IN THE CASE OF:	  

		BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20120020499 


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, in effect, voidance of his discharge and retirement by reason of permanent physical disability.
 
2.  The applicant states he was diagnosed while in the Army with post-traumatic stress disorder (PTSD) and other medical conditions and he was unable to perform his duties.  He goes on to state he was unjustly separated because of these disabilities without the benefit of a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB).  He should have been retired by reason of permanent physical disability due to the severity of his medical condition.

3.  The applicant provides copies of his personnel and medical records, a copy of his litigation papers, and a copy of his Department of Veterans Affairs (VA) Rating Decision.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be granted 50 percent of pay for a period of
6 months beginning on the date of his discharge; disability separation and pension after the foregoing 6 months in the amount of 50-70 percent, but no less than 30 percent; any other back pay and allowances authorized by law; reimbursement of all medical expenses incurred since his separation; and any other relief the Board deems appropriate.

2.  Counsel states, in effect, that the applicant was diagnosed with PTSD on three occasions while on active duty and the Army was required to process him through the Physical Disability Evaluation System (PDES) because he was unable to perform his duties.  He goes on to state the applicant was entitled to
6 months of pay at 50 percent based on his mental disorder and he is entitled to a disability pension of at least 30 percent.

3.  Counsel provides a five-page brief.

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.  The applicant enlisted in the Regular Army on 9 May 2002 for a period of
5 years, training as a cannon crewman, assignment to Fort Sill, OK and an $11,000.00 cash enlistment bonus.  He completed his one-station unit training at Fort Sill and he remained there for his first and only assignment.

3.  He deployed to Iraq with his unit during the period 14 April 2003 to 20 March 2004 and he returned to Fort Sill.

4.  On 31 May 2005, the applicant and his spouse were seen by a psychiatrist at Reynolds Army Community Hospital, Fort Sill for a complaint of PTSD.  The examining psychiatrist opined that his clinical records were consistent with PTSD.  He also indicated the applicant suffered from depression and adult maltreatment (perpetrator) physical abuse.  He prescribed a change in medication and follow-up appointments with a therapist and PTSD group.

5.  On 23 August 2005, the Chief, Department of Behavioral Health opined that the applicant had good control of his chronic PTSD and that his Depression was resolved with medication. 

6.  On 27 January 2006 a licensed clinical social worker (LCSW) diagnosed the applicant as having:

* AXIS I – Adjustment Disorder with depression
* AXIS II – None
* AXIS III – IGA Deficiency with multi-accompanying physical symptomotologies

7.  On 30 January 2006, a psychiatrist diagnosed the applicant as having AXIS I – Adjustment Disorder with depressive mood.

8.  On 10 April 2006, the staff psychiatrist that opined the applicant’s condition was consistent with PTSD diagnosed the applicant as having:

* AXIS I – Depressive Disorder, Not otherwise specified
* AXIS II – Deferred
* AXIS III – No acute medical issues – S/P Medication overdose in serious suicide attempt

9.  In May 2006, an LCSW diagnosed the applicant as having AXIS I – Major Depressive Disorder, Recurrent.  All of the mental status evaluations indicated the applicant had no psychiatric or mental defects that warranted separation through medical channels.

10.  On 12 May 2006, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 5-17, due to other designated physical or mental conditions.  He cited as the basis for his recommendation the applicant had been diagnosed as having PTSD and he was suspected of emotionally and physically abusing his family.

11.  After consulting with defense counsel the applicant elected not to submit a statement in his own behalf; however, he annotated on the acknowledgement that he had been diagnosed with PTSD on three occasions, had never had nonjudicial punishment imposed, and had been decorated for his service. 

12. On 22 May 2006, the appropriate authority approved the recommendation for discharge and directed the applicant be furnished an Honorable Discharge Certificate.

13.  Accordingly, he was honorably discharged on 5 June 2006 under the provisions of Army Regulation 635-200, paragraph 5-17 due to a condition not a disability.  He completed 4 years and 27 days of creditable active service.

14.  On 31 January 2013, the VA awarded the applicant a combined 40 percent service-connected disability rating that consisted of a 30 percent rating for Major Depressive Disorder – Mild and 10 percent for right knee derangement and chondromalacia status post arthroscopic debridement effective 13 August 2012.  The VA denied his claim for PTSD.

15.  Army Regulation 635-200, paragraph 5-17, provides for the separation of Soldiers who have a physical or mental condition that potentially interferes with assignment to or performance of duty that does not amount to a disability or qualify for disability processing under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

16.  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.

17.  Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

18.  Army Regulation 40-501 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 DSN-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 protected environment; or

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

19.  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 that it determines were incurred during military service and subsequently affects the individual's employability.

DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, it appears the applicant was properly discharged in accordance with the applicable laws and regulations with no indication of any violations of any of his rights.

2.  Accordingly, he was properly assigned a narrative reason for separation based on the authority for his discharge.

3.  The totality of the evidence, including the medical records most proximate to the applicant’s discharge, overwhelmingly support the conclusion that the applicant, upon his separation, met medical retention standards and did not have a condition warranting an MEB/PEB or entry into the PDES.

4.  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 then in effect.

5.  While the applicant contends he should have been medically retired by reason of permanent disability due to PTSD, there appears to be no evidence to show his condition was such to render him unfit for service or warranting referral through the PDES for PTSD.  He had a diagnosis of PTSD that is mentioned from time to time in his record, but it is mentioned as “mild” and noted to respond well to treatment.  This is also supported by the fact that the VA has also denied his claim for PTSD.

6.  The applicant’s contention that he is entitled to 6 months of compensation under Title 38 due to mental disorders due to traumatic stress has not been considered as that provision of law is administered by the VA and is not within the purview of this agency to adjudicate.

7.  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:

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)                                         AR20120020499



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ABCMR Record of Proceedings (cont)                                         AR20120020499



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