received, nor does it support medical retirement in lieu of separation with severance pay.  

5.  The applicant is advised that the VA is the appropriate agency to seek care and compensation for service connected conditions that were not unfitting for further military service at the time of processing through the Army's PDES, and he should seek relief in these areas from that agency.  

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)                                         AR20090010460



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ABCMR Record of Proceedings (cont)                                         AR20090010460



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