IN THE CASE OF:	  

		BOARD DATE:	    6 March 2012

		DOCKET NUMBER:  AR20110018135 


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 disability separation with severance pay be corrected to show disability retirement.  

2.  The applicant states he received a 50 percent (%) disability rating for Post Traumatic Stress Disorder (PTSD) from the Department of Veterans Affairs (VA) and this condition was not addressed during his Physical Disability Evaluation System (PDES) processing.  

3.  The applicant provides a VA rating decision and Physical Evaluation Board (PEB) proceedings in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army on 30 April 1997 and he was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  On 1 August 2003, he was promoted to the rank of staff sergeant/E-6 and this was the highest rank he attained while serving on active duty.  

2.  On 29 January 2010, a PEB convened at Fort Sam Houston, Texas to evaluate the applicant’s case.  The PEB found the applicant was unfit for further service based on the disqualifying condition of “Status post multi-level fusion July 2008 for cervical intervertebral disc syndrome since 2003” and assigned a disability rating of 20% under Veterans Affairs Schedule of Rating Disabilities (VASRD) code 5241.  
3.  The PEB also considered the applicant's low back pain/degenerative disc disease, fractures of the right foot, right knee pain, bilateral ankle pain, heartburn, and bilateral shoulder pain identified by a Medical Evaluation Board (MEB) which it found were not unfitting either independently or in combination with any other conditions.  PTSD was not identified as an MEB identified condition the applicant suffered from at the time and it was not a part of the PEB evaluation.  The PEB finally recommended that the applicant be separated by reason of disability with severance pay.  

4.  On 9 February 2010, the applicant concurred with the findings and recommendations of the PEB and waived a former PEB hearing.  On 
18 February 2010, the PEB proceedings were approved by proper authority on behalf of the Secretary of the Army.  

5.  On 19 May 2010, the applicant was honorably discharged by reason of physical disability with severance pay.  

6.  The applicant provides a VA rating decision, dated 13 June 2011, which granted him service connection for PTSD with a 50% disability rating.  

7.  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/her office, grade, rank, or rating.  It stipulates that 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.

8.  Paragraph 3-1 of the same regulation outlines the standards of unfitness because of physical disability.  It states 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.  It further states to ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an 
MEB.  The major objective of these standards is to achieve uniform disposition of cases arising under the law. 



9.  The disability regulation further states these retention standards and guidelines should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation from the Army.  The fact that the Soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for Soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness.  The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered.  The effect will be considered both from the standpoint of how the disabilities affect the Soldier's performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments.

10.  Paragraph 3-5 of the disability regulation contains guidance on rating disabilities.  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.  The percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Under the provisions of Title 10, U.S. Code, chapter 61, these ratings are assigned from the VASRD. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change his disability discharge with severance pay to disability retirement has been carefully considered.  However, there is insufficient evidence to support this request. 

2.  The evidence of record confirms the applicant was properly processed through the PDES and provided a disability rating based on the unfitting condition identified by the PEB.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The evidence shows the PEB considered and evaluated the other medical conditions identified by the MEB and found these conditions were not unfitting for further service and as a result they were not ratable.  PTSD was not identified by either the MEB or PEB.



4.  The evidence of record further shows the applicant concurred with the findings and recommendation of the PEB and waived a formal hearing on 
9 February 2010.  This concurrence with the PEB shows the applicant did not believe an evaluation of PTSD was necessary or appropriate at the time he was undergoing PDES processing.  Absent any evidence of record or independent evidence that shows an error or injustice related to the applicant’s processing through the Army’s PDES process there is an insufficient evidentiary basis to support correcting or amending the determinations made by the PEB.

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)                                         AR20110018135



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ABCMR Record of Proceedings (cont)                                         AR20110018135



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