IN THE CASE OF:	  

		BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100016901 


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 Post Traumatic Stress Disorder (PTSD) be added to his unfitting conditions and his disability rating be increased to 100 percent.  He also requests, in effect, his retirement orders be corrected to show his disability resulted from combat operations in Iraq.    

2.  The applicant states:

* The Department of Veterans Affairs (DVA) rated him at 100 percent for PTSD in July 2007
* He has PTSD with secondary depression
* He originally hurt his left knee in a training accident while preparing for a deployment to Iraq
* He hurt his other knee while in Iraq
* He got a slight tear in his left shoulder
* He has also had neck and back pains
* He was blown up in an improvised explosive device [IED] explosion which resulted in ringing in his head and he still suffers from headaches

 3.  The applicant provides:

* DVA documentation
* Undated letter he provided to the Department of Defense Physical Disability Board (PDBR)
* Retirement orders, dated 11 January 2010
* Discharge orders, dated 27 October 2006
* Revocation orders, dated 29 December 2009
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Social Security Notice

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 21 January 2004 and trained as an infantryman.  He served in Kuwait/Iraq from 29 January 2005 to 28 December 2005.  

3.  The applicant was medically separated on 4 December 2006 with severance pay (20 percent).  The medical basis for his separation was chronic neck pain 
(10 percent), chronic low back pain (0 percent), and chronic bilateral knees and left shoulder pain (10 percent).

4.  DVA records provided by the applicant show he was hospitalized in July 2007 and diagnosed with PTSD.

5.  The PDBR convened on 1 September 2009 to review the applicant's disability rating.  The record of proceedings states, in pertinent part:

* His left knee pain was due to trauma in March 2004
* His right knee, left (non-dominant) shoulder, neck and lower back pain were all insidious in onset (no specific recalled trauma)
* PTSD was not diagnosed in service and nothing in the medical records indicates mental health conditions that would have risen to the unfitting level at the time of service discharge
* PTSD and/or any other mental health diagnosis were not addressed by the MEB, Physical Evaluation Board

6.  The PDBR recommended the applicant's separation be recharacterized to reflect permanent disability retirement with the combined disability rating changed from 20 percent to 40 percent. 

7.  On 1 October 2009, the recommendation of the PDBR was approved.  His unfitting conditions were modified to show:

* Right knee, chronic pain (10 percent)
* Left knee, chronic pain (10 percent)
* Left shoulder, impingment (10 percent)
* Chronic neck pain, without neurologic abnormality (10 percent)
* Chronic lower back pain, without neurologic abnormality (10 percent) 

8.  Headquarters, Fort Stewart and Hunter Army Airfield Orders 011 0001, dated 11 January 2010, released the applicant from duty, effective 4 December 2006, because of physical disability incurred as a result of injury while entitled to receive basic pay and was permanently retired.  The orders state “Disability is based on injury or disease received in LOD as a direct result of armed conflict or caused by instrumentality of war and incurred in the LOD during a war period as defined by law:  No.”  It further states “Disability resulted from a combat-related injury as defined in 26 USC 104 [Title 26, U.S. Code, section 104]: No.”

9.  The applicant provided DVA documentation which shows he was granted service connection for PTSD with secondary depression (100 percent).

10.  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.

11.  Title 26, U.S. Code, section 104, states in pertinent part, that the term “combat-related injury” means personal injury or sickness which is incurred as a direct result of armed conflict; while engaged in extrahazardous service, under conditions simulating war; or which is caused by an instrumentality of war.






DISCUSSION AND CONCLUSIONS:

1.  The applicant requests PTSD be added to his unfitting conditions.  However, he provides no evidence to show PTSD rendered him unfit to perform his military duties.
  
2.  DVA records show the applicant was diagnosed with PTSD in July 2007.  Since PTSD was not diagnosed while the applicant was in the Army and nothing in the medical records reviewed by the PDBR indicates mental health conditions that would have risen to the unfitting level at the time of his separation in 2006, there is insufficient evidence on which to add PTSD as an unfitting condition.   

3.  The applicant's contention the DVA rated him for PTSD 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.  

4.  There is insufficient evidence to show the applicant’s disabilities were improperly rated by the PDBR.  Therefore, there is no basis for granting the applicant's request to increase his disability rating to 100 percent.

5.  The applicant requests his retirement orders be corrected to show his disability resulted from combat operations in Iraq.  However, no evidence shows his disabilities were incurred as a direct result of armed conflict; while engaged in extrahazardous service, under conditions simulating war; or which is caused by an instrumentality of war.  By his own admission, the applicant contends he hurt his left knee in a training accident prior to his deployment to Iraq.  PDBR records show his right knee, left (non-dominant) shoulder, neck, and lower back pain were all insidious in onset (no specific recalled trauma).  Therefore, there is insufficient evidence on which to amend the applicant's retirement orders.

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)                                         AR20100016901





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ABCMR Record of Proceedings (cont)                                         AR20100016901



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