BOARD DATE:	24 June 2010 

		DOCKET NUMBER:  AR20090020435 


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 correction of his records to show he was medically retired.

2.  The applicant states that after serving his country in Iraq and returning to the United States he was diagnosed with Post Traumatic Stress Disorder (PTSD).  He could no longer serve; therefore, he should have been retired.

3.  The applicant provides separation orders, a letter from the Department of Veterans Affairs (DVA) New Jersey Health Care System, and a copy of his DVA rating decision in support of this application.

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 U.S. Army Reserve (USAR) on 30 July 2001 and upon completion of initial entry training he was awarded military occupational specialty 42L (Administrative Specialist).  

3.  Orders M-041-0031, Headquarters, United States Army 77th Regional Support Command, Fort Totten, New York, dated 10 February 2003, ordered the applicant to active duty in support of Operation Enduring Freedom.  He served in Kuwait and Iraq from 5 May 2003 to 28 April 2004.

4.  On 30 May 2004, the applicant was released from active duty due to completion of required active service and transferred to his USAR unit.  He completed 1 year, 3 months, and 21 days of creditable active service.

5.  In a memorandum dated 10 November 2005, the command surgeon notified the applicant that as a result of a medical examination, he was determined to be medically disqualified for continued service in the USAR due to PTSD according to Army Regulation 40-501 (Standards of Medical Fitness).  He was also advised that as a result of his medical disqualification, he had the following options:

	a.  request reassignment to the Retired Reserve in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers);

	b.  request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 if he had at least 15 but less than
20 qualifying years of service for retired pay purposes;

	c.  request an honorable discharge from the USAR; or

	d.  request a review of his non-duty related medical disqualification by a Physical Evaluation Board or Medical Evaluation Board (PEB/MEB).  

6.  The applicant was further instructed to complete and return a memorandum showing his option regarding his medical disqualification.

7.  In a memorandum dated 10 November 2005, the applicant acknowledged receipt of notice regarding his medical disqualification and the options available to him.  He elected to request an honorable discharge from the USAR.

8.  On 5 February 2006, the applicant was notified by his unit commander he was initiating action to separate him from the USAR under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations).  The applicant acknowledged notification of the proposed separation action and elected not to make a statement or rebut the reasons for this action.

9.  On 8 February 2006, Headquarters, 77th U.S. Army Regional Readiness Command, Fort Totten, New York, published Orders 06-039-00027, honorably discharging the applicant from the USAR, effective 12 February 2006, in accordance with Army Regulation 135-178.

10.  The applicant submitted a letter from the DVA New Jersey Health Care System, dated 20 September 2005 that shows he was diagnosed with PTSD; and a copy of his DVA rating decision, dated 7 May 2007 that shows he was awarded service-connected disability compensation for PTSD.

11.  Army Regulation 135-178 prescribes the policies for the separation of enlisted Soldiers from the Reserve Components.  Chapter 15 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness.

12.  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.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

13.  Army Regulation 635-40 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.

14.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-33 states that anxiety, somatoform, or dissociative disorders, when (a) persistence or recurrence of symptoms are sufficient to require extended or recurrent hospitalization; or (b) persistence or recurrence of symptoms necessitate limitations of duty or duty in a protected environment; or (c) persistence or recurrence of symptoms result in interference with effective military performance; are causes for referral to an MEB.

15.  The Diagnostic and Statistical Manual of Mental Disorders, 4th edition, classifies PTSD as an Anxiety Disorder.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be medically retired was carefully considered.  However, there is insufficient evidence to show he should have been medically discharged or retired by reason of physical disability.

2.  The evidence of record confirms the applicant was found unfit for further service based on his medical condition.  Accordingly, he was notified of this finding and the options available to him.  He did not request a review of his medical disqualification by a PEB and given the fact that he had not completed the required number of years of qualifying service for normal or early non-regular retirement he elected to be honorably discharged from the USAR.  Accordingly, he was honorably discharged on 12 February 2006.

3.  Since it appears the applicant's PTSD may have been incurred while he was on active duty, it further appears that he may not have been properly counseled concerning the options available to him due to his medical disqualification.  It would be equitable to provide the applicant the opportunity to have his medical fitness determined by an MEB/PEB. An MEB/PEB could find the applicant to be unfit for duty with a rating of 30 percent or greater, which would entitle him to retired pay.

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.  directing the Office of The Surgeon General to contact the individual and arrange, via appropriate medical facilities, an MEB; and

	b.  if appropriate, by referral to an informal PEB.

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the MEB and, if necessary, the PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  In the event a PEB finds that the individual concerned has a medically unfitting condition and it is compensable, action will be taken to correct his records to show he was appropriately separated effective 12 February 2006.

5.  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 showing the individual concerned was medically retired without going through the MEB/PEB process.




      _______ _   __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)                                         AR20090020435



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