BOARD DATE:  17 April 2014

		DOCKET NUMBER:  AR20130012437


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 his medical discharge be converted to a medical retirement.

2.  The applicant states:

* his post-traumatic stress disorder (PTSD) was not diagnosed by medical doctors prior to his discharge
* he was discharged with a 20 percent disability rating, but he should have received 30 percent or more
* he was put on medical leave and discharged from home
* he was not debriefed or examined before his release
* he was suffering from PTSD and did not know it at the time
* his PTSD may have been discovered if he had been examined prior to discharge
* he did not see any personnel, he simply received a letter in the mail
* he was diagnosed with PTSD from his service in support of Operation Desert Storm, approximately 2 years ago
* the Department of Veterans Affairs (VA) recently completed his disability compensation case, approximately 1 month ago

3.  The applicant provides no additional evidence in support of his request.




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.  On 24 August 1988, the applicant enlisted in the U.S. Army Reserve (USAR).  

3.  On 14 March 1989, he entered active duty for the purpose of completing his initial entry training.  

4.  On 26 September 1990, upon the completion of his initial entry training, he was awarded military occupational specialties 91A (Medical Specialist) and 91C (Practical Nurse).  On this same date, he was honorably released from active duty and returned to the control of his USAR troop program unit (TPU) of assignment.

5.  On 8 January 1991, he was mobilized and ordered to active duty in support of Operations Desert Shield and Desert Storm.

6.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Germany from 15 January 1991 through 19 May 1991.  It does not show he deployed to Southwest Asia in support of Operations Desert Shield and Desert Storm.  

7.  On 19 May 1991, he was honorably released from active duty and returned to the control of his USAR TPU.

8.  On 17 March 1993, a medical evaluation board (MEB) convened at Darnall Army Community Hospital, Fort Hood, TX.

   a. The MEB referred his case to a physical evaluation board (PEB) based on the applicant's diagnosed medical condition, cited as persistent synovitis [inflammation of the synovial membrane] and retropatellar pain of both knees of uncertain etiology and refractory to surgical treatment.  
   b. This condition originated in 1989 (approximately) and was incurred while he was entitled to base pay.

   c. On 19 March 1993, the MEB findings and recommendation were approved.  

   d. On 31 March 1993, the applicant non-concurred with the MEB's findings and recommendation.  He submitted an appeal for consideration.  

   e. On 22 April 1993, the MEB approval authority noted that the applicant's appeal had been considered; however, the board's original findings and recommendation were confirmed.  

9.  On 3 May 1993, an informal PEB convened at Fort Sam Houston, TX, considered his case and found his condition prevented him from performing the duties required by his MOS.  

   a. The PEB determined he was physically unfit due to persistent synovitis and retropatellar pain of both knees. 

   b. He was rated under the VA Schedule for Rating Disabilities (VASRD), code 5003 (Arthritis, degenerative) and granted a 10 percent disability rating.

   c. The PEB recommended that he be separated from the service with entitlement to severance pay if otherwise qualified.  

   d. The applicant failed to note his concurrence or non-concurrence, or to make an election in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-20c(3).

   e. On 6 July 1993, the PEB's findings and recommendation were approved.

10.  On 17 September 1993, he was honorably discharged under the provisions of Army Regulation 635-40, by reason of physical disability with severance pay, in the rank/grade of specialist/E-4, based on 5 years, 5 months, and 2 days of service.  

11.  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.

   a. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states 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 his or her office, grade, rank, or rating.

   b. Paragraph 3-5 contains guidance on rating disabilities.  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.  Any nonratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable.

12.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, 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.  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 Army PDES.

13.  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.

14.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested his discharge with severance pay be changed to disability retirement.  His request was carefully considered; however, there is insufficient evidence to support this request.
2.  The evidence of record shows he suffered from a medical condition that rendered him unable to satisfactorily perform the duties of his grade and specialty.  His commander recommended his referral to an MEB because of his inability to physically perform the basic functions of his MOS due to his knee pain.  Consequently, his records were evaluated by an MEB that referred him to a PEB.  The PEB found him medically unfit, rated his disabling condition at 10 percent, and recommended his separation by reason of physical disability with entitlement to severance pay.

3.  He contends he should have been medically retired because of his recently-diagnosed PTSD, which might have been discovered had he received another medical examination aside from the various examinations that led to his MEB and PEB.  This contention is a supposition.  Neither the applicant nor medical officials knew he was suffering from PTSD at the time of his discharge; therefore, more than likely, it would not have been discovered and diagnosed.  

4.  Regardless, his PTSD was not diagnosed at the time of his discharge and nothing in his record indicates it existed at that time or therefore hindered his ability to perform his duties.  Therefore, it was not an unfitting condition for which he would have been found unfit for further service.

5.  An award of a different rating by the VA does not establish error in the rating assigned by the Army's PDES.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Any rating action by the VA does not compel the Army to modify its rating.

6.  His PEB was conducted in accordance with law and regulations and there does not appear to be an error or injustice in his case.  In view of the foregoing, there is insufficient evidence to grant the 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)                                         AR20090007788



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ABCMR Record of Proceedings (cont)                                         AR20130012437



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