IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100000192 


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 reconsideration of his earlier request to correct his record to show he was medically retired.  

2.  The applicant states he firmly believes the Physical Evaluation Board (PEB) at Fort Lewis, Washington, failed to properly consider all of the evidence when they discharged him from the Army.  He previously provided all applicable regulations and laws pertaining to the way the PEB determines disability ratings.  Based on the new evidence provided and all other evidence previously submitted, he again respectfully requests that the Board reconsider his case and require the Army to medically retire him under the applicable law and correct his discharge to reflect that he was medically retired and that he is entitled to all benefits and services of a retired service member.  

3.  The applicant provides copies of the following documents:

* A memorandum from the U.S. Army Medical Department Activity, Department of Psychiatry, Fort Carson, Colorado
* Two Medical Evaluation Board (MEB) Consultations
* MEB and PEB Proceedings

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080014351, on 18 December 2008.

2.  He submits copies of a memorandum from the U.S. Army Medical Department Activity, Department of Psychiatry, Fort Carson, Colorado; his MEB Consultation; and his MEB and PEB Proceedings.  These documents are new evidence that will be considered by the Board.

3.  The applicant's military records show he enlisted in the Regular Army on 25 January 1978.  He completed training and was awarded military occupational specialty (MOS) 95B (Military Policeman).  He served in Panama from 
30 October 1979 to 22 October 1982 and from 17 August 1989 to 6 August 1990.

4.  In a memorandum, dated 19 February 1993, a Clinical Psychologist with the Department of Psychiatry, Fort Carson, stated in December 1992, the applicant was initially seen in that department for assessment and treatment. Psychological testing revealed the presence of post traumatic stress disorder (PTSD) and medication was started for both depression and anxiety.  He was diagnosed as also suffering from a personality disorder with narcissistic and antisocial features, which is a rigid personality style which interfered in relationships.  

5.  Two undated MEB Consultations show his chief complaints were nightmares which disrupted his sleep and daytime flashbacks in which he re-experienced combat action in Panama.  He was diagnosed with PTSD and a personality disorder.  An expeditious discharge was recommended due to the expected lengthy recovery period.  It was stated that he may qualify for the Temporary Disability Retired List (TDRL) and needed immediate psychiatric/psychological individual and group therapy.

6.  On 30 April 1993, an MEB convened and considered his diagnoses of PTSD, a personality disorder, a prolapsed mitral valve, and hypertension.  The MEB recommended that he be referred to a PEB for consideration for medical separation or placement on the TDRL.

7.  On 15 June 1993, an informal PEB convened and considered his diagnosis of PTSD, personality disorder (Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 9411), prolapse of the mitral valve, and hypertension. The conditions of a personality disorder, a prolapsed mitral valve, and hypertension were found to be neither unfitting nor ratable.  The PEB found him physically unfit for PTSD, rated as mild impairment of social and industrial adaptability, EPTS (existed prior to service) factor (Axis III).  He was awarded a net rating of 10 percent and it was directed that he be separated with severance pay.  

8.  There is no evidence he concurred or non-concurred with the PEB or requested a formal hearing.  

9.  He was honorably discharged on 19 August 1993, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B, for physical disability with severance pay.  He was credited with 15 years, 6 months, and 25 days of net active service.

10.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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 office, grade, rank, or rating.  It provides for MEBs, 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(Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

11.  Army Regulation 635-40 also specifies PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

12.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

13.  At the time, Department of Defense Instruction (DODI) 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) replaced some sections of the VASRD.  The DODI noted that the VASRD percentage ratings represented, as far as could practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries.  However, not all the general policy provisions of the VASRD were applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and were intended to provide guidance under laws and policies applicable only to the VA.  

14.  DODI 1332.39 stated that loss of function was the principal criterion for establishing the level of impairment resulting from mental illness.  Loss of function was reflected in impaired social and industrial adaptability.  When the impairment was rated as mild, then a 10 percent rating was given.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows in 1993 he was directed to an MEB after being diagnosed with PTSD.  The MEB referred him to a PEB.  On 15 June 1993, a PEB found him unfit for PTSD, rated as mild impairment of social and industrial adaptability, with a net rating of 10 percent.  The PEB recommended separation with severance pay.  He was subsequently separated from active duty on 
19 August 1993 due to a physical disability.  PTSD rendered him functionally unfit to perform the duties of his grade and primary specialty, but there is no evidence to show his unfitness due to PTSD was anything other than mild at the time he separated from active duty.  There is no evidence any of his other conditions rendered him unfit to perform his duties.

2.  In the course of the MEB/PEB proceedings, he had the opportunity to non-concur with any of the determinations that the boards made.  He knew, or should have known that any disagreement he had would have been considered.  It appears that during the PEB process he concurred and the process was carried through to conclusion.  His disability was properly rated in accordance with the VASRD.

3.  There is no evidence of an error or injustice in his physical evaluation process for his condition or in the PEB's findings.  There is also no evidence he was precluded from offering any relevant material evidence in his case and he provides insufficient evidence to show his condition of PTSD was not properly considered or rated.  His contentions and the documents that he submitted do not demonstrate error or injustice in his MEB or PEB processing nor error or injustice in the disposition of his case.

4.  He has failed to show with the evidence submitted and with the evidence of record that he should have received a higher disability rating and retirement due to permanent physical disability.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080014351, dated 18 December 2008.



      _______ _  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)                                         AR20100000192



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)