IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100020547 


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 by reason of disability with severance pay be voided and that he be retired by reason of physical disability with at least a 50 percent (%) disability rating percentage for post-traumatic stress disorder (PTSD). 

2.  The applicant states, in effect, that he was not given a disability rating for PTSD at the time of his discharge but subsequently was rated by the Department of Veterans Affairs (VA) for PTSD.  He further states that he was kicked out of the Army and he was told to sign the paper without knowing what was going on.

3.  The applicant provides:

* his VA Rating Decision, dated 6 September 2002
* a Psychological Evaluation, dated 30 October 2000
* two Psychotherapy Evaluations, dated 5 December 2000 and 22 January 2002, respectively
* four pages of treatment records from his medical records
* his award of the Army Commendation Medal (ARCOM) for his role during a sniper attack at Fort Bragg, NC

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 15 October 1991 for a period of 4 years and training as an airborne qualified medical specialist.  He completed his basic training at Fort Sill, OK, his advanced individual training as a medical specialist at Fort Sam Houston, TX and his airborne training at Fort Benning, GA before being transferred to Fort Bragg for assignment to the 325th Airborne Infantry Regiment.  He was advanced to the pay grade of E-4 on 1 January 1994.

3.  On 16 March 1995, he reenlisted for a period of 3 years and assignment to Fort Sill.  On 3 July 1997, he reenlisted for a period of 3 years.  He was promoted to the pay grade of E-5 on 26 September 1997.

4.  A DA Form 3349 (Physical Profile), dated 13 December 1999, shows the applicant was given duty limitations due to knee pain, retropatellar pain syndrome), both knees.

5.  A commander's statement, dated 13 March 2000, stated the applicant's knee problems placed limitations on his ability to perform duties as a combat medic.

6.  On 9 June 2000, he was evaluated by a Medical Evaluation Board (MEB) at Fort Sill for retropatellar pain syndrome, bilateral knees (71966), chronic low back pain (7242), chronic Achilles tendinitis in both tendons (72671), and left shoulder impingement syndrome, chronic (7262).  The MEB recommended the applicant's referral to a Physical Evaluation Board (PEB).  The applicant indicated that he did not desire to continue on active duty and that he agreed with the MEB's findings and recommendation.

7.  On 22 June 2000, a PEB convened at Fort Sam Houston and determined that the applicant was physically unfit.  The PEB recommended a 10% disability rating for bilateral retropatellar pain syndrome and that the remaining diagnoses were not unfitting and thus not rated.  The PEB recommended the applicant's discharge with severance pay with a 10% disability rating.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.
8.  On 8 August 2000, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), due to disability with severance pay.  He served 8 years, 9 months, and 24 days of active service and he was paid $32,211.00 in severance pay benefits.

9.  The medical records provided by the applicant indicate he was being seen by community mental health services from May to July 2000 for PTSD.

10.  The VA Rating Decision provided by the applicant shows he was granted a 30% disability rating for PTSD on 6 September 2002 to be effective 9 August 2000.  He was awarded additional disability compensation for residuals of frostbite to both feet, Achilles tendinitis in both feet, lumbar pain strain, left shoulder strain, and cervical spine strain.

11.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30% disabling.

12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

13.  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.

14.  There is a difference between the VA and the Army disability systems.  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 or her 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.

15.  The VA determines the effective date of an approved entitlement based on the date a claim was received or, if filed within 1 year of separation from the military, entitlement will be from the day following separation from the military.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests that the applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  The applicant was found unfit for duty and he was assigned a disability rating of 10% for his unfitting conditions as they existed at the time of his PEB hearing.   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.

3.  The applicant was given profile limitations in December 1999 due to knee pain.  In March 2000, his commander stated he was unable to perform his duties as a combat medic due to his knee problems.  There is no indication that PTSD or any other condition other than his knee pain rendered him unable to perform his duties.  Only the unfitting conditions and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

4.  The applicant has not provided sufficient evidence to show that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.

5.  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.  Accordingly, there is an insufficient basis for granting the applicant's requested relief.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20100020547



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ABCMR Record of Proceedings (cont)                                         AR20100020547



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