IN THE CASE OF:	

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090011680 


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 discharge be voided and that he be retired by reason of physical disability.

2.  The applicant states that he was treated for Post-Traumatic Stress Disorder (PTSD) symptoms in Iraq and after his return to the States, the Department of Veterans Affairs (VA) found him disabled for mental health and his knees the day after his release.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of his VA Rating Decision.

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 in the Regular Army (RA) on 31 July 2003 for a period of 4 years, training as an indirect fire infantryman, and a cash enlistment bonus.  He completed his one-station unit training (OSUT) at Fort Benning, GA and was transferred to Fort Lewis, WA on 2 December 2003 for assignment to a cavalry troop in a Stryker brigade.

3.  On 4 January 2004, the applicant was involved in a motor vehicle accident that injured his left knee and he was placed on crutches.

4.  He deployed to Iraq in support of Operations Enduring/Iraqi Freedom from 23 February 2004 to 24 October 2004 and was then returned to his unit at Fort Lewis.

5.  On 15 September 2005, an informal Medical Evaluation Board (MEB) was conducted at Madigan Army Medical Center (MAMC) in Tacoma, WA that evaluated the applicant for left knee retropatellar pain syndrome.  The MEB recommended that he be referred to a Physical Evaluation Board (PEB).  The applicant indicated that he did not desire to continue on active duty and that he agreed with the findings and recommendations of the MEB.  The findings and recommendations of the MEB were approved on 20 September 2005.

6.  On 28 September 2005, a PEB was convened at Fort Lewis to evaluate the applicant for retropatellar pain syndrome left knee.  The PEB found that the applicant was physically unfit and recommended that he be discharged with severance pay with a 0 percent (%) disability rating.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  The PEB was approved on 6 October 2005.

7.  On 4 January 2006, he was honorably discharged in the pay grade of E-4 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(3), due to disability with severance pay.  He had served 2 years, 5 months, and 4 days of total active service and he received $6,782.40 in severance pay.

8.  On 28 January 2006, the VA granted him a 30% disability rating for panic disorder, effective 5 January 2006, and a 20% disability rating for his left knee.

9.  Army Regulation 635-40 provides 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 member may reasonably be expected to perform because of his or her office, rank, grade or rating.  That regulation also provides the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings.

10.  Title 38, U.S. Code, sections 310 and 331, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

11.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

12.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been retired by reason of physical disability because the VA gave him a 50% disability rating of which 30% was for PTSD has been noted.  However, he has failed to show through the evidence submitted with his application and the evidence of record sufficient evidence to establish that this condition rendered him unfit to perform his duties. 

2.  Additionally, he did not address the issue of PTSD to either the MEB or the PEB and it was not considered by those boards as an unfitting condition.  Department of the Army disability decisions are based upon observations and 
determinations existing at the time of the PEB hearing.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show that the evaluation and the rating rendered by the PEB was incorrect or that he should have received a higher disability rating at the time of his separation.

4.  The fact that the VA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department.

5.  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)                                         AR20090011680



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ABCMR Record of Proceedings (cont)                                         AR20090011680



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