IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100015313 


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 a medical retirement.  He also requests, in effect, a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) imposed on 11 October 2006 be set aside.

2.  The applicant states:

* when he received an Article 15 he was not being treated for post-traumatic stress disorder (PTSD) or a traumatic brain injury (TBI)
* the Department of Veterans Affairs (VA) rated him at 100-percent disabled and this rating shows a medical retirement was the correct choice
* he was a great Soldier, but having a TBI with PTSD caused a change in him
* the Article 15 for being absent without leave (AWOL) was the result of not being treated
* he should have been medically retired

3.  The applicant provides no documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 January 2003 and trained as an infantryman.  He attained the rank of sergeant and served in Iraq from 8 August 2004 to 29 July 2005.

2.  A DA Form 2627, dated 11 October 2006, shows nonjudicial punishment (NJP) was imposed against the applicant for three specifications of being AWOL from 6 January 2006 to 26 January 2006, 22 February 2006 to 21 April 2006, and 2 June 2006 to 28 July 2006.  His punishment consisted of a reduction to specialist, forfeiture of $921.00 pay for 2 months, extra duty for 45 days, and restriction for 45 days.  The applicant did not appeal the NJP.

3.  On 30 November 2006, a medical evaluation board (MEB) diagnosed the applicant with chronic PTSD.  The MEB referred his case to a physical evaluation board (PEB).  Additional MEB diagnoses which did not cause the applicant to fall below retention standards, included:

* chronic intermittent right shoulder pain
* status post two concussive injuries
* gastroesophageal reflux disease symptoms

4.  On 15 February 2007, a PEB found the applicant physically unfit due to PTSD onset during deployment to Iraq in 2005.  The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay.  The proceedings also state:

* his symptoms included insomnia, nightmares, and anxiety in crowds
* he had numerous discipline issues since his return, to include driving under the influence and AWOL
* he was treated with medication and counseling
* additional MEB diagnoses were determined to meet retention standards

5.  On 15 February 2007, the applicant concurred with the PEB's findings and waived a formal hearing.

6.  On 13 March 2007, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and recommendations.

7.  On 29 March 2007, the applicant was honorably discharged in the rank of specialist under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), for disability with severance pay.

8.  There are no VA medical records available.

9.  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 Temporary Disability Retired List (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.  In addition, the condition must be determined to be temporary or unstable.

	b.  Paragraph 4-17 provides guidance for PEB's.  Specifically, it states that PEB's 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.

10.  The VA 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 6-month period following the veteran's discharge to determine whether a change in evaluation is warranted.

11.  The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA in making a determination of a member's disability rating.

12.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense for Personnel and Readiness directed that as a matter of policy, all three Boards for Correction of Military Records 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 percent for PTSD unfitting conditions for an initial period of 6 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 the Department of Defense (DOD) or Army regulations or guidelines relied upon by the PEB will not be considered by the Army Board for Correction of Military Records 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.

13.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  It states a commander will personally exercise discretion in the nonjudicial process, evaluate the case to determine whether proceedings under Article 15 should be initiated, and determine whether the Soldier committed the offense where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial.  It states the authority to impose NJP charges a commander with the responsibility of exercising the commander's authority in an absolutely fair and judicious manner.  It states the imposing commander is not bound by the formal rules of evidence before courts-martial.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been medically retired was carefully considered and appears 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 he was initially medically separated with severance pay.

4.  Based on available applicable evidence, the USAPDA should reevaluate his 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.

5.  The applicant's contention that he was rated 100-percent disabled by the VA was noted.  However, a rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

6.  There is no evidence the DA Form 2627, dated 11 October 2006, was improperly imposed.  It appears to have been the commander's judgment that going AWOL three times warranted a one-grade reduction, forfeiture of pay, restriction, and extra duty as punishment.  The Board will not substitute its judgment for that of the commander.  In addition, there are no VA medical records which show the applicant's disability played a role in the underlying Article 15 offenses.  Therefore, there is insufficient evidence on which to grant the applicant's request to set aside the DA Form 2627 at this time.  If the applicant can provide VA medical records which determine his disability played a role in the underlying Article 15 offenses, he can reapply to the Board for removal of the Article 15 and a grade determination at that time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 he was medically separated with severance pay and

	b.  the USAPDA reevaluating his 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 for 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.

3.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to setting aside the DA Form 2627 imposed on 11 October 2006.



      _____________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)                                         AR20100015313



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ABCMR Record of Proceedings (cont)                                         AR20100015313



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