IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110008564 


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 issuance of invitational travel orders to appear before a medical evaluation board (MEB) to determine if his diagnosed Post-Traumatic Stress Disorder (PTSD) met retention standards on the date of his separation and if not, an informal physical evaluation board (PEB) evaluate him for a determination of fitness and percentage of disability.  He also requests that if he is retired by reason of physical disability that it be made retroactive to 26 September 2007 with entitlement to all back pay and allowances.

2.  The applicant states, in effect, that he was being treated for PTSD prior to his separation and neither the MEB nor PEB considered PTSD during their deliberations and he received no disability compensation for PTSD.  However, the Department of Veterans Affairs (VA) granted him a 30 percent (%) disability rating percentage for PTSD and subsequently raised it to 50%.

3.  The applicant provides:

* his MEB and PEB board proceedings
* multiple Standard Forms (SF) 600 (Chronological Record of Medical Care)
* a DD Form 2796 (Post-Deployment Health Assessment)
* his VA Rating Decision

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be afforded an opportunity to have his disabilities properly evaluated by the appropriate medical boards and if it is determined that he was unfit for service and he should have been retired by reason of permanent disability, that the applicant should be retired effective
26 September 2007 with entitlement to all back pay and allowances.

2.  Counsel states that this is a case of abject injustice as the applicant is a combat veteran who suffered from PTSD and lumbar degenerative disc disease; however, neither the MEB nor the PEB considered PTSD in its deliberations and the applicant was told that it was too late because a psychiatric addendum was not prepared.  Accordingly, he was not evaluated for PTSD.

3.  Counsel provides a four-page brief explaining his contentions that are tabbed A through N.

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 3 October 1995 for a period of 3 years and training as an armor crewman.  He completed his one-station unit training at Fort Knox, KY and he was reassigned to Germany for his first assignment.  He remained on active duty through a series of continuous reenlistments, served two tours in Iraq, was awarded the Combat Action Badge, and he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 
1 February 2006.

3.  On 26 March 2007, an MEB convened at Darnall Army Medical Center, Fort Hood, TX and determined that the applicant did not meet retention standards because of back pain and herniated intervertebral disc.  The MEB recommended the applicant's referral to a PEB.  On 6 April 2007, the applicant concurred with the findings and recommendation of the MEB.

4.  On 11 April 2007, a PEB convened at Fort Sam Houston, TX and determined that his disability (L5-S1 protrusion with mild nerve root impingement, without neurologic deficit, range of motion limited by pain, positive tenderness) made him physically unfit and recommended his separation with severance pay and a 10% disability rating.  The PEB noted that the recommendation only applied if the applicant’s request for continuance on active duty was denied.

5.  On 2 May 2007, the applicant was advised of the findings and recommendation of the PEB and of his legal rights.  On the same day, he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

6.  On 26 September 2007, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability with severance pay.  He had served 11 years, 11 months, and 24 days of active service.

7.  A review of the medical documents provided by the applicant shows that his primary complaint was always lower back pain.  On 20 February 2007, in preparation for his medical board, a DD Form 2697 was prepared by a physician’s assistant who indicates the applicant stated that he was having family/marriage issues and anger management issues for which he was attending sessions two times a month.  He also indicated that he was seeking disability from the VA for PTSD.

8.  A review of his DA Forms 2166-8 (NCO (Noncommissioned Officer) Evaluation Reports (NCOERS)) shows no indication of any downturn in the applicant’s performance nor is there any indication in his official records that he exhibited any downturn in performance or potential.  Overall, he had an excellent record of performance and service.

9.  The VA rating decisions provided by the applicant with his application indicates he applied to the VA in November 2009.  As a result, he was granted a 30% disability rating for PTSD and a 10% disability rating for evaluation of herniated nucleus pulposus L5 - S1.  On 29 July 2010, his disability for PTSD was increased to 50%.  He was also granted a 10% disability rating for migraine headaches effective 20 November 2009.  He also filed a claim for Traumatic Brain Injury (TBI), which the VA denied.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30% disabling.

11.  Army Regulation 635-40 states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  That regulation also provides the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings.  

12.  Title 38, U.S. Code, sections 310 and 331, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

13.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests that the applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  The applicant was found unfit for duty and he was assigned a combined disability rating of 10% for his unfitting conditions as they existed at the time of his formal PEB hearing.  There is no evidence to show that PTSD rendered him unfit to perform his duties.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.

4.  The fact that the VA, in its discretion, awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department of the Army.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110008564



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ABCMR Record of Proceedings (cont)                                         AR20110008564



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