BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100013905 


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 discharge with severance pay be changed to disability retirement.

2.  The applicant states he was placed on the Temporary Disability Retired List (TDRL) with a 30 percent disability rating for major depressive disorder.  He further states based on the TDRL summary, he signed his "Notification of Action Taken on Periodic Physical Examination" letter concurring with those findings because he was under the impression he would be placed on the permanent disability retired list (PDRL).  He adds he was discharged on 25 May 1995 with a 10 percent disability rating.  He states the Department of Veterans Affairs (VA) rated him at 100 percent disabled effective 1 July 1994.  He further adds he did not submit this request earlier because he did not realize his record was incorrect until he became aware of the law change that medical retirees could apply for Army Combat-Related Special Compensation (CRSC).

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 8 June 1994
* U.S. Total Army Personnel Command Orders D90-6, dated 11 May 1994, placing him on the TDRL
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 22 April 1994
* DA Form 3947 (Medical Evaluation Board Proceedings), dated 11 April 1994 with narrative and addendum
* Notification of Action Taken on Periodic Physical Examination, dated 9 February 1995 and Optional Form (OF) 275, dated 3 February 1995
* DA Form 199, dated 17 April 1995
* U.S. Total Army Personnel Command Orders D111-12, dated 25 May 1995, removing him from TDRL and discharging him
* applicant's Statement given at a field hearing of the Veterans Affairs Committee for Health and Compensation Issues for Persian Gulf Veterans
* applicant's Statement given at hearings before the Committee of Veterans Affairs United States Senate Health and Compensation Issues Persian Gulf Veterans
* additional supporting documents, VA Rating Decision documents
* Defense Finance and Accounting Service (DFAS) letter to the applicant's elected representative, dated 26 July 2010
* copies of documents sent to his elected representatives requesting assistance in this matter   

 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's military records show he enlisted in the Regular Army on 7 September 1989.  He completed initial entry training, was awarded the military occupational specialty of attack helicopter repairer, and was promoted to pay grade E-4.

3.  The applicant was referred to a Medical Evaluation Board (MEBD) due to complaints of depression, dizziness, loose stools, and anger attacks.

4.  On 10 April 1994, an MEBD diagnosed him with major depression and irritable bowel syndrome and recommended he be referred to a PEB.  The applicant indicated he did not desire to continue on active duty and he agreed with the MEBD's findings and recommendation.

5.  On 21 April 1994, an informal PEB found the applicant unfit for duty under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) diagnostic code 9207 (major depression, chronic, with a definite impairment for social/industrial adaptability), rated 30 percent disabled.  The condition listed as medical board diagnosis #2 was considered by the PEB and found to be neither unfitting nor ratable.

6.  The PEB recommended a combined rating of 30 percent and placement on the TDRL with reexamination on 1 March 1995.  The applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing in his case.

7.  On 8 June 1994, he was retired for temporary disability and placed on the TDRL effective 9 June 1994, rated 30 percent disabled.

8.  A Fitzsimons Army Medical Center letter, dated 9 February 1995, stated that a copy of the Narrative Summary of his Periodic Physical Examination (September 1994) was enclosed and stated that regulation required his case to be forwarded to the PEB which would determine the appropriate disposition.  He acknowledged receipt of the narrative summary and concurred with the MEBD findings.

9.  A second PEB was convened on 17 April 1995.  This PEB found the applicant unfit under VASRD code 9405, major depressive disorder, currently functioning in a stable but limited capacity, having discontinued medications and therapy and working as a Forest Service Aid.  The PEB recommended a combined rating of 10 percent and separation of the applicant with severance pay if otherwise qualified.  The applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing in his case.

10.  On 25 May 1995, the applicant was removed from the TDRL and discharged due to disability with severance pay, rated 10 percent disabled.

11.  A VA Rating Decision, dated 15 May 1995, changed his rating from 10 percent to 100 percent for major depression with somatization, retroactive to 9 June 1994.

12.  Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD, in effect at the time, showed that for diagnostic code 9405 the disability rating was 30 percent for definite impairment in the ability to establish or maintain effective and wholesome relationships with people.  The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment.  A 10 percent disability rating is assigned when the diagnostic criteria is less than for the 30 percent, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment.

13.  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 rated at least 30 percent.

14.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have received a medical retirement instead of a discharge with severance pay.

2.  The applicant agreed with the MEBD's findings and recommendation.  He also agreed with the findings and recommendation of both PEBs and both times he waived his right to a formal PEB.

3.  The findings and recommendations of the Narrative Summary and the PEB are consistent with a 10 percent disability rating for the applicant's major depressive disorder.  In order for him to receive a medical retirement he would have had to have been rated 30 percent for his condition.  A higher rating of 30 percent would require evidence showing a definite impairment in the ability to establish or maintain effective and wholesome relationships with people and where the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment.  The April 1995 PEB found that he had discontinued medication and therapy and was working as a Forest Service aid.

4.  There is insufficient evidence to support a 30 percent disability rating for the applicant's disability rating.  Therefore, the disability rating of 10 percent assigned by the PEB and his discharge with severance pay are determined to be correct.

5.  Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, operating under its own laws and regulations, can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  As such, the award of a higher VA disability rating does not mean the rating assigned by the Army was in error.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20100013905



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ABCMR Record of Proceedings (cont)                                         AR20100013905



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