IN THE CASE OF:	  

		BOARD DATE:  28 January 2014

		DOCKET NUMBER:  AR20130008605 


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 his 2009 disability separation to show post-traumatic stress disorder (PTSD) was considered by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB), an increase to his disability rating, and disability retirement. 

2.  The applicant states he served in the Army from August 2000 through August 2009.  He was medically discharged due to back, wrist, and other injuries with a 20% disability rating.  During his military service he was examined by numerous Army medical doctors and none of them rendered a diagnosis of PTSD.

   a.  After he was discharged, he filed a service-connected disability claim with the Department of Veterans Affairs (VA).  In February 2010, the VA awarded him a 10% disability rating for the conditions that resulted in his disability discharge.  The VA also granted him a 30% disability rating for PTSD, a condition that he did not file a claim for.

   b.  As a result of the VA's diagnosis of PTSD, which disagreed with the Army's medical findings, his medical records were changed without his consent.  Since his medical records are now "tarnished," the Army should now correct his military medical records to show he was diagnosed with PTSD and adjust his disability separation action and rating.

3.  The applicant provides copies of 605 pages of his military medical records, which an attached cover letter indicates he obtained from the VA.


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 (RA) on 24 August 2000 and he was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).

3.  He reenlisted in the RA, continued to serve on active duty, and served overseas in the following countries:

* Macedonia from 1 May 2002 to 22 November 2002
* Iraq from 1 February 2003 to 30 January 2004
* Afghanistan from 29 January 2006 to 31 May 2007

4.  He was promoted to staff sergeant/pay grade E-6 on 1 September 2007.

5.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 4 August 2009 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 (Procedures), based on disability, with severance pay, non-combat related.  He completed 8 years, 11 months, and 
11 days of total active service.

6.  In support of his application, the applicant provides 605 pages of his Army medical records that span the period of his military service and include the following pertinent documents: 

   a.  3rd Infantry Brigade Combat Team, Fort Drum, NY, memorandum, subject:  10th Mountain Division (Light Infantry), Fort Drum MOS/Medical Retention Board (MMRB) Proceedings, that show the applicant appeared before the board accompanied by his first sergeant on 27 June 2008.  Members of the MMRB considered all records, reports, and pertinent information and found the applicant to be an exceptional noncommissioned officer.  However, due to the physical limitations of his most recent permanent physical profile, dated 15 April 2008, the MMRB recommended that the applicant be referred to an MEB/PEB.  On 18 July 2008, the Commander, Headquarters, Fort Drum, NY, approved the findings and recommendation of the MMRB and referred the applicant to the MEB/PEB process.

   b.  DA Form 3947 (MEB Proceedings), dated 2 March 2009, with MEB Narrative Summary, dated 26 February 2009, and DA Form 3349 (Physical Profile), dated 15 April 2008, that show the applicant's chief complaint was chronic low back pain and that:

    	(1)  he was diagnosed with the following medical conditions/defects that did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness):

* degenerative disk disease with low back pain
* leg length discrepancy
* right hip pain secondary to leg length discrepancy

    	(2)  he was diagnosed with the following medically acceptable conditions:

* clavicle fracture with pain in left shoulder and upper back
* numbness in right (dominant) hand
* headaches
* subjective loss of short term memory
* insomnia

    	(3)  On 25 March 2009, the findings and recommendation of the board were approved and his case was referred to the PEB.

    	(4)  On 31 March 2009, the applicant acknowledged that he was informed of, and agreed with, the approved findings and recommendation of the MEB.

   c.  On 24 April 2009, a PEB was conducted at Walter Reed Army Medical Center, Washington, DC.  The PEB proceedings show the applicant's diagnosis of low back pain was physically unfitting and assigned a recommended disability rating of 10%.

    	(1)  The PEB found the following diagnoses met medical retention standards:

* clavicle fracture with pain in left shoulder and upper back
* numbness in right (dominant) hand
* headaches
* subjective loss of short term memory
* insomnia

    	(2)  The PEB also found the following diagnoses were not unfitting and not ratable:
   
* leg length discrepancy
* right hip pain secondary to leg length discrepancy

   	(3)  The PEB recommended separation under Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5299 and 5237, and a 10% disability rating with severance pay.

    	(4)  The applicant concurred with the PEB's findings, waived a formal hearing of his case, and he did not appeal the PEB proceedings.

    	(5)  The PEB Liaison Officer affirmed with her signature that she had informed the applicant of the findings and recommendations of the PEB, explained to him the results of the findings and recommendations, and his legal rights.  She also confirmed that the applicant made the elections shown on the PEB proceedings.

    	(6)  The PEB proceedings were approved on 6 May 2009.

   d.  A review of the medical records that the applicant provided in support of his application failed to reveal evidence of a diagnosis of PTSD.

7.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.

8.  Army Regulation 635-40 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 his or her office, grade, rank, or rating.  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.  


9.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has impairment rated at less than 30% disabling.  It further provides, at section 1201, for the physical disability retirement of a member who has impairment rated at least 30% disabling.

10.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  (The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.)  However, the VA is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been diagnosed with the medical condition of PTSD at the time of his disability separation in 2009 and thus an additional finding of unfitness and compensation.

2.  The evidence of record shows, on 2 March 2009, an MEB considered the applicant's medical records and found that he had been diagnosed with eight medical conditions/defects.  However, there is no evidence that shows he was diagnosed with PTSD.  The MEB found three of the eight conditions did not meet retention standards and referred him to a PEB.  

3.  The evidence of record also shows, on 24 April 2009, a PEB considered the applicant's eight diagnosed medical conditions/defects and found his diagnosis of low back pain was physically unfitting and assigned a recommended disability rating of 10%.  There is no indication the applicant was diagnosed with any other medically-unacceptable conditions, such as PTSD, that failed medical retention standards.

4.  A review of the applicant's available service records and the military medical records the applicant provided in support of his application failed to reveal a diagnosis of PTSD.

5.  In order for the MEB/PEB to list a condition, there must be a medical diagnosis of such condition and an indication whether such condition met or failed retention standards.  Additionally, the Army rates only conditions determined to be physically unfitting at the time of discharge that disqualify the Soldier from further military service.  Thus, the Army disability rating is to compensate the individual for the loss of a military career.

6.  Based on a post-service VA diagnosis, the applicant now claims he should have been diagnosed with PTSD during his military service.  However, his contention is unsupported.  Records show the applicant successfully performed his required duties subsequent to his service in Macedonia, Iraq, and Afghanistan, including through the period of his evaluation by an MMRB in 2008.

7.  Thus, even if the condition of PTSD had been included in the MEB, it would still have met medical retention standards.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability and only those conditions found to be unfitting are compensable in the military disability system.

8.  The applicant provided insufficient evidence that he was diagnosed with the condition of PTSD and that it was unfitting at the time of his separation in 2009. The fact that the VA diagnosed him with and may or may not have awarded him service-connected disability compensation for PTSD in 2010 is not evidence of any error in the military disability system in 2009.

9.  The PEB's findings are supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  Based upon the existing military medical and performance evidence reviewed, and the criteria for retention standards in 2009, there is no basis to conclude that the condition of PTSD should have been included in the applicant's military medical records (e.g., MMRB, MEB, PEB, etc.) as a condition that did not meet medical retention standards.

10.  In view of all of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.


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)                                         AR20130008605



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130008605



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1