IN THE CASE OF:

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100023553


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 his discharge by reason of physical disability with severance pay be changed to retirement by reason of physical disability.

2.  The applicant states he was discharged by reason of physical disability with severance pay because of post-traumatic stress disorder (PTSD) with a rating of 20 percent.  The Department of Veterans Affairs (VA) rates him at 100-percent disabled and, by law, the Army should have retired him with at least a 50-percent disability rating.

3.  The applicant provides:

* a VA Form 21-4138 (Statement in Support of Claim)
* voluminous medical records
* his DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) with addendum
* only the last page of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings)

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 (RA) with prior service in the Army National Guard (ARNG), including active service of 5 months and 10 days.  He served on active duty in the RA from 17 May 1989 through 22 June 1994.

3.  The applicant's MEB shows he was referred to a PEB with the following diagnoses:

* myofascial low back pain without spasm or neurologic deficit
* physiologic scoliosis
* spina bifida oculta
* major depression manifested by dysphoric mood, suicidal ideation, irritability, psychomotor agitation, decreased sleep and appetite, and decreased energy

4.  The applicant did not provide a complete DA Form 199.  All that is known is he concurred with the results of his informal PEB on 13 May 199X [the final digit is missing].

5.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 22 June 1994 by reason of physical disability with severance pay.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

	a.  Paragraph 3-5 contains guidance on rating disabilities and states that 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.

	b.  Chapter 4 contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

7.  Title 38, U.S. Code, sections 1110 and 1131, 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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

8.  The VA Schedule for Rating 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.

9.  The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that in making a determination of a member's 


disability rating, the Military Department shall utilize the VASRD to the extent feasible.

10.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three boards for correction of military records will apply the VASRD, section 4.129, to PTSD-unfitting conditions for Soldiers 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 or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to  the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the Soldier was discharged on or after            11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to be medically retired for PTSD.

2.  The 2008 NDAA, section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating, the Military Department shall utilize the VASRD to the extent feasible, the application of which will be applied in all cases in which the Soldier was discharged on or after 11 September 2001.

3.  The applicant was discharged in 1994; the provisions of the 2008 NDAA do not apply to his situation.

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 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)                                         AR20100023553



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ABCMR Record of Proceedings (cont)                                         AR20100023553



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