IN THE CASE OF:	  

		BOARD DATE:	    7 October 2010

		DOCKET NUMBER:  AR20100007330 


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, correction of his Physical Evaluation Board (PEB) proceedings to show a disability rating for Post Traumatic Stress Disorder (PTSD).

2.  The applicant states he was never asked about any issue of his mental condition (PTSD).  He entered it on his DD Form 2807-1 (Report of Medical History).  

3.  The applicant provides the following documents:

* a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* two letters from the Department of the Air Force, Review Boards Office, Randolph Air Force Base, TX, dated 6 February and 8 June 2009, in response to his application to the Physical Disability Board of Review (PDBR)
* a DD Form 2807-1
* a Post Deployment Health Assessment
* a DD Form 2808 (Report of Medical Examination)
* medical documents from Winn Army Community Hospital, Fort Stewart, GA
* a DA Form 199 (PEB Proceedings) 
* a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* a PEB Liaison Officer (PEBLO) Counseling Checklist/Statement
* VistA Electronic Medical Documentation - Progress Notes, dated 25 April 2007 and 29 October 2007
* a Certificate of Participation in the PCT [PTSD Clinical Team] Intensive 8-Week Program, dated 2 November 2007 
* a Prudential Financial Group Disability Insurance Employee Statement
* a VA Disability Rating Decision, dated 21 May 2008

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 on 25 June 2002.  He was awarded military occupational specialty 88M (Motor Transport Operator).

3.  His Post-Deployment Health Assessment shows he was deployed to Kuwait/Iraq in support of Operation Iraqi Freedom from 19 January 2003 to
31 July 2003.  

4.  The applicant completed a DD Form 2807-1 on 31 May 2006 for evaluation by a medical board.  This medical document does not indicate he suffered from PTSD.  It did indicate he suffered from nervous trouble, stammering or stuttering, frequent trouble sleeping, and depression or excessive worry.

5.  On 24 July 2006, the applicant was evaluated by an MEB and he was diagnosed as having mechanical thoracic back pain, patellofemoral arthrosis [arthritis of the right knee], and facet joint arthritis of the lumbar spine.  He was referred to a PEB.  During the processing of his MEB, the applicant indicated he did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  On 14 August 2006, he agreed with the findings and recommendation of the MEB.

6.  On 17 August 2006, an informal PEB determined the applicant was physically unfit due to chronic mechanical low back pain with lumbar facet joint arthritis and right patellofemoral [knee] arthritis.  The PEB recommended separation with severance pay with a combined disability percentage of 10 percent (%).  On
21 August 2006, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  

7.  The applicant was accordingly honorably discharged on 7 October 2006 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of physical disability with severance pay.  He had completed 4 years, 3 months, and 13 days of total active service.

8.  The applicant’s VistA Progress Notes indicate he was assessed as having combat PTSD at Axis I.

9.  His VA Rating Decision, dated 21 May 2008, shows he was granted service-connection for PTSD (10%); lumbago [lower back pain] with mild narrowing of L4-5, previously chronic mechanical low back pain with lumbar facet joint arthritis (increased from 10% to 20%); arthralgia [joint pain] of the right knee with calcification (10%); right ankle arthritis (10%); and bilateral pes planus [flat feet] (0%).

10.  On 27 January 2009, the applicant submitted an application to the PDBR.  In an 8 June 2009 letter, the Air Force Review Boards Agency informed the applicant that the PDBR could only review conditions considered by the PEB and, as a result, his application could not be processed.  He was advised to submit an application to this Board.

11.  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.

12.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was evaluated by an MEB in July 2006.  The applicant agreed with the findings and recommendations of the MEB.  There is no evidence which confirms he was diagnosed with or was unable to perform his duties due to PTSD at the time of his MEB.
2.  A 17 August 2006, a PEB found the applicant unfit for military service for a chronic mechanical low back pain with lumbar facet joint arthritis and right patellofemoral [knee] arthritis at a 10% combined disability percentage.  As a result, the applicant was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3), due to disability with severance pay.  The applicant concurred with the findings and recommendations and he waived his right to a formal PEB hearing.

3.  Although the applicant was granted service-connection (10%) for PTSD, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  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.

4.  The evidence of record does not indicate the applicant’s disability processing was in error or unjust or that his medical conditions were improperly evaluated by the PEB.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20100007330



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)