IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110005592 


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, in effect, correction of her military records to show she was retired due to permanent physical disability.

2.  The applicant states she should have been placed on the temporary disability retired list (TDRL) with a 30 percent (%) or more disability rating percentage and then re-evaluated and placed on the Retired List due to permanent physical disability.  She should not have been reduced to 10% disability on her final
re-evaluation for post traumatic stress disorder (PTSD).

	a.  She further states she was discharged from the military due to PTSD and she was given a 10% severance package.  The Department of Veterans Affairs (VA) immediately rated her at 30% disabled.  She also had other medical issues that were not addressed by the military that she just recently understood with the help of the Texas Veterans commission.

	b.  She applied to the Physical Disability Board of Review (PDBR) but she was informed that she did not meet the criteria because she was discharged on 
10 September 2001, just 24 hours prior to the start of the reassessment period.  She contends that she earned and deserves this retirement and that it should go back to 10 September 2001.

	c.  She further contends that she deserves a retirement because:

* She was raped, traumatized, and mentally handicapped


* Her diagnosed condition warrants at least a 30-50% medical retirement
* A person cannot have a 10% (Army rating) disability and be rated with a 30% disability (VA rating) overnight
* Her marriage to a man she truly loved ended in divorce due to the rape
* Her military career ended abruptly to the PTSD
* A person who has been sexually assaulted would never be able to understand these types of circumstances at the time of discharge due to their mental condition
* She has been unable to remain gainfully employed

3.  The applicant provides:

* A DD Form 294 (Application for a Review by the PDBR), dated
14 January 2011
* A letter response from the Air Force Review Boards Agency, dated
3 February 2011
* A letter from the Texas Veterans Commission, dated 14 January 2011
* VA Rating Decisions, dated 7 December 2001, 12 August 2009, and
28 May 2010
* Her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 September 2001
* A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 15 March 2001 and 19 July 2001

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 26 January 2000 in the rank/grade of sergeant (SGT)/E-5.  She completed her initial training and was awarded military occupational specialty 92Y (Unit Supply Specialist).  At the time she had more than 11 years of prior active service.


3.  On 15 March 2001, a PEB convened to consider the applicant's medical condition.

	a.  The applicant was diagnosed with Veteran's Affairs Schedule for Rating Disabilities (VASRD) Code 9411 for PTSD requiring both psychotropic medication and psychotherapy, with symptoms of such degree to interfere with both occupational and social functioning.

	b.  The applicant's condition was not sufficiently stable for determining a final adjudication.

	c.  The PEB found the applicant physically unfit and recommended a combined disability rating of 30%.  She was to be placed on the TDRL and
re-examined during October 2002.  She non-concurred and requested a formal PEB.

4.  On 19 July 2001, a formal PEB convened to consider the applicant's medical condition.

	a.  The applicant was diagnosed with PTSD under VASRD Code 9411 requiring psychotropic medication with adequate social functioning.  She was rated with a mild impairment of social and occupational adaptability.

	b.  The PEB found the applicant physically unfit and recommended a combined disability rating of 10%.

	c.  The applicant indicated her concurrence with the PEB finding and recommendation.

5.  On 10 September 2001, the applicant was discharged due to physical disability and awarded severance pay.  She had completed 12 years, 9 months, and 1 day of creditable active service.

6.  On 11 September 2001, the applicant filed a disability claim with the VA.  Based on her service medical records for the period from December 1981 through 7 August 2001, the VA rendered a 50% combined evaluation rating decision on 7 December 2001, awarding her the following for service-connected medical conditions, effective 11 September 2001:

* PTSD – 30%
* Over-active bladder – 20%
* Hypertension – 10%


* Left shoulder impingement syndrome – 0%
* Gastroesophageal reflux disorder – 0%
* Left retropatella pain syndrome – 0%
* Right retropatella pain syndrome – 0%
* Right plantar fascitis – 0%

7.  On 2 October 2008, the applicant filed a claim with the VA for a re-evaluation of her medical conditions.  The VA made the following rating decision adjustments:

* PTSD – 30% - no change
* Over-active bladder – 40% from 11 September 2001; 60% from 2 October 2008
* Transient visual dysfunction associated with hypertension – 60% from
2 October 2008
* Left shoulder impingement syndrome – 10% from 11 September 2001
* Right retropatella pain syndrome – 10% from 11 September 2001
* Left retropatella pain syndrome – 10% from 11 September 2001
* Right plantar fascitis – 10% from 11 September 2001
* Hypertension – 10% from 11 September 2001
* Gastroesophageal reflux disorder – 10% from 11 September 2001
* Lacunar stroke associated with hypertension – 100% from 4 November 2008; and 10% from 1 May 2009

8.  In processing this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official stated:

	a.  A medical evaluation board (MEB) narrative summary was completed on
5 March 2001 wherein the applicant indicated that her main problem was anxiety and depression resulting from a sexual assault.  Her treating psychiatrist indicated that she was experiencing a definite degree of industrial impairment equating to a 30% rating.  The applicant also noted on her Report of Medical History problems with her knees, shoulder, foot, and bladder.  These areas of complaint were noted by her examining physician.  Her bladder and knee complaints did not result in any abnormal findings.  Her foot and shoulder pain were noted to be abnormal, but, were not unfitting conditions.  There was no evidence from the command indicating that any of her physical problems had caused her to be unable to perform her duties.  Her physical profile listed her psychiatric condition as the only condition that required any duty limitations.  The applicant concurred with the MEB and narrative summary on 8 March 2001.


	b.  On 15 March 2001, an informal PEB found the applicant unfit due to PTSD and awarded her 30% with placement on the TDRL.  The applicant nonconcurred and waived a formal hearing.  The applicant requested that the PEB lower her disability rating from 30% so she could receive severance pay.  The PEB indicated that she had to be rated in accordance with the evidence in the case file and at that time it supported a 30% rating.

	c.  A subsequent review of the case by the USAPDA found that the facts of the case did not support a finding of unfitness and requested the PEB reconsider the case.  The PEB decided that a formal hearing was required to consider all of the evidence and to hear personally from the applicant.  The applicant's treating psychiatrist indicated that the applicant's condition had improved and she was progressing very well in her treatment.  At that time her condition was being effectively controlled with medications.  On 19 July 2001, based on the new industrial capacity information, testimony from the applicant, and reconsideration of all performance evidence, a formal PEB found that the applicant was still unfit due to PTSD, but was now ratable at 10% because her condition was being controlled by medications.  The applicant concurred with the formal PEB's findings and filed no appeals or rebuttals.  The applicant was separated with severance pay on 10 September 2001.

	d.  The military disability system is a performance based system.  Just because a Soldier has a diagnosed condition or complaint of pain does not automatically result in a finding of unfit or award of disability compensation.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability and only conditions found unfit are compensable.  Notwithstanding the complaints of an overactive bladder, and knee, shoulder and foot pain, the evidence available indicates that none of these conditions significantly affected the applicant's ability to perform her assigned daily tasks nor required profile limitations of duty.  Even if such conditions had been considered by the MEB, they would not have been found unfit for duty by a PEB.  The fact that the VA subsequently decided to compensate the applicant for these other conditions is not evidence of any error by the MEB or PEB.  The VA compensates all physical conditions that they find to be service-connected notwithstanding their lack of any affect on the individual's ability to perform their military tasks.

	e.  Although the PEB properly rated the applicant at 10% and recommended separation with severance pay, subsequent rulings by the Department of Defense (DOD) have held that individuals who were separated with PTSD should have been placed on the TDRL at 50% in accordance with VASRD 4.129 and re-


examined in 6 months to determine if they had stabilized.  Had this been done in the applicant's case, the subsequent VA findings of December 2001 showing she was then ratable at 30% for her PTSD would have supported a removal from the TDRL and permanent disability retirement at 30%.  Accordingly, to correct an injustice, the advisory official recommends correction of the applicant's military records to reflect that on 10 September 2001, the applicant was placed on the TDRL and rated at 50% disabled; and that on 10 March 2002, 6 months from placement on the TDRL, she was removed from the TDRL and permanently retired due to PTSD at 30%.

9.  On 17 June 2011, a copy of the advisory opinion forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected to show she retired due to permanent physical disability.

2.  The available evidence shows the applicant was found unfit due to PTSD and discharged with a 10% disability rating with severance pay.

3.  Based upon the latest review of the facts of the case by the USAPDA, it determined that had the subsequent rulings by the DOD been followed, the applicant would have been placed on the TDRL at 50% in accordance with VASRD 4.129 and re-examined in 6 months to determine if her condition had stabilized.  Had this been done in the applicant's case, the subsequent VA findings of December 2001 showing she was then ratable at 30% for PTSD would have supported a removal from the TDRL and placement on the Retired List at 30% due to permanent physical disability.

4.  Notwithstanding the advisory opinion, the fact is that the applicant was separated on 10 September 2001, a day prior to the change in policy authorizing an increase in the disability rating for PTSD.  She was properly separated on 
10 September 2001 with severance pay for her unfitting medical condition.

5.  In view of the above, the applicant's request should be denied.






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)                                         AR20110005592



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ABCMR Record of Proceedings (cont)                                         AR20110005592



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