IN THE CASE OF:	   

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20120003426 


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 records to show assignment of an initial and final highest disability rating applicable and not less than 50 percent for unfitting Post-Traumatic Stress Disorder (PTSD) retroactive to the active duty release date.

2.  The applicant states Chapter 61 of Title 10 United States Code requires that disability ratings by the Secretary of the pertinent military departments be based on the Department of Veterans Affairs Schedule for Ratings Disabilities (VASRD).  At the time the applicant was medically separated the VASRD provided that when a mental disorder develops in service as a result of a highly stressful event and is severe enough to bring about a veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent for PTSD and the Physical Evaluation Board’s failure to do so violated the applicant's legal right.

3.  The applicant refers to the settlement agreement in SABO versus the United States in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  On 26 March 2006, a Physical Evaluation Board (PEB) convened and determined that the applicant was physically unfit and recommended a combined rating of 10 percent for PTSD.  The PEB further recommended the applicant be separated with severance pay.

2.  On 31 July 2006, the applicant was separated by reason of physical disability with severance pay.

3.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

   a.  Paragraph 3–9 provides guidance for the TDRL.  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

   b.  Paragraph 4-17 provides guidance for  PEBs.  Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendation may be revised.

4.  The Department of Veterans Affairs Schedule for Ratings Disabilities (VASRD), section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

5.  The 2008 NDAA, section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the Department of Veterans Affairs.



6.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three BCMRs will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of six months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.  It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions.  Therefore, as a matter of equity and policy, provisions of DoD or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and determined to have partial merit.

2.  The 2008 NDAA provided that the VASRD must be utilized during the medical evaluation of military personnel.  Subsequent DoD guidelines and general equitable principles extend this requirement to all Soldiers medically discharged since 11 September 2001.  The applicant's PTSD diagnosis warrants amendment of the PEB findings based on the application of the unmodified VASRD.

3.  The applicant should be retroactively placed on the TDRL for a minimum of six months at no less than 50 percent disability rating for PTSD effective the date initially medically separated with severance pay.

4. Based on available applicable evidence, the PDA should reevaluate the applicant's medical conditions without regard to any DoD or Army regulations or guidelines that were inconsistent with the VASRD in effect at the time of the original adjudication to determine the appropriate final disability rating.

5.  The applicant's request to be placed on the Permanent Disability Retired List (PDRL) based on the 2008 National Defense Authorization Act (NDAA) was also carefully considered.  Based on the foregoing, it is premature to grant this portion of the applicant's request.  After the PDA completes the reevaluation, the applicant may be entitled to this relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  retroactively placing the individual on the TDRL for a minimum of six months at no less than 50 percent disability rating for PTSD effective the date initially separated with severance pay; and

	b.  the PDA reevaluating the applicant's medical conditions based on all available applicable evidence without regard to any DoD or Army regulations or guidelines that were inconsistent with the VASRD in effect at the time of the original adjudication  to determine the appropriate final disability rating.

2.  The Defense Finance and Accounting Service (DFAS) should audit the applicant's pay account and ensure appropriate payment as a result of the above corrections.  If the applicant's total compensation would be made less favorable as a result of DFAS implementation of the corrections, the case should be returned to the ABCMR for possible supplemental action.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends deferral of so much of the application that pertains to a final disability rating.



      _______ _   _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)                                         AR20120003426



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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