IN THE CASE OF:	  

		BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090016071 


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 record be corrected to show he was placed on the Temporary Disability Retired List (TDRL) on 29 October 2008 with an increased disability rating instead of being discharged by reason of disability with severance pay on the same date.  He further requests subsequent placement on the Permanent Disability Retirement List (PDRL) based on the 2008 National Defense Authorization Act (NDAA).

2.  The applicant states he received a 10 percent disability rating and was discharged with severance pay when he was eligible to be placed on the TDRL with a higher disability rating based on a new law he was not aware of.  He claims the new law took place sometime in October 2008.  He signed out of the Warrior Transition Unit at Fort Hood, Texas on 16 September 2008 on permissive temporary duty.  His Physical Evaluation Board Liaison Officer was unable to contact him to inform him of the changes. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Department of Veterans Affairs (VA) Rating Decisions, dated 9 and 14 December 2009, in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 
15 November 2006 and was trained in and awarded military occupational specialty (MOS) 68J (Medical Logistics Specialist).  His record shows he was promoted to specialist/E-4 on 1 July 2008, and this is the highest grade he attained while serving on active duty.  

2.  The applicant's record contains a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) that shows a PEB evaluated the applicant's case at 
Fort Sam Houston, Texas, on 11 July 2008.  The PEB determined the applicant was unfit for further service as a result of post-traumatic stress disorder (PTSD) that required psychotropic medication and psychotherapy.  His condition was determined to have been a result of non-combat stressors related to a condition that occurred in the Continental United States (CONUS).  The PEB awarded the applicant a 10% disability rating under the VA Schedule for Rating Disabilities (VASRD) code 9411 and recommended that he be separated with severance pay.  

3.  On 24 July 2008, the applicant concurred with the PEB findings and recommendation and waived his right to a formal hearing.  On 31 July 2008, the PEB findings and recommendation were approved on behalf of the Secretary of the Army.  On 29 October 2008, the applicant was discharged accordingly.

4.  The DD Form 214 issued to the applicant at the time of his discharge shows he was separated under the provisions of chapter 4, Army Regulation 635-40, by reason of disability with $10,533.40 in severance pay.   

5.  The applicant provides VA Rating Decisions, dated 9 and 14 December 2009.  They show he was granted service connection for PTSD with a 50% disability rating, effective 30 October 2008.  They also shows he was granted service connection for the following three conditions, all with a 0% disability rating:  Right shoulder tendonitis; Left knee patello-femoral pain syndrome; and Right knee patello-femoral pain syndrome.  

6.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

   a.  Paragraph 3–9 provides guidance for the TDRL.  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, 
grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

   b.  Paragraph 4-17 provides guidance for  PEBs.  Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendation may be revised. 

7.  The VASRD, section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

8.  The 2008 NDAA, section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA.  

9.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three BCMRs will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.  It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions.  Therefore, as a matter of equity and policy, provisions of the Department of Defense (DoD) or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and determined to have partial merit.


2.  The 2008 NDAA provided that the VASRD must be utilized during the medical evaluation of military personnel.  Subsequent DoD guidelines and general equitable principles extend this requirement to all Soldiers medically discharged since 11 September 2001.  The applicant's diagnosis of PTSD warrants amendment of his PEB findings based on the application of the unmodified VASRD.

3.  The applicant should be retroactively placed on the TDRL for 6 months with no less than a 50 percent disability rating effective the day after he was medically separated.

4.  Based on the available applicable evidence, the U.S. Army Physical Disability Agency (PDA) should reevaluate the applicant's medical condition without regard to any DoD or Army regulations or guidelines that were inconsistent with the VASRD in effect at the time of the original adjudication to determine if the applicant’s condition 6 months after placement on the TDRL warrants placement on the PDRL.

5.  The applicant's request for placement on the PDRL based on the 2008 NDAA was also carefully considered.  Based on the foregoing, it is premature to grant this portion of the applicant's request.  After the PDA completes the reevaluation, the applicant may be entitled to this relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  retroactively placing the individual on the TDRL for 6 months at no less than 50 percent disability rating effective the day after he was medically separated.

	b.  the PDA reevaluating his medical condition based on all available applicable evidence without regard to any DoD or Army regulations or guidelines that were inconsistent with the VASRD in effect at the time of the original adjudication to determine if the applicant’s condition 6 months after placement on the TDRL warrants placement on the PDRL.

2.  The Defense Finance and Accounting Service should audit the applicant's pay account and ensure appropriate payment as a result of the above corrections.  

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to placement on the PDRL at this time.  




      _______ _   _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)                                         AR20090016071



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ABCMR Record of Proceedings (cont)                                         AR20090016071



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