IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100013684 


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 that his medical evaluation board (MEB) and physical evaluation board (PEB) proceedings be changed to reflect the proper diagnosis of post-traumatic stress disorder (PTSD) instead of Anxiety Disorder NOS (not otherwise specified).  He further requests that his disability rating be increased to greater than 30 percent (%) for PTSD resulting from combat exposure in Iraq and correction of his DD Form 214 (Certificate of Release or Disability from Active Duty) to reflect his disability is combat-related.

2.  The applicant states that upon return from Iraq in 2004 he began receiving treatment for symptoms associated with PTSD.  Although initially diagnosed as Anxiety Disorder NOS, his symptoms persisted and were later substantiated as PTSD resulting from combat exposure during deployment to Iraq.  He further states that his PTSD was not properly diagnosed by Army physicians and that the MEB failed to acknowledge treatment received prior to 2006 and further dismissed the clinical impressions of his primary mental health providers.

3.  The applicant provides:

* A copy of his DD Form 214
* A copy of his Department of Veterans Affairs (VA) rating decision
* Copies of his MEB and PEB board proceedings
* A copy of the MEB narrative
* A memorandum for record - PTSD, Chronic Care Flow Sheet


* Copies of medical treatment records
* Copies of his physical profiles
* His suspension of clinical privileges

CONSIDERATION OF EVIDENCE:

1.  He was commissioned as a U.S. Army Reserve (USAR) Medical Service second lieutenant.  He was awarded the specialty of a social worker and he was promoted to the rank of captain on 1 October 2000.

2.  He deployed to Kosovo from September 2001 to January 2002 as a stress control officer and to Iraq from August 2003 to February 2004 for duty as a social worker with the 85th Combat Stress Control Detachment Prevention Team, 4th Infantry Division.  He was subsequently assigned to Walter Reed Army Medical Center as a first-year social work fellow.  In July 2006, while serving as a second-year social work fellow, he was transferred to Fort Carson, CO.

3.  On 1 February 2007, he received a general officer memorandum of reprimand (GOMOR) for disorderly conduct while intoxicated.

4.  The applicant was selected for promotion to the rank of major with a promotion eligibility date of 1 May 2007; however, he was under a suspension of favorable personnel actions and he was not promoted.

5.  On 21 July 2007, nonjudicial punishment was imposed against him for making a false official statement.

6.  On 28 April 2008, the applicant was removed from the major’s promotion list by a Promotion Review Board (PRB).

7.  On 19 June 2008, a board of inquiry recommended that the applicant be involuntarily discharged for misconduct with an honorable discharge.

8.  On 10 November 2008, an MEB convened at Fort Carson and determined that the applicant had Anxiety Disorder NOS, cervical degenerative disc disease at C5-C6 and C6-C7 and paresthesias, chronic right ankle pain with tenosynovitis of flexor hallucis longus, and posterior tibialis tendon with accessory navicular bone seen on MRI [magnetic resonance imaging].  Additional diagnoses that did not cause him to fall below retention standards included obstructive sleep apnea on CPAP [continuous positive airway pressure], GERD (gastroesophageal reflux disease), allergic rhinitis, and hyperlipedemia.  The MEB recommended the 


applicant's referral to a PEB.  The applicant did not concur with the findings and recommendations and indicated that he was appealing the decision; however, there is no copy of an appeal in the available records.

9.  On 21 November 2008, the Department of the Army Board of Review for Eliminations recommended the applicant be eliminated from the service for misconduct with an honorable characterization of service.

10.  On 12 January 2009, a PEB convened at Fort Lewis, WA which diagnosed him as having Anxiety Disorder NOS, occurring in the context of an alcohol-related incident in May 2006 and resultant administrative proceedings and Degenerative Arthritis of the spine.  The PEB recommended a combined disability rating of 20% and separation with severance pay.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

11.  On 10 February 2009 the Deputy Assistant Secretary of the Army (Review Boards) approved the findings and recommendations of the PEB and directed the applicant's separation based on physical disability.

12.  Accordingly, on 15 April 2009, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, due to disability with severance pay, non-combat related.  He had served 10 years, 5 months, and 6 days of total active service and he was paid $126,713.40 in disability severance pay.

13.  On 27 May 2009, the VA granted him a 90% combined disability rating percentage for the following:

* Obstructive sleep apnea - 50%
* PTSD - 50%
* Degenerative Disc Disease - 20%
* Right elbow strain - 10%
* Right knee injury with surgery - 10%
* Bilateral plantar fasciitis and bunionettes - 10%

14.  On 30 September 2010, the staff of the Board advised the applicant of his option to apply to the Department of Defense Physical Disability Board of Review instead of this Board.  The applicant did not respond.


15.  Army Regulation 635-40, paragraph 3-2b, provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

16.  There is a difference between the VA and Army disability systems.  While both the VA and the Army use the VA Schedule for Rating Disabilities (VASRD) to determine disability ratings, not all of the general policies set forth in the VASRD apply to the Army; thus there are sometimes differences in ratings.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability. 

17.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  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.  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 VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s disability was properly rated in accordance with the VASRD and his separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  The applicant has not provided sufficient documentation to support his contention that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.  It is also noted that 


the applicant, who was familiar with the technical aspects of his diagnosis at the time, concurred with the findings and recommendations of the PEB. 

3.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

4.  The fact that the VA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department.  

5.  In view of 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 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)                                         AR20100013684



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ABCMR Record of Proceedings (cont)                                         AR20100013684



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