IN THE CASE OF:	  

		BOARD DATE:	    21 September 2010

		DOCKET NUMBER:  AR20100009857 


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, a medical retirement. 

2.  The applicant states:

* His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged due to a physical condition, not a disability
* He was diagnosed with Post Traumatic Stress Disorder (PTSD) while on active duty
* He should have been medically retired or discharged with a 50 percent disability
* Currently he is being paid at the 100 percent rating by the Department of Veterans Affairs (DVA) due to individual unemployability and PTSD (70 percent) 

3.  The applicant provides:

* DD Form 214
* Medical records, dated 18 May 2004 and 7 June 2004
* DVA Rating Decision, dated 2 April 2009
* Memorandum, dated 6 August 2004





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 17 May 2000 for a period of 
4 years.  He trained as a field artillery firefinder radar operator.  He served in Iraq from 8 February 2003 to 17 June 2003.  On 1 October 2003, he was honorably discharged for immediate reenlistment.  He reenlisted on 2 October 2003 for a period of 3 years.  

3.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant’s DD Form 214 shows he was honorably discharged on 16 September 2004 under the provisions of Army Regulation 635-200, paragraph 5-17, for a physical condition, not a disability.  He had served a total of 4 years and 4 months of creditable active service.

4.  In support of his claim, the applicant provided a medical record, dated 18 May 2004, referring to PTSD.  It appears to represent the end of a clinic note, the portion containing the whys and wherefores is not included, and there is no patient name on the document.  He provided a medical record, dated 7 June 2004, which shows an admitting diagnosis of PTSD and a final diagnosis and condition at discharge of adjustment disorder, panic disorder with agoraphobia, chronic low back pain, and insomnia.  

5.  The applicant also provided a DVA Rating Decision, dated 2 April 2009, which shows he was granted service connection for PTSD with panic attacks, agoraphobia, depressive disorder, anxiety, and insomnia (70 percent); residuals, lumbar strain (40 percent); eczema (10 percent); residuals, bunionectomy, right food (0 percent); and residual, bunionectomy, left foot (0 percent).

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-17 sets the policy and prescribes procedures for separating members on the basis of other physical or mental conditions not amounting to a disability that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to, chronic airsickness or seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.

7.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

8.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet or all his service medical records to consider, it is presumed his reason for separation was appropriate.  As a result, there is no basis for granting the applicant's request.

2.  The applicant's contention he is currently being paid at the 100 percent rating by the DVA was noted.  However, a rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a 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 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)                                         AR20100009857



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100009857



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1