IN THE CASE OF:	  

		BOARD DATE:	  3 June 2010

		DOCKET NUMBER:  AR20090013891 


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 processed under the Physical Disability Evaluation System (PDES) for retirement by reason of physical disability.

2.  The applicant states that all of his medical conditions are service connected and he should have been processed through the PDES instead of being discharged for medical reasons.  He goes on to state that he believes that had he been processed through the PDES he would have been given a medical retirement instead of being medically chaptered out because he was given a 90% disability rating by the Department of Veterans Affairs (VA) based on his service connected medical conditions.

3.  The applicant provides a copy of the response he received from the Physical Disability Board of Review, a copy of his VA Rating Decision, and copies of his medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 6 October 1974 and enlisted in the Regular Army (RA) on 10 April 2002 for a period of 3 years and training as a Multiple Launch Rocket System Fire Direction Specialist.  

2.  He successfully completed his training and served a tour in Korea before being returned to Fort Sill, Oklahoma.  He deployed to Iraq on 15 January 2005 and he reenlisted in the RA on 31 March 2005 for a period of 6 years and a Selective Reenlistment Bonus.  He was promoted to the pay grade of E-5 on       1 December 2005 and departed Iraq on 15 January 2006.

3.  A Report of Behavioral Health Evaluation, Reynolds Army Community Hospital, Fort Sill, OK, dated 13 December 2006, shows a psychologist at the community health service opined:

* the applicant had no psychiatric disease or defect that warranted disposition through medical channels
* the applicant had the mental capacity to understand and participate in chapter proceedings
* the applicant was mentally responsible
* he met the health retention requirements of Chapter 3, Army Regulation (AR) 40-501
* he had a psychiatric condition that requires treatment 
* he was not motivated to continue in military service 
* he met the psychiatric criteria for administrative separation under Chapter 5-17, AR 635-200.

4.  The examining psychologist indicated the applicant had been treated more than 6 months for a mood disorder and sleep disturbance and he continued to experience sleep disturbance even after he had gone through sleep study and the use of Continuous Positive Airway Pressure (CPAP) equipment.  His behavior had been negatively impacted by uncharacteristic anger which interfered with logical reasoning and judgment.  Continued fatigue negatively impacted his work effectiveness.  The applicant had deteriorated both medically and psychologically (even after having had surgical repair of the knee, pain continued).  The chance that further treatment would assist him to regain previous levels of functioning was low.

5.  The applicant underwent a medical/physical examination on 1 February 2007 and he was deemed qualified for service.

6.  He underwent a Mental Status Evaluation on 1 March 2007 and was psychiatrically cleared for any administrative action deemed appropriate by the command.  He was diagnosed as having:

* Axis I: Post-Traumatic Stress Disorder (PTSD), Chronic
* Axis II: none
* Axis III: hypertensive, high cholesterol, damaged knees, sleep apnea
* Axis IV: occupational, Axis I and Axis III
* Axis V: 62

7.  On 2 April 2007, the applicant’s commander notified him that he was initiating action to separate him because of other designated physical or mental conditions under the provisions of AR 635-200, paragraph 5-17, based on the diagnosis contained in the Behavioral Health Evaluation.  The applicant elected to seek counsel and declined the opportunity to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge on 25 April 2007 and directed that he be furnished an Honorable Discharge Certificate.

9.  On 3 May 2007, the applicant was honorably discharged under the provisions of AR 635-200, paragraph 5-17 for a condition, not a disability.  He had served
5 years and 24 days of total active service.

10.  A review of the applicant's Noncommissioned Officer Evaluation Reports (NCOERS) show he essentially received maximum reports and his last NCOER ending on 1 May 2007, as successful in performing his duties, and  recommended that he be promoted ahead of his peers.

11.  On 28 August 2007, the VA granted the applicant a combined disability rating of 90% for the following medical descriptions effective 4 May 2007:

* Sleep apnea – 50%
* PTSD also claimed as adjustment disorder, disturbance of emotion and conduct – 30%
* Chronic right shoulder strain claimed as right shoulder degenerative partial tear – 10%
* Chronic left knee strain claimed as left knee patellar tendonitis – 10%
* Chronic right knee strain and status post right knee surgery for a bone cyst with residuals – 10%
* Chronic left ankle sprain – 10%
* Chronic right ankle sprain – 10%
* Tinnitus – 10%
* Hypertension – 10%
* Gastroesophageal reflux 10%

12.  A review of the available records failed to show evidence to indicate the applicant was deemed unfit to perform his military duties.  There is also no indication that a physician ever made a determination or a recommendation that he should be referred to a medical evaluation board (MEB) or a physical evaluation board (PEB). 


13.  Army Regulation 635-200 governs the separation of enlisted personnel.  Paragraph 5-17 states a commander may approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability (under the provisions of Army Regulation 635-40) that potentially interfere with assignment to or performance of duty.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTFs) who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. 

15.  Army Regulation 635-40 states that MEBs 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 qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.  Additionally, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.

16.  Army Regulation 635-40 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  

17.  There is a difference between 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.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has failed to provide sufficient evidence which shows he had a medical condition which limited his duty performance to the extent that he warranted evaluation for physical disability under the PDES.  His last NCOER shows he could perform his duties successfully.  There simply is no evidence to show that he was unfit to perform his duties.

2.  As previously mentioned, an award of a VA Rating Decision does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined the individual suffers from an impairment that disqualifies him 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 different positions. 

3.  The available evidence suggests the applicant was properly evaluated in accordance with the applicable laws and regulations in effect at the time with no indication of any violations of any of the applicant's rights.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X____  DENY APPLICATION
 
BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.





      _______ _   __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)                                         AR20090013891



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013891



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1