BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110003767 


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 military disability records be corrected to reflect combat-related post-traumatic stress disorder (PTSD).

2.  The applicant states he was not tested for PTSD prior to being placed on the Temporary Disability Retired List (TDRL).

3.  The applicant provides a Department of Veterans Affairs (VA) Compensation and Pension Examination Initial Evaluation for PTSD, dated 29 October 2008.

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 prior service in the Regular Army, the applicant enlisted in the Georgia Army National Guard (ARNG) for a period of 2 years on 15 January 1988.  He subsequently executed an extension and transferred to the Texas ARNG (TXARNG).  The applicant executed multiple extensions, held military occupational specialties 45D (self-propelled field artillery turret mechanic) and 63D (artillery mechanic), and was promoted to staff sergeant (SSG)/E-6 on 11 June 2002.

3.  On 2 March 2002, the applicant was ordered to active duty in support of Operation Noble Eagle from 4 March 2002 to 30 July 2002.  On 30 July 2002, the applicant was honorably released from active duty to the control of the TXARNG due to completion of required active service.

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was ordered to active duty on 15 August 2004 and served in Kuwait/Iraq from 4 January 2004 to 1 May 2005 in support of Operation Iraqi Freedom.

5.  The applicant's record contains Orders A-06-512807, U.S. Army Human Resources Command, dated 6 June 2005, which assigned him to Walter Reed Army Medical Center for a period of 179 days for voluntary participation in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.

6.  On 30 April 2006, he was honorably discharged from the ARNG and assigned to the Retired Reserve by reason of temporary disability and placed on the TDRL in the rank/grade of SSG/E-6.

7.  On at least four occasions from October 2006 through November 2009, the applicant was placed on orders for a periodic physical examination.  On 21 April 2010, a TDRL physical evaluation board (PEB) convened at Fort Lewis, WA, and found the applicant's condition had not improved to the extent that he was fit for duty.  However, although some change in his medical condition may have been anticipated for the purpose of adjudicating his disability compensation, his medical conditions were considered to have stabilized to a degree of severity that was equal to or greater than 30 percent upon reevaluation.  He was rated under the VA Schedule for Rating Disabilities (VASRD) and awarded a 60-percent disability rating for code 7502 (nephritic syndrome due to membranous nephropathy).  The TDRL PEB also considered other reevaluation diagnoses but found them not ratable since they were not listed on the original medical evaluation board (MEB) as not meeting retention standards and appeared to be new conditions which were unrelated to any previously rated unfitting condition.  The PEB recommended placing the applicant on the Permanent Disability Retired List with a combined disability rating of 60 percent.

8.  On 23 April 2010, the applicant concurred with the PEB's findings and recommendations and waived his right to a formal hearing.

9.  On 27 April 2010, the U.S. Army Physical Disability Agency (USAPDA) published Order D-117-44 which directed the applicant's removal from the TDRL effective 27 April 2010 and placement on the Retired List with a 60 percent disability rating.

10.  The applicant provided a VA Compensation and Pension Examination Initial Evaluation for PTSD rendered on 29 October 2008.  The examining physician opined that the applicant met the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) stressor criteria for a diagnosis for chronic and moderate PTSD.

11.  In the processing of this case, an advisory opinion was obtained on 3 June 2011.  The USAPDA legal advisor recommended no change to the applicant's military records.

	a.  The applicant was placed on the TDRL in 2006 for nephritic syndrome.  A review of the applicant's case file and military records prior to his placement on the TDRL revealed no complaints relating to a psychiatric condition and no listing of any psychiatric condition.  Neither his physical profile, his MEB, nor his commander indicated he was experiencing any psychiatric symptoms at the time.  If he was, they were not reported and apparently were not evident enough to have affected his ability to perform his assigned duties.  The applicant concurred with all aspects of his physical disability process and waived his right to a formal hearing.

	b.  Only conditions that were listed and found to be unfitting by a PEB at the time of his placement on the TDRL are compensable by the military (see paragraph 3-1, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), and paragraph E2.1.7, Department of Defense Instruction (DODI) 1332.38).  The applicant appears to have complained of some psychiatric symptoms in October 2008, and has submitted these documents with his application for correction of military records as proof that he had unfitting PTSD in 2006.  These documents do not provide any proof that the applicant had a diagnosed condition of PTSD at the time of his placement on the TDRL that was materially affecting his ability to perform his assigned military tasks, rendering him unfit for duty in 2006.

12.  On 9 June 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not respond to the advisory opinion.

13.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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.  It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

14.  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.  DODI 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

15.  The VASRD, code 9411 (Mental Disorders), states that when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.

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 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.  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 contends his military disability records should be corrected to reflect combat-related PTSD.

2.  PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  In April 2010, a PEB found the applicant unfit for duty, rated him with a combined disability rating of 60 percent, and recommended permanent retirement.  The PEB did not find any psychiatric condition unfitting or compensable.  The applicant concurred with the PEB findings and in April 2010 he was permanently retired with a combined disability rating of 60 percent.

4.  The applicant now believes PTSD should have been included in his PEB due to the results of his VA Compensation and Pension Examination for PTSD conducted on 29 October 2008.  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.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

5.  The applicant's physical disability evaluation was conducted in accordance with the law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  The documents submitted by the applicant do not provide any proof that he had a diagnosed condition of PTSD at the time of his placement on the TDRL that was materially affecting his ability to perform his assigned military tasks which rendered him unfit for duty in 2006.









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)                                         AR20110003767



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003767



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1