BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20100010017


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 previous request that he be medically retired.

2.  The applicant states he required congressional assistance in resubmitting his request.

3.  The applicant provides voluminous inpatient and outpatient medical records from the Department of the Army (DA) and the Department of Veterans Affairs (DVA).

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 AR20080013148, on 23 October 2008.

2.  The applicant submitted copies of his DA medical records in support of his application.  Not all of these documents were previously reviewed by the ABCMR and are considered new evidence warranting consideration by the Board.

3.  The DVA Regional Office, Houston, TX, in a 1 March 2005 Rating Decision, awarded the applicant 100 percent service-connected disability for severe post 

traumatic stress disorder (PTSD).  The applicant believes this should entitle him to a physical disability retirement from the Regular Army.

4.  The applicant served in the peacetime Regular Army from 20 November 1979 through 11 October 1989.  He served in military occupational specialty (MOS) 19E (Armor Crewman) from 14 March 1980 to 7 May 1986, then he served in MOS 00R (Recruiter) from 27 May 1986 to 1 May 1988.  He ended his active service as an armor crewman in Korea.

5.  The applicant's service medical records are unremarkable until he began serving as a recruiter assigned to the Cleveland Recruiting Battalion with duty in Toledo, OH.  Like all recruiters, he was under pressure to fill quotas for new accessions.  The record shows he complained about his long duty hours and the effect his job was having on his marriage.

6.  The applicant's command was unsympathetic and he was ultimately admitted to Ireland Army Community Hospital (IACH), Fort Knox, KY, on or about 23 May 1988, because he was "tired of this."  A Narrative Summary (NARSUM) written on 15 September 1988 stated:

* He was being processed for discharge for being overweight (Army Regulation 635-200, chapter 5)

* He was separated from his wife and in the process of divorce

* He was previously diagnosed as suffering from stress depression by the DVA and a civilian hospital

* He was well-developed, well-nourished, tall (6 feet), heavy (284 pounds), and a weight-lifter

* His speech was clear, coherent, and goal-directed with no defects, no looseness of thought or psychotic ideation, thinking was linear, affect was anxious and slightly flat

* He responded to rest and therapy and was discharged with the caveat he return to his armor crewman MOS and not return to recruiting duty.

7.  The applicant was discharged from IACH on 15 August 1988 and transferred to the Far East Pacific Command (Republic of Korea), where he was assigned to Headquarters and Headquarters Company, 2nd Battalion, 72nd Armor, 2nd 

Infantry Division from 28 September 1988 through 10 October 1989.  Although he was enrolled in the Army Weight Control Program and was barred from reenlistment, he was honorably discharged on 11 October 1989 by reason of expiration of his term of service (ETS).

8.  The applicant's DA Forms 2166-6 (Enlisted Evaluation Report) and 2166-7 (Noncommissioned Officer (NCO) Evaluation Report), both prior to and after his hospitalization, show that he successfully accomplished all assigned missions.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System (PDES), set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provided for Medical Evaluation Boards (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 physical evaluation board (PEB).

10.  Army Regulation 635-40 provides that when a Soldier is being separated by reason other than physical disability, his continued performance of assigned duty commensurate with his rank or grade until he is scheduled for separation or retirement creates a presumption that he is fit.  This presumption can be overcome only by clear and convincing evidence that he was unable to perform his duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

11.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities (VASRD).  Army Regulation 635-40, appendix B, modifies those provisions of the rating schedule inapplicable to the military and clarifies rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.



12.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests medical retirement, essentially because the DVA has rated him 100 percent disabled for PTSD.

2.  The record shows the applicant was hospitalized for stress and depression for 84 days, but was discharged in good condition and returned to duty as an armor crewman.  The evidence of record shows he was able to successfully perform his duties, thus establishing the presumption that he was physically fit up to the point he was honorably discharged due to ETS on 11 October 1989.

3.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  There is no record of Army medical authorities referring the applicant to the PDES for a fitness evaluation.  This would tend to suggest that doctors were confident the applicant had made a full recovery from his stress-related condition and could continue his military career.  Had his medical condition so warranted, doctors would have referred him for disability processing and he would have undergone an MEB and PEB; this did not happen.  Competent medical authority determined that the applicant was medically fit for separation.  Accordingly, he was separated from active duty for reasons other than physical disability.

4.  An award of a DVA disability rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the DVA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

5.  Based on the foregoing, there is no basis for granting the applicant's requested relief.


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 AR20080013148, dated 23 October 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)                                         AR20100010017



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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