IN THE CASE OF:	  

		BOARD DATE:	    9 June 2011

		DOCKET NUMBER:  AR20100026258 


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 correction of his records to show he was medically retired instead of honorably discharged due to disability with severance pay.  He also requests that he be provided all monies owed as a result of this correction.

2.  The applicant states:

* His medical discharge and diagnosis of an adjustment disorder should be changed to a medical retirement due to post traumatic stress disorder (PTSD)
* He was diagnosed with PTSD when he was examined at the Department of Veterans Affairs (VA) while on transition leave 
* He was not examined by a doctor of psychology at the Robinson Mental Health Clinic; he was seen by a mental health counselor
* His adjustment disorder was determined not to be service-connected
* The Department of Defense mandates that a military service member who is diagnosed with PTSD prior to discharge will be medically retired

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Medical Evaluation Board (MEB) Proceedings
* Physical Evaluation Board (PEB) Proceedings
* VA rating decision


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.  Having had prior service, the applicant enlisted in the Regular Army on 11 November 2001 and he held military occupational specialty 11B (Infantryman).  He served in Iraq from 14 February to 8 November 2003.  

3.  On 8 April 2004, he was seen at Womack Army Medical Center (WAMC), Fort Bragg, NC for right knee pain due to an injury sustained to his right knee on 26 October 2003 in a motor vehicle accident in Iraq.  He was diagnosed with right knee medial femoral condyle chondral injury and chondromalacia medial plateau and lateral plateau.  The attending physician determined he did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and recommended that he be entered into the Physical Disability Evaluation System (PDES).

4.  On 13 August 2004, an MEB convened at WAMC, Fort Bragg, NC, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant had the medically-unacceptable condition of right knee medial femoral condyle chondral injury and chondromalacia medial plateau and lateral plateau.  The MEB also found he had a hiatal hernia with chronic gastritis, and an adjustment disorder with anxiety, neither of which were found to be disqualifying.  The MEB recommended he be referred to a PEB.  The applicant agreed with the MEB's findings and recommendation and indicated he desired not to continue on active duty.

5.  On 14 September 2004, an informal PEB convened at Washington, DC, and found the applicant's condition of right knee medial femoral condyle chondral injury and chondromalacia medial plateau and lateral plateau prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to limited ranges of motion.  He was rated under the VA Schedule for Rating Disabilities (VASRD) and was granted a 0% disability rating for codes 5099 and 5003.  The PEB also:

	a.  considered his hiatal hernia with chronic gastritis and an adjustment disorder with anxiety and determined they were not disqualifying; therefore, not ratable.

	b.  recommended that the applicant be separated with severance pay if otherwise qualified.  

6.  On 20 September 2004, he indicated he concurred with the PEB's findings and recommendations and waived his right to a formal hearing of his case.  

7.  On 30 November 2004, he was honorably discharged by reason of disability, severance pay.  

8.  The applicant provides a VA rating decision, dated 3 July 2006, that shows he was granted a 30% disability rating for PTSD from 1 December 2004.  His adjustment disorder with anxiety was found not to be service-connected and not subject to compensation.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  

10.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.

11.  Title 10, U.S. Code (USC), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating less than 30%.

12.  Title 38, USC, sections 1110 and 1131, permit 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment, or the VA may award a rating for a condition the Army did not find unfitting.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he sustained a medical condition subsequent to his service in Iraq.  He underwent an MEB that referred him to a PEB.  The PEB recommended that he be discharged due to disability with a 0% disability rating and severance pay if otherwise qualified.  He concurred with the findings of both the MEB and PEB.  On 22 September 2004, the U.S. Army Physical Disability Agency approved the PEB's findings and recommendations on behalf of the Secretary of the Army.

2.  There is no evidence that any condition other than his knee condition rendered him unfit to perform his duties.

3.  He now believes he should have been diagnosed with PTSD instead of an adjustment disorder while on active duty and he should have received a medical retirement for PTSD.  He is basing this on the VA's diagnosis of PTSD.  However, a subsequent diagnosis and award of a disability rating by another agency does not establish error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) that affects the individual's civilian employability.  

4.  In addition, the VA considered his condition of an adjustment disorder with anxiety and determined it was not service-connected and not subject to compensation.
5.  In view of the foregoing evidence, he is not entitled to the requested relief.

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)                                         AR20100026258



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ABCMR Record of Proceedings (cont)                                         AR20100026258



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