IN THE CASE OF:	  

		BOARD DATE:  15 May 2012

		DOCKET NUMBER:  AR20110019165 


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 a medical discharge/medical retirement.

2.  The applicant states:

* she should have received a medical retirement based on 30 percent service-connected disability awarded by the Department of Veterans Affairs (VA)
* she was a civilian contractor in Afghanistan and was not notified of this action until she had returned to the States and had seen what her ex-husband had placed in storage
* her application should be considered because she was out of the country and unable to concur or non-concur with these proceedings
* she has been asked to provide a DD Form 214 (Certificate of Release or Discharge from Active Duty) dated after April 2005, but she does not have one
* the DD Form 214 she received is the same one she received when she was placed on the TDRL in 2005

3.  She provides: 

* Standard Form 502 (Medical Record - Narrative Summary Clinical Resume) 6 pages
* 2006 Physical Evaluation Board (PEB) Proceedings
* Removal from Temporary Disability Retired List (TRDL) letter and orders
* VA Rating Decision
* Email correspondence from Military Pay
* Letter from the Army Review Boards Agency

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’s military record shows she enlisted in the Regular Army on 2 January 1997.  She completed training and was awarded military occupational specialty 25F (Network Switching System Operator).  She served in Uzbekistan from 23 November 2001 through 10 September 2002 and in Iraq from 14 February 2003 through 11 July 2003.

3.  SF 502 shows she was diagnosed with bipolar II Disorder in 2003.  It was recommended she be referred to the Medical Evaluation Board (MEB) System for further adjudication of her condition in accordance with Army Regulation
40-501 (Standards of Medical Fitness), section 3-21.  It was noted that at the time she had been followed for approximately 18 months and she had stabilized; however, she was unfit for further military duty due to her condition.

4.  On 13 January 2005, an MEB convened and considered the applicant's condition of bipolar II disorder with a date of origin of 2004.  The MEB recommended she be referred to a PEB.  The board noted the applicant did desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings and recommendations of the MEB were approved on 13 January 2005 and the applicant agreed with the findings and recommendations of the MEB on the same day.

5.  On 26 January 2005, an informal PEB convened and considered the applicant's disabilities of bipolar II disorder.  The PEB reviewed all available medical records and determined that the applicant's history indicated periodic mood alterations, both dysthymia and hypomania of brief durations for many years, first seeking treatment in 2002.  The PEB found the applicant physically unfit and rated her disability at 30 percent, but noted that a permanent evaluation was not yet possible.  The PEB recommended she be placed on the TDRL.  

6.  On 31 January 2005, the applicant concurred with the PEB and waived her right to a formal hearing.

7.  She was honorably retired in pay grade E-6 on 14 April 2005, by reason of temporary disability, and placed on the TDRL.  She was credited with completion of 8 years, 3 months, and 13 days of active service and no time lost.

8.  On 2 June 2006, a TDRL PEB convened and considered her medical condition of bipolar II disorder.  The PEB found that her condition had not improved to the extent that she was fit for duty.  Her condition was considered to have stabilized at a degree of severity that allowed adjudication.  The PEB recommended she be separated, rated at zero percent, with entitlement to severance pay if otherwise qualified.

9.  In a memorandum, dated 22 June 2006, a PEBLO (PEB Liaison Officer), stated that she had telephonically contacted the applicant to counsel her on the findings/recommendations of the PEB, left messages on 20 and 22 June 2006, and has had no response to date.

10.  On 22 June 2006, a copy of the PEB Proceedings was forwarded to the applicant by Federal Express, but she did not respond.  In accordance with Army Regulation 635-40, paragraph 4-20e, the applicant was considered to have waived her right of election.

11.  Orders D181-05 were issued by the USAPDA on 29 June 2006, removing the applicant from the TDRL effective 29 June 2006, with a zero percent disability rating and entitlement to severance pay.

12.  A VA Rating Decision shows on 21 August 2008, the VA awarded her 30 percent service-connection for bipolar disorder (also claimed as hypomania and major depression).

13.  The VA Rating Decision stated:

	a.  An evaluation of 30 percent was granted whenever there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairments, and mild memory loss (such as forgetting names, direction, and recent events).

14.  In a letter, dated 24 October 2011, the ARBA advised the applicant that she had the option of applying to either the ABCMR or the Physical Disability Board of Review (PDRB).  

15.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U. S. Code, Chapter 61 and Department of Defense Directive 1332.18. It 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.  The regulation states:

   a.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3. 
   
   b.  PEBs 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 recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.
   
	c.  If a Solider fails or declines to make an election within the prescribed time the PEB will contact the PEBLO to confirm the status of the Soldier's election.  When the PEBLO confirms the Soldier has been informed of the findings and recommendation, but has not made an election, the PEB will proceed as if the Soldier has accepted the findings and recommendation.  The proceedings will be forwarded to the USAHRC for final disposition.

	d.  If a Soldier non-concurs with the PEB with a statement of rebuttal and demand a formal hearing, the PEB may reconsider their findings and recommendations.  A Soldier may waive, in writing, his/her appears at a formal hearing and may be represented by counsel.


	e.  The Army Disability Rating Review Board may amend a fully executed retirement order of a Soldier if the original orders was based on fraud or mistake of law, the Soldier was not granted a full and fair hearing when the Soldier had made timely demand for such a hearing, or substantial new evidence would have warranted a higher percentage of disability.  

16.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  The DVA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

17.  Title 10, U.S. Code, section 1212(c), states the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the DVA.  Thus, DVA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the Regular Army on 2 January 1997.  She served in Uzbekistan from 23 November 2001 through 10 September 2002 and in Iraq from 14 February 2003 through 11 July 2003.  In 2003, she was diagnosed with Bipolar II Disorder and referred to the PDES for further adjudication of her condition in accordance with Army Regulation 40-501, chapter 3.

2.  On 13 January 2005, an MEB determined that she failed to meet retention standards of Army Regulation 40-501 for bipolar II disorder and referred her to a PEB for further evaluation.  She concurred.  On 26 January 2005, a PEB found the applicant unfit, rated at 30 percent, and determined that since her condition was not stable, placed her on the TDRL.  She concurred with the findings and recommendations of the PEB and waived her right to a formal hearing.  She was retired from active duty on 14 April 2005 and placed on the TDRL.

3.  On 2 June 2006, A TDRL PEB found that her condition had not improved to the extent that she was fit for duty.  The PEB found that her condition had established to a degree of severity that allowed adjudication and recommended she be separated, rated at zero percent, with entitlement to severance pay.

4.  A PEBLO officer stated that she had telephonically contacted the applicant to counsel her on the findings/recommendations of the PEB, left messages, and the applicant did not respond.  The proceedings were forwarded to the applicant by Federal Express, but she did not respond.  Her case was then finalized in accordance with Army Regulation 635-40, paragraph 4-20e, and orders were issued removing her from the TDRL effective 29 June 2006, with a zero percent disability rating and entitlement to severance pay.

5.  Her contentions were carefully considered and found not sufficient in merit.  There is no evidence of an error or injustice in her physical evaluation process for her condition or in the MEB/PEB's findings.  There is also no evidence she was precluded from offering any relevant material evidence in her case and she provides insufficient evidence to show her condition was not properly considered or rated.  Her contentions and the documents that she submitted do not demonstrate error or injustice in her MEB/PEB processing nor error or injustice in the disposition of her case.

6.  She has failed to show with the evidence submitted and with the evidence of record that she should have received a higher disability rating and retirement due to permanent physical disability.

7.  She has failed to provide a reasonably just cause for failure to concur or non-concur with her PEB processing.  Without evidence to the contrary, it appears her removal from the TDRL was accomplished in compliance with applicable regulations in effect at the time, with no procedural errors, which would have jeopardized her rights.  

8.  The VA rating decision provided by her was also carefully considered.  However, the award of a DVA rating does not establish entitlement to a medical discharge and/or medical retirement.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, she was evaluated and is being compensated for her service-connected medical condition by the VA.  In addition, any disability severance pay awarded by the Army to a Soldier would be deducted from any VA compensation awarded to her.  



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)                                         AR20110019165





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ABCMR Record of Proceedings (cont)                                         AR20110019165



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