IN THE CASE OF: 

		BOARD DATE:8 October 2013

		DOCKET NUMBER:  AR20130002519 


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 her record to show she received a disability rating of 20%. 

2.  Her disability rating should be increased because she had been hospitalized while on active duty for post-traumatic stress disorder (PTSD) and was suffering from sleep apnea and depression.  She states she was not retained in the service due to her foot disability and was separated with disability severance pay.  The military would not permit her to stay based on her sleep apnea and PTSD.

3.  She provides copies of her service medical records (630 pages).

CONSIDERATION OF EVIDENCE:

1.  Following prior active and inactive service, the applicant enlisted in the Regular Army on 29 July 1998.  Her record shows she served in military occupational specialty (MOS) 31D (CID Special Agent).  She served in Iraq from 19 November 2006 to 19 November 2007. 

2.  Medical Evaluation Board (MEB) Proceedings are not available. 

3.  On 10 September 2009, a Physical Evaluation Board (PEB) convened to consider her conditions as listed below:  

	a.  Bilateral plantar fasciitis.  Soldier has had foot pain for "many years" that has not responded to conservative measures and now precludes performance of her MOS duties.  A disability rating for this condition is listed as 10%.

	b.  Bilateral hammer toes of fifth digit that contribute to Soldier's foot pain as noted above.  A disability percentage for this issue is listed as 0%.

	c.  MEB diagnosis (Dx) 8, adjustment disorder is not a physical disability and is not ratable.

	d.  "MEB Dx 4-7 meet medical retention standards, are not listed on the Physical Profile as limiting any of the Soldier's functional activities, are not commented upon by the commander as hindering the Soldier's performance, or combined, render the Soldier unfit for her assigned duties."

	e.  The PEB found her physically unfit and recommended a combined rating of 10% and separation with severance pay, if otherwise qualified.

4.  The applicant was honorably discharged on 14 February 2010 due to disability with severance pay.  She had completed a total of 13 years, 4 months, and 27 days of active duty service. 

5.  Her medical records show she received care for obstructive sleep apnea in March 2009 and depression in May 2009; however, there is no record showing the conditions were disabling or prevented her from performing the duties of her MOS.  

6.  There is no record showing she was hospitalized for PTSD or that she was diagnosed with PTSD.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 her or her office, grade, rank, or rating.  The mere presence of 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 her or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

	a.  Chapter 4 contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.  

	b.  Army Regulation 635-40 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.  This regulation further provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her record should be corrected to show she received a disability rating of 20% because she had been hospitalized while on active duty for PTSD and was suffering from sleep apnea and depression.  

2.  The PEB found her physically unfit with a combined disability rating of 
10% due to her conditions of bilateral plantar fasciitis and bilateral hammer toes of the fifth digit.  A diagnosis of adjustment disorder was listed as not a physical disability and not ratable.

3.  There is no evidence showing her diagnosed conditions of sleep apnea and depression were disabling or prevented her from performing the duties of her MOS.

4.  There is no evidence showing she was hospitalized for PTSD or diagnosed with PTSD or that PTSD prevented her from performing her duties.

5.  In view of the above, there is no basis for granting the relief she has requested.
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)                                         AR20130002279



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ABCMR Record of Proceedings (cont)                                         AR20130002519



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