IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100009294 


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 her disability rating be changed from 10 percent to 
50 percent and that she be placed on the Temporary Disability Retired List (TDRL) based on Post Traumatic Stress Disorder (PTSD).  

2.  The applicant states the Department of the Army informed her that an error had been made in her initial disability rating by the Physical Evaluation Board (PEB) and that she should request a correction to her record accordingly. 

3.  The applicant provides a United States Army Physical Disability Agency (USAPDA) letter, dated 22 January 2010, in support of her application.

CONSIDERATION OF EVIDENCE:

1.  On 15 May 2009, a PEB convened and determined the applicant was physically unfit and recommended a combined rating of 10 percent for PTSD.  The PEB further recommended that the applicant be separated with severance pay.

2.  On 3 July 2009, the applicant was honorably discharged by reason of physical disability with severance pay.  

3.  A USAPDA letter, dated 22 January 2010, notified the applicant she had not been properly rated by the PEB and that she should have received an initial disability rating of 50 percent for PTSD.  
4.  The USAPDA letter further informed the applicant she had two options to address this issue.  The first was to apply to the Physical Disability Board of Review (PDBR) and the second was to apply to this Board.  The applicant was also made aware that if her application to this Board was approved she would no longer be eligible for severance pay.  The severance pay would be recouped by the Defense Finance and Accounting Service (DFAS) and she would not receive retirement pay until the entire amount of severance pay was recouped.  

5.  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. 

6.  The Department of Veterans Affairs Schedule for Ratings Disabilities (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.

7.  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 Department of Veterans Affairs.  
8.  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 six 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 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 that her disability rating should be changed to 
50 percent and she should be placed on the TDRL has been carefully considered and found to have 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 PTSD diagnosis 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 date she was initially medically separated with severance pay.

4.  Based on available applicable evidence, the PDA should reevaluate her medical conditions 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 permanent retirement. 



BOARD VOTE:

___X____  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  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 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 a minimum of 
6 months with no less than a 50 percent disability rating effective the date she was medically separated with severance pay; and

	b.  the USAPDA reevaluating her 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 after placement on the TDRL 6 months warrants permanent retirement.

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.  



      _______ _  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)                                         AR20100010649



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100009294



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1