IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110002684 


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 record to show he received a 
50-percent disability rating for combat-related post-traumatic stress disorder (PTSD).

2.  He states he was medically retired for non-combat related service-connected PTSD with a 30-percent disability rating, but PTSD medical retirements are required to be rated at least 50 percent.  Medical records from Walter Reed Army Medical Center (WRAMC) in 1992 and Madigan Army Hospital in 1995 show his PTSD is due to his tour of duty during the Gulf War in 1991.

3.  He provides:

* a self-authored statement
* correspondence from the U.S. Army Human Resources Command regarding his eligibility for the Combat-Related Special Compensation (CRSC) Program
* a copy of Department of Defense (DOD) supplemental guidance on CRSC
* a Department of Veterans Affairs (VA) Rating Decision
* notification of a VA determination of service connection for a nervous disorder with a supporting rating decision
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two pages from his DA Form 2-1 (Personnel Qualification Record)
* orders awarding him the Army Commendation Medal
* orders placing him on the Temporary Disability Retired List (TDRL)


* orders permanently retiring him
* a medical evaluation prepared for a physical evaluation board (PEB)
* a DA Form 199 (PEB Proceedings)
* several pages from his service medical records

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 30 September 1974.  On 29 September 1977, he was honorably released from active duty and transferred to the U.S. Army Reserve.  On 6 January 1981, he again enlisted in the Regular Army.

3.  Noncommissioned officer (NCO) evaluation reports in his record indicate a decline in his duty performance during the rating period ending June 1990.  For the rating period June 1988 to May 1989, he received a "fully capable" rating for overall potential for promotion and/or service in positions of greater responsibility.  For the rating period June 1989 to June 1990 and subsequent periods, he was rated as "marginal."

4.  His name is listed in the Operations Desert Shield/Desert Storm Database compiled by the Defense Manpower Data Center (DMDC).  The primary Operations Desert Shield/Desert Storm file contains one record for each active duty member who participated in theater between 2 August 1990 and 31 July 1991.  The database shows he was deployed with the 1st Armored Division from 1 January to 15 May 1991.

5.  A Standard Form 502 (Narrative Summary (Clinical Resume)) shows he was admitted to WRAMC on 16 November 1991.

	a.  This form documents a physical examination he underwent on 6 December 1991.  During his exam he stated he had felt depressed for the past 6 months and had been experiencing nightmares which would wake him up in the middle of the night.  He also reported hearing voices telling him to hurt people in his command and to hurt himself.  While he was in Kuwait in 1991, he was told a family friend was being investigated for allegations of having an affair with his wife.  He stated he believed the allegations were false.  He later found out his wife and a coworker had a fight and the coworker started the allegations to discredit his wife.  His wife subsequently lost her job at the NCO Club due to the allegations.  When he returned to Germany in May 1991, the allegations had been dropped, but his son had gotten into difficulties at school.  He reported he and his family felt they had been increasingly harassed and he had become severely depressed as a result of this harassment.  He was hospitalized for 1 week in October 1991 after attempting suicide.  Three days after his release he was readmitted for 2 weeks prior to being evacuated to WRAMC.

	b.  This form shows the examining physician found he appeared to be preoccupied with feelings or persecution of himself and his family, believed his commander was harassing him, and believed if he were in Germany he would have feelings to kill his commander or himself again.  The examining physician also noted he displayed symptoms consistent with PTSD.

	c.  He was diagnosed with single-episode major depression with non-melancholic type mood-congruent psychotic features and PTSD, not delayed onset.

6.  A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 14 February 1992, shows an MEB found he had:

* major depression, single episode, with mood-congruent psychotic features, non-melancholic type
* PTSD, not delayed onset

7.  The MEB noted his tour of duty in Saudi Arabia and difficulties at work.  The MEB indicated he had marked impairment for further military duty and considerable impairment for social and industrial adaptability.  The MEB referred his case to a PEB.  On 6 March 1992, he indicated he agreed with the MEB's findings and recommendation.

8.  A DA Form 199, dated 26 March 1992, shows a PEB found him unfit based on a diagnosis of major depression with psychotic features with PTSD.  The PEB recommended a combined disability rating of 30 percent and placement on the TDRL.  The PEB made the recommended finding that his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

9.  On 6 April 1992, he concurred with the PEB's findings and recommendations and waived a formal hearing of his case.

10.  On 11 May 1992, he was retired and placed on the TDRL.

11.  Orders D173-11, dated 11 September 1995, issued by the U.S. Total Army Personnel Command permanently retired him for physical disability.  The orders show:

* he was given a 30-percent disability rating
* his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104

12  His record shows he applied for CRSC on 5 July 2010.  On 29 October 2010 and 7 March 2011 in response to his application, the U.S. Army Human Resources Command CRSC Branch informed him he had provided no evidence showing a combat-related event had caused his PTSD.

13.  He provides a VA Rating Decision, dated 18 June 2010, showing his service-connected disability rating for PTSD was increased from 30 percent to 50 percent effective 15 May 2009.

14.  In a self-authored statement, he indicates he believes combat stressors caused his PTSD and major depression.  He states his unit was part of the sweep into Iraq during Operation Desert Storm's major ground battle.  He was traveling across the battlefield when the vehicle in front of his hit a land mine.  If that vehicle had missed the mine, his would have hit it.  The next day an Iraqi tank advanced on his vehicle firing a machine gun.  The rounds were getting closer when a friendly armored vehicle took out the tank.  He has nightmares and dreams of being blown up by land mines and attacked by tanks.  He returned to his home station feeling depressed and paranoid.  He thought those feelings would pass, but they became worse.  Within 5 months of his return from the Gulf War, he was hospitalized.  He now believes his PTSD is a "presumptive illness," which it wasn't when the Army MEB rated him.

15.  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.

16.  Chapter 4 of Army Regulation 635-40 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.  These findings and recommendations include a determination of whether or not the disability is combat-related as defined in U.S. Code.

17.  Rules for taxation of disability compensation are established in Title 26, U.S. Code, section 104.  This statute defines ''combat-related injury'' as personal injury or sickness which is incurred as a direct result of armed conflict while engaged in extra-hazardous service under conditions simulating war or which is caused by an instrumentality of war.

18.  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.

19.  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.

20.  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.

21.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense for 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 DOD 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 evidence of record does not support the applicant's request for correction of his record to show he received a 50-percent disability rating for PTSD and to show his PTSD is combat related.

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 placed on the TDRL in 1992 and permanently retired in 1995.  The provisions of the 2008 NDAA do not apply to his situation.

4.  A PEB found him unfit due to major depression with psychotic features with PTSD.  The available documentation shows he was experiencing family problems and duty performance problems that had undoubtedly placed him under a great deal of stress.  While it appears his tour of duty in a combat zone marked a turning point in his illness and contributed to that illness, it also appears the PEB correctly determined that combat service was not the defining contributory element to his disabling condition and properly determined his disability was not combat related.

5.  In addition to the above, other than his own statement, the available records do not show his unfitting condition was combat related.  In the absence of such documentation, it must be presumed the PEB correctly characterized his unfitting condition as non-combat related.

6.  In view of the foregoing, there is an insufficient basis upon which to grant the relief he requests.

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)                                         AR20110002684



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ABCMR Record of Proceedings (cont)                                         AR20110002684



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