IN THE CASE OF:
BOARD DATE: 21 May 2013
DOCKET NUMBER: AR20120017121
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 his record to show he was retired for disability based on his diagnosis of post-traumatic stress disorder (PTSD).
2. He states he was diagnosed with PTSD by the Army, and immediately following his discharge the Department of Veterans Affairs (VA) gave him a 30 percent (%) disability rating.
3. He provides:
* letter from the VA
* VA Rating Decision
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 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. On 16 March 2000, the applicant enlisted in the Regular Army. After completing initial entry training, he was awarded military occupational specialty 92G (Food Service Operations). Effective 1 July 2004, he was promoted to sergeant/E-5.
3. His record shows he served in:
* Afghanistan from 24 March 2004 to 23 March 2005
* Iraq from 31 July 2006 to 14 October 2007
4. He provides service medical records showing he was seen by a mental health officer on a near-weekly basis from December 2006 through September 2007. These records indicate he had been diagnosed with PTSD.
5. His service medical records include a Standard Form 600 (Chronological Record of Medical Care), dated 28 March 2008, showing a diagnosis of chronic PTSD.
6. His record includes three Noncommissioned Officer Evaluation Reports covering 12-month rating periods ending June 2005, June 2006, and June 2007. The forms show his raters rated his overall potential for promotion and/or service in positions of greater responsibility as "among the best" for the first period and "fully capable" for the two later periods.
7. On 1 April 2008, he was honorably discharged by reason of completion of required active service.
8. He provides a VA Rating Decision, dated 30 October 2008. The Rating Decision shows the VA awarded him a service-connected disability rating of 30% for PTSD with anxiety, insomnia and depression. The rating was effective 2 April 2008.
9. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.
a. The regulation states the mere presence of an 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 his or her office, grade, rank, or rating against medical retention qualification standards established in Army Regulation 40-501 (Standards of Medical Fitness).
b. Soldiers must be referred to the PDES. If a treating physician believes a Soldier is unable to perform full military duty or is unlikely to be able to do so within a reasonable period of time normally 12 months the Soldier is referred to a medical evaluation board (MEB) at the medical treatment facility where treatment is being provided. The MEB is an informal process comprised of at least two physicians who compile, assess, and evaluate the medical history of a Soldier and determine if the Soldier meets or will meet retention standards. If the Soldier meets retention standards, the Soldier is returned to duty in his/her current military occupational specialty. If the Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB) for further disposition and determination of fitness.
c. To be permanently retired for physical disability, a Soldier's disabling condition must have been incurred or aggravated while entitled to basic pay and the condition must be rated as 30% disabling or more.
10. Title 38, U.S. Code, sections 1110 and 1131, 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 empowered 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. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record does not support the applicant's request for correction of his record to show he was retired for disability based on his diagnosis of PTSD.
2. The available records indicate the applicant was diagnosed with PTSD at some point during his active duty service. The available records also show that, in the year prior to his discharge, he had regular contact with a mental health officer. There is no evidence showing a mental health officer or other medical officer found he was unable to perform full military duty due to PTSD or any other diagnosis.
3. His record also contains Noncommissioned Officer Evaluation Reports showing he was fully capable of performing his duties in the years preceding his discharge.
4. The fact that the VA granted him a service-connected disability rating effective the day after his discharge for a condition that was diagnosed while he was on active duty is not evidence of error on the part of the Army.
a. The VA 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.
b. The Army refers Soldiers to the PDES and awards disability ratings on the basis of whether or not a Soldier is fit to perform his duties. In this case, the record shows the applicant was fit to perform his duties, which he did until he was discharged upon completion of his required active service.
5. In view of the foregoing, there is no basis for granting 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) AR20120017121
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120017121
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