IN THE CASE OF:	  

		BOARD DATE:  17 April 2012

		DOCKET NUMBER:  AR20110016515 


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 her records to show she was medically retired instead of honorably discharged with entitlement to severance pay.

2.  The applicant states she was rated by the Army with a 20-percent disability rating; however, she never had the opportunity to fight the board’s decision.  She further states she was diagnosed with Post-Traumatic Stress Disorder (PTSD), bi-polar, and manic depression and feels the board did not take this into consideration.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 2 SF (Standard Form(s)) 600 (Chronological Record of Medical Care)
* SF 513 (Consultation Sheet)
* Emergency Care and Treatment form
* Medical Record – Supplemental Data form
* Consultation Report
* Adult Preventative and Chronic Care Flow Sheet

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 14 September 1995.  She completed training and was awarded military occupational specialty 91W (Health Care Specialist).  The highest rank/grade she attained while serving on active duty was sergeant (SGT)/E-5. 

3.  Evidence shows on 24 October 2005, a medical evaluation board (MEB) convened at Fort Leonard Wood, MO, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of epilepsy and a bulging disk at L4-5 and L5-S1 with chronic low back pain and scroillitis.  

4.  The MEB found the applicant met the retention standards for:

* Tinnitus
* Gastroesophageal reflux disease
* Hyperlipidemia
* Severe pes planus with planar fasciitis
* Allergic rhinitis
* Colonic diverticulitis
* Atopic dermatitis
* Obesity
* Atypical depressive disorder

The MEB recommended her referral to a physical evaluation board (PEB).  She agreed with the MEB's findings and recommendation and indicated she did not desire to continue on active duty.

5.  On 4 November 2005, a PEB convened at Fort Lewis, WA.  The PEB found the applicant's condition prevented her from performing the duties required of her grade and specialty and determined that she was physically unfit due to epilepsy and chronic low back pain.  She was rated under the Veterans Affairs Schedule for Rating Disabilities (VASRD), assigned codes 8910, 5299, and 5237, and granted a combined 20-percent disability rating.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.

6.  On 21 November 2005, the applicant submitted a rebuttal to the PEB proceedings indicating she did not concur with the findings and recommendations.  She provided additional information to the board in the form of a personal statement with supporting documentation and she was informed her entire case, including rebuttal, was being forwarded to the U.S. Army Physical Disability Agency (USAPDA) for further review.

7.  On 30 November 2005, the applicant was notified by the USAPDA that they had reviewed her entire case and concluded her case was properly adjudicated by the PEB.  The USAPDA further stated the PEB correctly applied the rules that govern the PDES in making their determination which was supported by substantial evidence and therefore affirmed.

8.  On 13 January 2006, she was honorably discharged by reason of disability with entitlement to severance pay under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The DD Form 214 she was issued shows she completed 10 years and 4 months of active service.  This form also shows she received $49,932.00 in severance pay.

9.  The applicant provided:

   a.  SF 600, dated 9 October 2003, which shows the applicant was seen by medical personnel for being emotionally upset.  The form also shows she was diagnosed as manic depressive and she was prescribed Celexa.
   
   b.  an Emergency Care and Treatment form which shows on 12 February 2004, she was transported by ambulance to Fort Leonard Wood for a possible overdose.  Once stabilized, the applicant was referred to the psychiatric ward for inpatient hospitalization with a diagnosis of an overdose, mood disorder NOS (Not of Significance), and PTSD.

   c.  a Consultation Sheet, dated 12 February 2004 which shows a provisional diagnosis of a mood disorder NOS.

   d.  a Consultation Report, dated 17 June 2004, which states she was seen in the clinic due to a history of two recent seizures.  The report also shows the applicant’s past medical history consisted of mood disorder, PTSD, and depression.
   
   e.  an SF 600, dated 24 March 2005, which shows she was seen by medical personnel for epilepsy generalized convulsive grand mal and was prescribed phenytoin.
10.  Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating.  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.  

11.  Army Regulation 40-501 (Standards of Medical Fitness) 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.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

13.  Title 10, U.S. Code, 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 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her records should be corrected to show she was medically retired instead of being discharged due to physical disability with severance pay.

2.  The evidence of record confirms the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.  

3.  The MEB noted the applicant had other conditions.  However, those conditions met retention standards and were not necessarily unfitting.  In any case, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  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 their office, grade, rank, or rating.

4.  The record shows the PEB determined the applicant was unfit for further service and granted her a 20 percent disability rating.  The applicant did not concur with the PEB findings, submitted a rebuttal, and had her case reviewed by the USAPDA.  The USAPDA concluded her case was properly adjudicated by the PEB and had correctly applied the rules that govern the PDES in making their determination.  This contradicts the applicant contention that she never had an opportunity to fight the board’s decision.    

5.  The applicant’s complete service medical records were not available for review in this case; however, contrary to her contention that she was diagnosed as bi-polar with PTSD and manic depression, the available evidence of record shows she was found to have an atypical depressive disorder.  

6.  The existing evidence of record and the independent evidence provided by the applicant fail to provide sufficient evidence of a compelling nature which would support a conclusion of error or injustice related to her MEB/PEB processing.  The regulatory burden of proof to show error or injustice related to this process rests with the applicant, not with the members of the Board.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case.

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)                                         AR20110016515



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ABCMR Record of Proceedings (cont)                                         AR20110016515



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