IN THE CASE OF:

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100022702


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, through his Member of Congress, correction of his Physical Evaluation Board (PEB) Proceedings to include Post Traumatic Stress Disorder (PTSD) as an unfitting condition, for the purpose of qualifying for Combat Related Special Compensation (CRSC).

2.  The applicant states, in effect, the Army excluded evidence about PTSD that resulted from a chest injury he sustained in an M109 howitzer [155 millimeter self-propelled artillery weapon system] accident, which is the main point of consideration in this case.  

3.  The applicant provides:

* a summary letter from the clinical director of New Beginningz, Inc., dated
14 June 2010
* a Diagnostic Assessment from New Beginningz, Inc., dated 10 June 2010
* various privacy release forms
* various Department of Veterans Affairs (VA) letters to the applicant
* various letters from U.S. Army Human Resources Command (HRC), addressed to Members of Congress and/or the applicant 
* e-mail correspondence between a Congressional staff employee and the applicant
* various documents pertaining to his medical board proceedings and subsequent placement on the Temporary Disability Retired List (TDRL)
* 
his DD Form 214 (Report of Separation from Active Duty)
* a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance)

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 7 August 1978.  He completed training and he was awarded military occupational specialty 13B (Cannon Crewmember).

3.  On 21 November 1978, he presented himself to the Troop Medical Clinic at Sheridan Kaserne in Germany for chest pain resulting from an M109 howitzer accident while in Advanced Individual Training at Fort Sill, OK.  His Standard Form (SF) 600 (Chronological Record of Medical Care) states he was hit in the chest with part of the gun.  Subsequent physical examinations related to this incident showed his chest wall was symmetrical and he was returned to duty.   

4.  On 17 January 1979, he was hospitalized at the U.S. Army Hospital in Augsburg, Germany.  On 8 February 1979, he was transferred to the Dwight David Eisenhower Army Medical Center (DDEAMC), Fort Gordon, GA, with a transfer diagnosis of depressive reaction, rule out borderline personality.

5.  On 27 February 1979, he underwent a physical examination for the purpose of evaluation by a Medical Evaluation Board (MEB).  Item 42 (Psychiatric (specify any personality deviation)) of his Standard Form (SF) 88 (Report of Medical Examination) reflects "Abnormal" and contains the statement, "#42 - Acute schizophrenic episode, severe."  Item 74 (Summary of Defects and Diagnoses) 

contains the statement, "Item #42 - Acute schizophrenic episode, severe."  This medical document makes no mention of a previous chest injury nor does it indicate he suffered from PTSD.  

6.  On 5 March 1979, an MEB convened at Fort Gordon and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant suffered from:

* acute schizophrenic episode, severe; improved; manifested by flattened effect, poor judgment and insight, loose associations, referential thinking, thought broadcasting, and visual and auditory hallucinations 
* precipitating stress, mild, routine military duty
* predisposition, none identified
* marked impairment for further military duty
* definite impairment for social and industrial adaptability

7.  Neither his DA Form 3947 (Medical Board Proceedings), nor the accompanying evaluation notes contained on 6 pages of an SF 502 (Clinical Record - Narrative Summary), mention a previous chest injury resulting from a howitzer accident nor do they indicate he suffered from PTSD.  

8.  During the processing of his MEB, he indicated he did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The MEB referred his case to a PEB.  On 14 August 2006, he was informed of, and agreed with, the approved findings and recommendation of the board.

9.  On 1 May 1979, an informal PEB convened at Fort Gordon to consider his case.  The PEB determined he was unfit for continued military service by reason of schizophrenia.  As a result, it recommended a combined 30 percent (%) disability rating percentage and placement on the TDRL with reexamination in November 1980.  The DA Form 199 (PEB Proceedings) indicated that the Veteran's Administration Schedule for Rating Disabilities (VASRD) code applicable to his medical condition was 9205 (schizophrenia, acute, with definite impairment of social and industrial adaptability), rated at 30%.  His PEB proceedings do not mention a previous chest injury or PTSD.  On 2 May 1979, he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.


10.  On 8 June 1979, he was retired from active duty because of physical disability and placed on the TDRL effective 9 June 1979.  His DD Form 214 shows he was honorably retired, under the provisions of Army Regulation
635-40, paragraph 4-19e(2), by reason of temporary disability and placement on the TDRL under Title 10, U.S. Code, section 1202 or 1205.  He had completed 10 months and 2 days of total active service during his period of enlistment.

11.  His VA Rating Decision is unavailable for review; however, in an undated letter, the VA states his service-connected nervous condition was rated at 100%.

12.  On 22 January 1981, a TDRL PEB convened at Fort Gordon and found his condition did not improve to the extent that he was considered fit for duty.  The PEB proceedings indicated that the VASRD code applicable to the applicant’s medical condition was 9203 (schizophrenia, paranoid (change of diagnostic code), considerable impairment of social and industrial adaptability), rated at 50%.  Accordingly, the PEB recommended his permanent retirement.  His TDRL PEB proceedings make no mention of a previous chest injury or PTSD.  On
28 January 1981, he again concurred with the TDRL PEB's findings and recommendation and waived a formal hearing of his case.

13.  On 28 February 1981, he was removed from the TDRL and permanently retired, effective 1 March 1981.

14.  He provides a summary letter and a diagnostic assessment from the clinical director of New Beginningz, Inc, wherein she [the clinical director] states:

* he [the applicant] was seen, on 10 June 2010, in relation to mental health issues, which concluded from an incident while on active duty in 1979
* his present symptoms are consistent with PTSD and Major Depressive Disorder, Recurrent, Moderate
* his diagnosis is the result of being exposed to a traumatic event that involved an actual threat of death or serious injury
* he suffers from deficits in short and long term memory and neurological deficits
* it is her professional recommendation that he be examined by a neurologist to diagnose or rule out Traumatic Brain Injury

15.  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.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

16.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his PEB proceedings to include PTSD as an unfitting condition for the purpose of qualifying for CRSC was carefully considered but was determined to be without merit.  

2.  The applicant was considered by an MEB in March 1979.  He agreed with the findings and recommendation of the MEB.  There is no evidence which confirms he was diagnosed with or was unable to perform his duties due to PTSD at the time of his MEB.

3.  The applicant was considered by a PEB in May 1979, which found him unfit for military service by reason of acute schizophrenia at a 30% combined disability rating.  As a result, he was placed on the TDRL under the provisions of Army Regulation 635-40, paragraph 4-19e(2), by reason of temporary disability.  He concurred with the findings and recommendation and he waived his right to a formal PEB hearing.

4.  The applicant was considered by a TDRL PEB in January 1981, which found him unfit for military service by reason of paranoid schizophrenia at a 50% combined disability rating.  As a result, he was removed from the TDRL and permanently retired.  He again concurred with the findings and recommendations and he waived his right to a formal PEB hearing.

5.  Although it appears the applicant was granted service-connection (100%) for his illness, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  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.

6.  The evidence of record does not indicate the applicant’s disability processing was in error or unjust or that his medical conditions were improperly evaluated by the PEB.  There is no evidence at this time that links his psychosis to any military training or event; therefore, there is no basis for granting the applicant's request.

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)                                         AR20100007330



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ABCMR Record of Proceedings (cont)                                         AR20100022702



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