IN THE CASE OF:	

		BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130009915 


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 two applications, that his evaluation under the Physical Disability Evaluation System (PDES) be corrected to reflect his conditions of post-traumatic stress disorder (PTSD), tuberculosis, and sleep disorder and that his conditions and injuries be considered combat-related. 

2.  The applicant states, in effect, that he injured his back and feet in August 2007 while on a training exercise when he fell off the back of a truck.  He goes on to state that he reported his fall to his platoon leader and sergeant but did not seek treatment until October 2007.  He also states that no line of duty investigation was done at the time but should have been.  

3.  He continues by stating that the Physical Evaluation Board (PEB) did not include his diagnosis of PTSD, tuberculosis and sleep disorder and found that his condition was not combat-related.  However, the fact that he was simulating combat conditions during an exercise in preparation for deployment should warrant a finding of being combat-related.  Additionally, his other conditions should have been added to his PEB consideration with an appropriate level of disability awarded.   

4.  The applicant provides 13 pages of an explanation of his application as well copies of his medical and personnel records which include results from his Medical Evaluation Board (MEB), PEB, and Department of Veterans Affairs (VA) proceedings. 


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 Alabama Army National Guard on 5 October 1989.  He completed his training and continued to serve through a series of continuous reenlistments.  He was promoted to pay grade E-5 on 16 June 2001.  He was honorably discharged from the Alabama Army National Guard on 14 February 2007 for immediate enlistment in the Regular Army.

3.  On 15 February 2007, he enlisted in the Regular Army in pay grade E-5 for a period of 3 years and 2 months and assignment as a food service specialist.  He was assigned to Fort Hood, Texas, for duty as a food operations sergeant.  He served in Afghanistan from 27 June 2008 – 12 June 2009.

4.  On 27 June 2011, an MEB was conducted at Fort Hood, Texas and the applicant was diagnosed as having an unfitting condition of chronic, idiopathic, axonal peripheral neuropathy.  The MEB also found that his conditions of abdominal lymph node enlargement, keratosis pilaris, hypertension, impaired glucose intolerance, insomnia, and dyslipidemia were not unfitting conditions.  The MEB recommended referral to a PEB.  The applicant non-concurred with the MEB findings contending that PTSD should be listed as one of his conditions.

5.  The MEB approving authority reviewed the applicant’s appeal and indicated that even though a medical evaluation opined that there might be a diagnosis of PTSD, there was at the time no Behavioral Health (BH) professional who had reviewed his symptoms and concurred with such a diagnosis.  The VA examination confirmed that there were no current BH symptoms, diagnosis or conditions.

6.  On 31 October 2011, an informal PEB found the applicant unfit for his peripheral neuropathy and the VA rated it at zero percent.  All other listed conditions were found not to be unfitting and not compensable.  Additionally, his conditions were not deemed combat-related.  The applicant concurred with the findings and waived his right to a formal hearing.

7.  The applicant’s case was processed under the provisions of the Integrated Disability Evaluation System (IDES) and the VA was responsible for the initial medical evaluation (Compensation and Pension examination) and the final disability rating for each of the conditions found unfit by the PEB.  The commander’s statement indicated that any BH issues the Soldier might have had had only a minimal effect on his ability to perform his duties to standard. 

8.  Accordingly, he was honorably discharged in pay grade E-5 on 29 March 2012 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, due to disability with severance pay (non-combat) enhanced, with a separation program designator (SPD) code of JEB.  He received $72,309.60 in severance pay benefits.

9.  In the processing of his application, a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) which recommended no changes be made to the applicant findings under the PDES as the findings were supported by a preponderance of the evidence, were not arbitrary or capricious and were not in violation of any statute, directive or regulation.

10.  The advisory opinion was provided to the applicant for comment and he responded with a two-page letter of disagreement in which he states that he has provided evidence to prove he was injured while working with his unit during a field training exercise when he fell off a truck while getting food supplies to prepare for a morning breakfast.  Accordingly, his injury should be deemed to be combat-related.  He goes on to state that because he served during the Gulf War during the period 1990 – 1991, his conditions of keratosis, abnormal lymph node enlargement, insomnia, hypertension, impaired glucose tolerance, dyslipidemia, and PTSD should be considered presumptive service-connected.  He also provides documents to show that he was diagnosed with chronic PTSD on          9 June 2011 by a Ph.D and Licensed Clinical Social Worker at Fort Hood.  

11.  The VA Rating Decision provided by the applicant with his application shows that he was granted 0% service-connected disability for all of his conditions.

12.  Army Regulation 635-40 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 635-40 also governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It 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.

14.  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 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 affects the individual's employability.

15.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

16.  Public Law 110-181, enacted on 28 January 2008, authorized an enhancement of disability severance pay for members of the armed forces.  The law mandated that the Secretaries of Military Departments identify and certify members with a disability incurred in a line of duty in a combat zone tax exclusion area or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.  The determination of “incurred during performance of duty in combat-related operations” shall be made consistent with the criteria of the law.  Military Departments shall ensure the appropriate severance pay is calculated in accordance with Title 10, U.S. Code, section 12, and is paid.

17.  The Under Secretary of Defense memorandum, dated 13 March 2008, established four new SPD codes.  The new SPD codes reflect the categorization of combat-related disability directed by Public Law 101-181 and will be utilized on the DD Form 214 of all service members with disabilities incurred in a combat-related operation.  SPD Code JEB is appropriate when the narrative reason for discharge is disability, severance pay, non-combat (enhanced) related, and the authority is Army Regulation 635-40, chapter 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been noted; however, evidence in this case suggests that the applicant's disabilities were properly rated in accordance with the VA Schedule for Rating Disabilities and his separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  The applicant was found unfit for duty and he was assigned a disability rating of zero percent for his one unfitting condition (chronic, idiopathic, axonal peripheral neuropathy) as it existed at the time of his PEB hearing.  He concurred with the findings and recommendation of the PEB.  There is no evidence to show he had other conditions that rendered him unfit to perform his duties.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army rating becomes effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show he was not afforded the proper disability processing or that the evaluation and the rating the PEB rendered were incorrect.

4.  While the applicant has provided documents showing that he was diagnosed as having PTSD, he has provided no evidence to show that his PTSD was unfitting at the time he was undergoing evaluation under the PDES.  Further, his commander’s statement indicated that any BH issues he might have had had only a minimal effect on his ability to perform his duties to standard.

5.  Under the 2008 NDAA, in order to differentiate injuries and establish specific entitlements to certain programs, the DOD established specific SPDs for each type of injury.  In the applicant’s case, his injury occurred during a training exercise.  The injury did not occur in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  Therefore, he was discharged as a result of a disability that did not occur in a combat zone which is correctly shown on his DD Form 214.


6.  In view 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:

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)                                         AR20130009915





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ABCMR Record of Proceedings (cont)                                         AR20130009915



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