IN THE CASE OF:	 

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120002654 


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, that Post Traumatic Stress Disorder (PTSD) be added to her unfitting condition and her disability rating be increased to at least 30 percent (%) (a medical retirement).   

2.  The applicant states:

	a.  she believes misconceptions about PTSD from sexual assault and the pressure to avoid medically retiring Soldiers was the reason she was found fit for duty.

	b.  she was not functioning as a Soldier in her job or as a Soldier.

	c.  she was medically separated for a back problem and given a rating of 10%.  She was found fit for duty for her PTSD symptoms.  She was raped multiple times by the Equal Employment Opportunity (EEO) noncommissioned officer (NCO) while serving in the Army.  The case went to trial and the EEO NCO was given time in prison, a reduction in rank, and a bad conduct discharge.  

   d.  being raped and revictimized through a court-martial was extremely traumatizing.  She did not trust anyone in the military and she suffered a great deal trying to complete her enlistment.  She was transferred to a new unit but was unable to adjust.  She was moved off-post and given a housing and food allowance but she continued to have significant problems at work.  

	e.  the fact they minimized these symptoms and found her fit for duty was an extreme injustice.  She left the military and continued to have difficulty functioning in everyday life.

	f.  it is evident from the psychiatric evaluation and Army Regulation (AR) 40-501 that the regulations were not followed in her case.  The military psychiatric evaluation stated impairment for military duty – moderate.  Impairment of social and industrial adaptability – moderate.  There is some mild to moderate impact on duty performance in terms of both concentration and her short-term memory.  The service member does meet retention criteria in accordance with chapter, AR 40-501.

	g.  according to AR 40-501, dated February 1998, paragraph 3-33 (Anxiety, somatoform, or dissociative disorders (neurotic disorders)) the causes for referral to an Medical Evaluation Board (MEB) are persistence or recurrence of symptoms… resulting in interference with effective military performance.    

3.  In a letter, dated 10 March 2012, the applicant also states she did not originally appeal the Physical Evaluation Board's (PEB) decision of finding her fit for PTSD for several reasons:

	a.  she was told Soldiers are rarely found unfit for duty due to mental health conditions.

	b.  they informed her the appeal process would take a year or two.  During this time she would be retained in the military.  Being in the military was exacerbating all her symptoms.  She felt as if her will for life was almost completely drained.  She was consumed by anger, rage, depression, powerlessness, fear, and hopelessness.  She had even been told by a military superior that he owned her.  This is not an environment which is conducive to a feeling of safety and wellbeing.  She wouldn't have been able to care for her mental health and go through the appeal.

	c.  it was made clear that only the Soldiers who meet the Department of Veterans Affairs (VA) rating criteria for 100% permanently and totally disabled at 100% would be rated at 30% and medically retired.  At this point there was no reason to appeal when this was the information being provided.  

	d.  being medically separated instead of retired has always felt like an injustice.   




4.  The applicant provides:

* MEB/PEB proceedings
* Psychiatric evaluations
* VA psychiatric evaluation and documentation
* Letters in support of claim
* Letters documenting symptoms while in the military
* Service medical records

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 1 October 1997 for a period of 4 years.  She completed her training and was awarded military occupational specialty 31U (signal support systems specialist).

3.  Medical records indicate in July/August 1999 she reported at least 6 sexual assaults by an NCO in her barracks. 

4.  On 21 June 2001, an MEB diagnosed the applicant with:

	a.  chronic mechanical lower back pain secondary to degenerative disk disease as well as mild disk bulge with lumbar radiculopathy.

	b.  Axis I: PTSD manifested by intrusive recollection of a traumatic event, social isolation, autonomic instability, and some cognitive difficulties as well.  Impairment for military duty - moderate.  Impairment for social and industrial adaptability - moderate. 

5.  A DA Form 3349 dated 22 June 2001 shows the applicant was given assignment limitations of walk, cycle, and swim at own pace and distances; no sit-ups; no repetitive jumping activities; no backpack; no marching; no lifting greater than 20 pounds; and may cycle in lieu of run of Army physical fitness test due to chronic low back pain.

6.  The MEB recommended referral to a PEB.  On 28 June 2001, the applicant did not agree with the board's findings and recommendation and submitted an appeal.  In response to her appeal, some edits were made to her MEB Narrative Summary and DA Form 3349 (Physical Profile).  On 6 July 2001, her appeal was considered and the original findings and recommendation were confirmed.  On 10 July 2001, she acknowledged the changes to her MEB in response to her appeal.  

7.  On 17 July 2001, a PEB found her physically unfit due to chronic mechanical lower back pain secondary to degenerative disc disease, with complaints of bilateral radiating pain in legs; however, neurological examination does not confirm radiculopathy.  Rated as lumbosacral strain with characteristic pain on motion.  The proceedings state:

	a.  her functional limitations in maintaining the appropriate level of mobility caused by the physical impairments recorded above make her medically unfit to perform the duties required of a Soldier of her rank and primary specialty.

	b.  condition listed as medical board diagnosis Axis I was considered by the PEB and found to be not unfitting and therefore not ratable.

8.  The PEB recommended a combined 10% disability rating percentage and separation from the service with severance pay.  On 23 July 2001, the applicant concurred with the findings and recommendations and waived a formal hearing.  

9.  On 23 July 2001, the U.S. Army Physical Disability Agency approved the PEB's findings.

10.  On 30 September 2001, she was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, for disability, severance pay.

11.  She provided two psychiatric evaluations, dated 28 June 2002 and 13 May 2004, from a psychiatric clinic in Spokane, WA, which show she was diagnosed with PTSD.  

12.  She provided a VA rating decision, dated 21 May 2003, which shows she was granted service connection for PTSD (70%).

13.  She also provided letters in support of her claim from her therapist, Battalion Chaplain, victim advocate, her father, and her ex-fiancé attesting to her symptoms of PTSD.    

14.  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 office, rank, grade, or rating because of disability incurred while entitled to basic pay.

15.  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%.  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 of less than 30%.

16.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that, after establishing the fact that a Soldier is unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of 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.  

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes misconceptions about PTSD from sexual assault and the pressure to avoid medically retiring Soldiers was the reason she was found fit for duty for her PTSD symptoms.  

2.  She requests that PTSD be added to her unfitting condition.  However, PTSD was considered by the PEB in 2001 and found to be not unfitting and not ratable.  There is no evidence to show she was ever given assignment limitations due to PTSD.   She concurred with the PEB findings and recommendation on 23 July 2001.  Therefore, there is insufficient evidence on which to add PTSD as an unfitting condition.  

3.  It is acknowledged the VA has granted her a 70% disability rating for PTSD.  However, an award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards 
ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

4.  Regrettably, there is insufficient evidence to show her disability was improperly rated by the PEB in 2001.  Therefore, there is no basis for granting the applicant's request to increase her disability rating.

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)                                         AR20120002654





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ABCMR Record of Proceedings (cont)                                         AR20120002654



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