BOARD DATE:	  24 October 2014

		DOCKET NUMBER:  AR20130001926 


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, correction of his records to show he was medically retired.  Specifically, he requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* Item 23 (Type of Separation) Retirement
* Item 25 (Separation Authority) Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-24b(1)
* Item 26 (Separation Code) "SFJ"
* Item 27 (Reentry Code) "4"
* Item 28 (Narrative Reason for Separation) Disability, permanent

2.  He states he had a mental disorder that developed in the service as a result of highly-stressful events.  His condition was serious enough to cause his release from the service.  He opines that if his chain of command and mental health professionals had not erred in failing to refer him to a Medical Evaluation Board (MEB) and/or a Physical Evaluation Board (PEB) for post-traumatic stress disorder (PTSD), he would have been assigned a disability rating of not less than 50 percent (%).  However, due to an error in his mental health records, he was not referred.

3.  The applicant provides:

* Self-authored statement
* DD Form 214
* DA Form 199 (PEB Proceedings), dated 15 August 2007
* Health Record documents
* Pages 7 and 8 of a Department of Veterans Affairs (VA) document

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 14 July 2005 and he held an infantry military occupational specialty.  He served in Iraq from 29 November 2005 to 20 October 2006.

3.  His complete service medical records are not available for review.

4.  He provided several health record documents that show he was seen on several occasions at the Darnall Army Medical Center, Fort Hood, TX.  These health record documents contain the following information:

   a.  On 3 January 2007, he was seen at the Social Work Care Management Clinic for his mood swings.  The social worker provided a history of the applicant's illness.  She said the applicant indicated he had always had some issues controlling his mood and when he was younger this included his temper.  She said he reported receiving counseling/therapy when he was in high school for a brief time to assist him with some anger issues.  While home on leave post deployment, the applicant's mother suggested he find someone to talk to on base.  He denies symptoms of combat stress, but then admitted to not dealing well with crowds.  He was released without limitations.
   
   b.  On 12 February 2007, he was seen at the Psychology Counseling Center for a medical evaluation.  She said the applicant endorsed mood swings, 1 to 2 per week since childhood.  He alternates with depressed episodes with irritability "self-loathing" that lasts 1 to 2 plus days.  He had one suicide gesture in Iraq, he said he put his M-16 in his mouth, "but I did not want to hurt my Mom."  He has never had a long-lasting relationship, marks loneliness as a stressor.  He was deployed in November 2005 to October 2006, was a "route cleaner," and he was never shot at or blown-up.  The psychiatrist said her impression was the applicant was probably cyclothymia (mood disorder) with Axis II of narcissist and may have obsessive compulsive personality traits.  He was diagnosed with episodic mood disorder. 
   
   c.  On 20 February 2007, he was seen at the Psychology Counseling Center for a follow-up appointment.  The psychiatrist stated that at the applicant's last visit he was diagnosed with an episodic mood disorder.  The applicant said the medication prescribed worked well, but he noticed increased irritability when he felt the dose was wearing off in the afternoon.  He was sleeping much more deeply with the medication.  His speech was still somewhat uninterruptable.  They discussed his option with the military, MEB, chapter, or staying in.  She said she believed he would be non-deployable with his mood disorder, not able to stay in the infantry because of his foot, and he was acceptable to the idea of getting out. 

	d.  On 7 May 2007, he was seen for third visit at the Psychology Counseling Center.  The psychiatrist said she was fairly certain his diagnosis was definitely cyclothymia, with Axis II traits of obsessive compulsive personality disorder, narcissism.  She said he does not have a personality disorder.  He told the psychiatrist that he was being evaluated for an MEB due to an ankle problem, a malformation/growth defect.  She said she still believed he was non-deployable with his mood disorder, particularly due to the medication he was on causing heat intolerance and water imbalance.  However, her evaluation at this time was that he was not impaired by his psychiatric symptoms to the point that he would require an MEB or chapter from a psychiatric viewpoint at that assessment.  

	e.  On 24 August 2007, the applicant reported to the Psychology Counseling Center for medication follow-up.  He reported that about once a month he may have a short period of time (less than a day) where out of the blue he feels that "life isn't worth living" but he was not suicidal.  He should be getting orders soon and will follow-up with the VA.

5.  A DA Form 199 shows an informal PEB convened on 15 August 2007.  The PEB found chronic pain, left ankle status post calcaneonavicumar coalition release.  The board stated that there was compelling evidence to support a finding that the condition existed prior to service (EPTS) and was not permanently aggravated beyond natural progression by such service.  The board found the applicant was physically unfit and recommended a 0% disability rating. The findings of the PEB were approved on 6 September 2007.

6.  The applicant's record is void of his concurrence and or non-concurrence with the PEB findings.

7.  He was honorably discharged on 3 October 2007.  He completed 2 years, 2 months, and 20 days of creditable active service.  His DD Form 214 shows in: 

* Item 23; Discharge
* Item 25; Army Regulation 635-40 paragraph 4-24B(4)
* Item 26; "JFM"
* Item 27; "3"
* Item 28; Disability, EPTS, PEB

8.  Pages 7 and 8 of a VA document shows that on 15 June 2010 the applicant was examined by the VA and diagnosed with PTSD.  The document indicated that the applicant developed PTSD as a result of serving in the combat zone.

9.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

	a.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it 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.

	b.  Recommendations of the informal PEB are recorded on a DA Form 199.  Item 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations.  These include:

* concurrence with the findings and recommendations and waiver of a formal hearing
* nonconcurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for nonconcurrence, and waiver of a formal hearing
* demand for a formal hearing with or without personal appearance
* choice of counsel if a hearing is demanded

   c.  Soldiers indicate their elections by placing a checkmark in item 13 and signing and dating the original and the medical treatment facility copies.

10.  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 rated at least 30 percent.

11.  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 error or injustice on the part of the Army.  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 affect the individual's civilian employability.  Furthermore, unlike the U.S. 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.  The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's entire medical records are not available to the Board.  The PEB would have had his entire record and would have known any problems that would have caused him to be listed as unfit for duty.  However, the available evidence shows he was found unfit for duty for chronic pain, left ankle, which was an EPTS condition.  He received a 0% disability rating.

2.  Although the applicant did not provide a copy of his election to the PEB's recommendation that he be separated from the service and a copy of his election is not contained in his available record, the presumption of regularity must be applied.  It must be assumed that he concurred with the findings and recommendations of the PEB and waived a formal hearing.

3.  Based on the health record documents he provided, at no time was he diagnosed with PTSD.  In fact, his psychiatrist said she was fairly certain his diagnosis was definitely cyclothymia, with Axis II traits of obsessive compulsive personality disorder, narcissism.  She further stated that at this time, he was not impaired by his psychiatric symptoms to the point that he would require an MEB or chapter.  

4.  The examination from the VA, conducted 32 months after his discharge, is the only document that indicates he developed PTSD.  However, this document is not sufficient justification to establish entitlement to a medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  On the contrary, the Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment he received while he was in an active duty status or any evidence to show he was denied due process.  Consequently, there is no basis for granting his request for a medical retirement.  Likewise, there is no basis to correct his DD Form 214.

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)                                         AR20130001926





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ABCMR Record of Proceedings (cont)                                         AR20130001926



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