IN THE CASE OF:	  

		BOARD DATE:	  2 July 2013

		DOCKET NUMBER:  AR20120019937 


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 that his permanent retirement by reason of physical disability be voided and that he either be returned to active duty or be discharged with severance pay.

2.  The applicant states, in effect, that he did not agree with the decision of the Physical Evaluation Board (PEB) that he should be permanently retired; however, he was discharged without his permission due to a lack of communication with the Physical Evaluation Board Liaison Officer (PEBLO).  He was told he had 90 days to respond; however, he was retired after 10 days.  He also states that he did not agree with the diagnosis of the doctor on the Temporary Disability Retired List (TDRL) that he was unfit for service.  He desires to re-enter active duty to serve his country or be given severance pay and a total departure from the military so he can get on with his life.  He also requests to be heard before the Board.

3.  The applicant provides a two-page letter explaining his application, TDRL proceedings and rebuttal, DD Form 214 (Certificate of Release or Discharge from Active Duty), Enlisted Record Brief, a third-party letter of recommendation, and copies of emails.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 November 2005 for a period of 3 years and 18 weeks and training as an infantryman.  He completed his one-station unit training (OSUT) at Fort Benning, Georgia and was transferred to Fort Bliss, Texas for his first and only duty assignment in June 2006.

2.  The applicant deployed to Kuwait/Iraq with his unit during the period 20061101 – 20071213 and then returned to Fort Bliss.  

3.  On 10 October 2008, a PEB convened at Walter Reed Army Medical Center to evaluate the applicant’s conditions of Post-Traumatic Stress Disorder (PTSD) which resulted from his deployment to Iraq.  The PEB found him unfit for further duty in his military occupational specialty due to the risk of decompensation in a high-stress operational environment.  The PEB recommended that he be placed on the TDRL with a 50 percent (%) disability rating.  The applicant agreed with the findings and recommendation of the PEB.

4.  Accordingly, he was honorably retired on 20 October 2008 and was transferred to the TDRL with a 50% disability rating.  He had served 2 years, 10 months, and 28 days of active service.

5.  On 17 May 2010, he applied to the U.S. Army Human Resources Command for Combat-Related Service Connection (CRSC) and was granted a 50% disability rating for PTSD and 10% for Tinnitus for a combined 60% CRSC disability rating. 

6.  The applicant was originally scheduled for a TDRL evaluation in October 2011 and had to be rescheduled because of the applicant’s inability to be present.  The evaluation was rescheduled to 14 December 2011 at Brooke Army Medical Center in San Antonio, Texas.  The evaluating clinical psychologist noted that since retirement the applicant had two hospitalizations for detoxification in Colorado and Massachusetts, VA appointments for medications, and that he had declined case management and outpatient services.  The psychologist recommended that he be re-assessed for fitness for duty within 1 year.

7.  The PEB convened at Fort Sam Houston on 22 February 2012 and after evaluating all available evidence determined that due to the nature of the applicant’s rated condition (PTSD), it was a permanent condition that would not change so as to affect the Soldier’s rating.  The PEB recommended that he be permanently retired with a 30% disability rating.

8.  On 23 January 2012, the PEBLO at Fort Stewart, Georgia forwarded the results of the PEB to the applicant and advised him that he had 10 days in which to respond with a concurrence or non-concurrence.

9.  The applicant did not respond within the prescribed time period, and on         13 March 2012 he was removed from the TDRL and permanently retired on      14 March 2012 with a 30% disability rating.

10.  On 30 August 2012, the applicant returned the results of the PEB and non-concurred with the findings and recommendations.  He submitted a rebuttal letter where he asserted that he should be returned to active duty or be given a severance pay package that totally severed his ties to the Army.  He stated that he did not agree with the evaluating official regarding his return to active duty.

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

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) states disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

13.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the Army Board for Correction of Military Records (ABCMR).  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  Based upon the facts in this case and the evidence provided it was determined that no formal hearing was required.)

2.  The applicant’s contentions and supporting documents have been noted.

3.  The evidence submitted and the evidence of record is insufficient to show that the applicant was fit for duty and should be restored to active duty.

4.  The applicant was evaluated by licensed health care officials and has not submitted any evidence to dispute their evaluations or to substantiate his claim that he was fit for duty.  Therefore, in the absence of medical evidence to the contrary, it appears that he was properly retired in accordance with the applicable laws and regulations with no indication of any violations of the applicant’s rights. 

5.  It was the applicant’s responsibility to keep the PEBLO informed of his whereabouts during the entire period he was on the TDRL, and his failure to do so apparently resulted in his inability to respond to the PEB results.  However, that does not constitute an error or injustice on the part of the Department. 

6.  The applicant was retired by reason of permanent disability because the applicable laws require retirement when a disability rating is determined to be   30% or more.  Therefore, he is not entitled to separation with severance pay.

7.  Accordingly, there appears to be no basis to grant the applicant’s request for return to active duty or to be discharged with severance pay. 

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 that 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 that this action in no way diminishes the sacrifices made by the applicant 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)                                         AR20120019937





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ABCMR Record of Proceedings (cont)                                         AR20120019937



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