IN THE CASE OF:	  

		BOARD DATE:  6 November 2012

		DOCKET NUMBER:  AR20120009003 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be reviewed and that his records be reevaluated for a medical retirement. 

2.  The applicant states, in effect, that he believes the medical evidence that he provided will show an error was made in his records.

3.  The applicant provides his DD Form 214, Department of Veterans Affairs (VA) rating decision, and 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.  Having had prior service, on 23 January 1997, the applicant enlisted in the Regular Army and held military occupational specialty 14S (Avenger Crewmember).  He served in Germany from 3 January 1990 to 2 February 1992. 

3.  On 26 May 1999, he was admitted to the hospital after he complained that he was confused and thought someone would kill him.  He was admitted to Landstuhl Regional Medical Center, Germany and then to Eisenhower Army Medical Center, Fort Gordon, GA.  

4.  He related experiencing paranoid delusions that people were trying to kill him and stated that he needed to watch his back but would not identify specific individuals.  He had a history of mania and obsessive-compulsive disorder.  He denied any suicidal or homicidal ideation and denied auditory or visual hallucination.

	a.  He was diagnosed with schizophrenia paranoid type as evidenced by auditory hallucinations, persecutory delusions of paranoia, thought blocking and thought broadcasting.  It appeared his condition existed prior to service.  

	b.  The military physician determined he was medically unfit according to Army Regulation 40-501 (Standards of Medical Fitness) and recommended entering him into the physical disability evaluation system (PDES).  

5.  On 27 September 1999, a medical evaluation board (MEB) convened at Fort Gordon, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant as having the medically-unacceptable condition of schizophrenia paranoid type as evidenced by auditory hallucinations, persecutory delusions of paranoia, thought blocking, and thought broadcasting.  It was also determined that his condition was not in line of duty and had existed prior to service.  The MEB recommended referral to a physical evaluation board (PEB).  He was counseled and indicated he did not agree with the MEB's findings and recommendation but indicated he did not desire to continue on active duty.

6.  On 22 October 1999, he submitted a statement indicating he had been diagnosed correctly but he did not have the condition prior to serving in the military and that he was treated in Germany in 1996.  In effect, he was given a shot but he did not know what type of medication he received.  He requested his case be forwarded to a PEB for consideration.  He also requested that he be found fit for duty.  He indicated he was taking medication and following-up on his treatment.  

7.  On 29 October 1999, the PEB President ordered a discontinuation of the applicant's disability processing and stated that a line of duty determination was required.

8.  On 5 December 2000, an official at the U.S. Army Human Resources Command (HRC) notified the applicant's commander that after thorough administrative, legal reviews, and a medical opinion by the Office of The Surgeon General (OTSG) of his line of duty investigation, dated 18 May 1999 and appeal dated 2 June 2000, the line of duty was approved.  The findings were changed from "NOT IN LINE OF DUTY DUE TO OWN MISCONDUCT to IN LINE OF DUTY."

9.  A review of his records by the OTSG determined his psychotic episode with an onset of May 1999 and continued psychotic illness through the end of June 1999 did not meet medical retention standards.  There was insufficient evidence to overcome the presumption that the applicant's paranoid schizophrenia was incurred while on active duty.  Although the "shot" reportedly given the applicant in 1996 could have been for a psychotic episode, there was insufficient evidence to support it.  Additionally, the MEB failed to document any symptoms of schizophrenia between the "shot" in 1996 and the beginning of psychotic "decompensation" in May 1999.  It must therefore be presumed that the applicant was able to provide for his wife and kids and serve his country without significant decrement in social and/or occupational functions.

10.  On 4 January 2000, his PEB processing was administratively terminated because his case exceeded the allotted time of 60 days.

11.  On 20 June 2000, he was issued a permanent physical profile for brief reactive psychosis.  His profile restricted any assignments where outpatient psychiatric follow-up care was not available. 

12.  On 27 December 2000, he complained of intense fear that someone was trying to kill him while attending the Primary Leadership Development Course.  He began to feel confused and experienced anxiety and fear.  He also began to have paranoid thoughts that someone was out to kill him.  He was subsequently admitted for hospitalization.  

	a.  He was diagnosed with brief reactive psychosis secondary to sleep deprivation manifested by auditory hallucination, paranoia, persecutory delusions, thought blocking, and thought broadcasting.  His condition was determined to be in line of duty. 

	b.  The military physician determined he was medically unfit according to Army Regulation 40-501 and the recommendation was that he be entered into the PDES.  

13.  On 12 January 2001, an MEB convened at Fort Gordon, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of brief reactive psychosis secondary to sleep deprivation manifested by auditory hallucination, paranoia, persecutory delusions, thought blocking, and thought broadcasting.  The MEB recommended referral to a PEB.  He was counseled and agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

14.  On 19 January 2001, an informal PEB convened at Fort Sam Houston, TX. The PEB found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to brief reactive psychosis secondary to sleep deprivation manifested by auditory hallucination, paranoia, persecutory delusions, thought blocking, and thought broadcasting.  The PEB noted that:

* his condition was in full remission; it did not meet the criteria to be considered a definite impairment of social and industrial adaptability 
* he was considered unfit because his physical profile restricted him from carrying a rifle 

15.  He was rated under the VA Schedule for Rating Disabilities (VASRD) codes 9299 and 9210 and granted a zero-percent (0%) disability rating.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  He elected not to concur and demanded a formal hearing of his case with a personal appearance and representation by counsel, on 30 January 2001. 

16.  Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  His counseling culminated on 31 January 2001 when he submitted a statement wherein he stated "after consideration of my case, I now wish to accept the informal findings and desire to withdraw my request for a formal hearing at this time."  
17.  On 1 February 2001, after reviewing his case and statement of election, an official at the U.S. Army Physical Disability Agency approved the PEB's findings and recommendation on behalf of the Secretary of the Army.  

18.  On 24 March 2001, the applicant was honorably discharged under the provisions of chapter 4, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability with entitlement to severance pay.  The DD Form 214 he was issued shows he completed 4 years, 2 months, and 2 days of active service and he received severance pay in the amount of $23,142.00.

19.  He submitted his service medical records that were reviewed by the MEB and the PEB in reaching their diagnosis, findings, and recommendation.  He also submitted his VA rating decision, dated 14 August 2002, awarding him service-connected disability compensation at the rate of 50% for chronic paranoid schizophrenia.  

20.  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.  

21.  Army Regulation 40-501 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% to 100%, rising in increments of 10%.

22.  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.

23.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military 

service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition.  Over a period of many years, a veteran’s disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition.  It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.  In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 

24.  VASRD Codes 9299/9210 applies to brief reactive psychosis (psychotic disorder, not otherwise specified (atypical psychosis)).  When a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, a rating of 0% is assigned. 

25.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained an illness that warranted entry into the PDES.  He underwent an MEB which recommended referral to a PEB.  The PEB found his medical condition prevented him from reasonably performing the duties required of his grade and military specialty.  He was determined to be physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay with a 0% disability rating.  The applicant agreed with the findings and recommendations and waived his right to a formal hearing.

2.  The applicant did not specify what error existed in his disability processing.  It is unknown if he is contesting the rating assigned by the PEB or if he claims he had other conditions that were not considered during his medical processing.  It appears, however, he bases his contention on the fact that the VA awarded him disability compensation for his condition at a higher rate than that assigned by the PEB. 

3.  The PEB is tasked to assess the degree of disability at the time of discharge.  Here, the PEB did so and rated his condition 0% disabling.  The PEB determined his condition was in full remission and that although his condition did not meet the criteria to be considered a definite impairment of social or industrial adaptability; however, he was considered unfit because his physical profile restricted him from carrying a rifle.

4.  It was his restrictive profile that led to the PEB to find his condition prevented reasonable performance of the duties required by his grade and military specialty.  A higher rating would have required occupational and social impairments due to mild or transient symptoms with decreased work efficiency (10%), occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (30%), or occupational and social impairment with reduced reliability and productivity due to other symptoms.  This is not the case here.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30%, by law he was only entitled to severance pay.

5.  An award of a different rating by another agency does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and their own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

6.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.

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)                                         AR20120009003



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ABCMR Record of Proceedings (cont)                                         AR20120009003



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