IN THE CASE OF:	  

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120019355 


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 amendment of his discharge by reason of disability with severance pay, combat related (enhanced), to show retirement by reason of permanent physical disability.

2.  The applicant states he was suffering from post-traumatic stress disorder (PTSD) and his condition was severe enough to bring about his discharge but was never included in the evaluation.  He states that it was part of the Department of Veterans Affairs (VA)/Department of Defense joint disability evaluation but was not considered disqualifying even with the 30-percent rating from the VA.  Additionally, the board never considered the left lower extremity radiculopathy which was secondary to the lumbar spine degenerative disc disease which was one of the conditions he was discharged for.

3.  The applicant provides over 600 pages of medical treatment records and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 November 2006 for a period of 5 years and training as a military policeman.  He completed one-station unit training and was transferred to Fort Polk, Louisiana, for his first and only assignment.  He deployed to Iraq during the period 1 August 2007 to 14 October 2008 and returned to Fort Polk.

2.  The applicant has not provided and the available records do not contain his medical and physical evaluation board proceedings.   However, the medical treatment records he provides indicate he was evaluated/treated for musculoskeletal injuries and mental health concerns (page 598) while he was assigned to the Warrior Transition Unit.

3.  On 20 May 2010, he was honorably discharged due to disability with severance pay, combat related (enhanced), under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He completed 3 years, 6 months, and 19 days of active service.  He was awarded a 20-percent disability rating and $25,128.00 in severance pay.

4.  The medical records provided by the applicant, dated 27 December 2011 (page 154), show he was granted a combined service-connected disability rating of 90 percent for:

* sleep apnea – 50 percent
* PTSD – 50 percent
* paralysis of sciatic nerve – 40 percent
* paralysis of sciatic nerve – 20 percent
* degenerative arthritis of the spine – 10 percent
* limited motion of the arm – 10 percent
* tinnitus – 10 percent
* hypertensive vascular disease – 10 percent

5.  Army Regulation 40-501 (Standards of Medical Fitness) states for both mood disorders (depression/depressive disorder is listed as a mood disorder by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and anxiety disorders (the DSM-IV lists PTSD as an anxiety disorder), the causes for referral to a medical evaluation board are as follows:

	a.  persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, or

	b.  persistence or recurrence of symptoms necessitating limitations of duty in a protected environment, or

	c.  persistence or recurrence of symptoms resulting in interference with effective military performance.

6.  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 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.  

7.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

8.  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.  An award of a VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individual's employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s medical and physical evaluation board proceedings are not available.  However, in the absence of evidence to the contrary it must be presumed that the applicant was properly diagnosed and discharged in accordance with the applicable laws and regulations with no indication of any violations of any of his rights and that he was properly assigned a narrative reason for separation and disability rating based on his unfitting conditions at the time of evaluation and discharge.

2.  The applicant failed to show through the evidence submitted with his application and the evidence of record that he was not properly diagnosed at the time or that his discharge was not conducted in accordance with the applicable laws and regulations in effect.

3.  While the applicant contends that he should have been medically retired by reason of permanent physical disability due to PTSD, there appears to be no evidence to show this condition was such as to render him unfit for service at the time.

4.  The Board is not an investigative body and the burden of proving an error or injustice exists is the responsibility of the applicant.  The applicant has not provided sufficient proof to establish such.  Accordingly, there appears to be no basis to grant the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ______________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)                                         AR20120019355



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ABCMR Record of Proceedings (cont)                                         AR20120019355



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