BOARD DATE:	  14 May 2014

		DOCKET NUMBER:  AR20130015592 


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 reconsideration of his earlier request for correction of his records to show he was medically retired after receiving an evaluation from the Army Physical Disability Evaluation System (PDES).  

2.  He states:

	a.  he originally elected to be evaluated within the PDES, but he subsequently requested an administrative discharge.

   b.  he reached his "breaking point" after being harmed by Sergeant First Class (SFC) R (his first sergeant), whose deliberate actions were to mess with his mind due to his biased and racist views.  He cited SFC R's derogatory comments to him.

	c.  SFC R did not give proper attention to his PDES and missed the deadline to submit his paperwork to the PDES.  His case was unnecessarily delayed and took 1 year to get to the PDES.

	d.  SFC R gave him an unlawful order at an unscheduled drill because he contacted the State to check the status of his case after waiting a month for a reply.

	e.  SFC R told him he would place him in an absent without leave (AWOL) status because he was going to take his wife to her obstetrics and gynecology (OB/GYN) appointment.  The baby was due in less than a week.  This contributed to his "breaking point" so he decided to send SFC R an email, dated 2 September 2011, to address his actions toward him.  

	f.  he told his Department of Veterans Affairs (VA) psychotherapist that he had just lost his mind and he was going to hurt himself or SFC R.  His VA psychotherapist suggested that he should request an administrative discharge and remain tactful even though SFC R was cruel to him.  

	g.  he had been hospitalized twice for overdosing on Ambien and walking into traffic as an attempted suicide to end all his medical problems, paranoia, and dealing with his family.

	h.  he was hospitalized in the VA inpatient psychiatric unit for the third time from 2 November to 2 December 2011 and he was discharged from the Army on 17 November 2011 while in the inpatient psychiatric unit.  He mentioned other unethical incidents involving SFC R which can be verified by the unit's administrative personnel.  

3.  He provides email correspondence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120008613 on 12 February 2013.

2.  The applicant provided new arguments that will be considered by the Board.

3.  The evidence of record shows the applicant enlisted in the U.S. Marine Corps Reserve and entered initial active duty for training on 17 December 2007.  On 
11 August 2008, the applicant was discharged after completing 7 months and   25 days of active military service.  The DD Form 214 he was issued shows his character of service was "uncharacterized" and the narrative reason for discharge was "condition not a disability." 

4.  On 10 February 2009, the VA granted him a service-connected disability rating of 30 percent (%) for major depressive disorder and denied his claim on 15 additional ailments he requested.  

5.  On 3 March 2009, he received an accession medical waiver for ankle arthropathy/pes planus in order to enlist in the New York Army National Guard (NYARNG). 
6.  On 10 March 2009, he enlisted in the NYARNG for 7 years and 17 weeks, in the rank/grade of private/E-2.

7.  On 13 July 2009, the VA granted the applicant a service-connected disability rating of 60% for urticaria based on additional evidence the VA received on 
18 February 2009.  

8.  The applicant filed a claim with the VA for an increased evaluation which was received on 4 August 2009.  On 14 May 2010, the VA increased his service-connected disability rating for major depressive disorder to 50%.  His service-connected disability rating for urticaria remained at 60%.

9.  The VA conducted a de novo review of the applicant's disability claim and on 28 May 2010, concluded the applicant would receive service-connection for:

* right knee meniscal tears with minimal extrusion, 10%
* left knee tiny lateral meniscal tears with minimal extrusion, 10%
* left rotator cuff tendonitis, 10%
* degenerative disk disease of the thoraco-lumbar spine at T7-8, T8-9,    L3-4, L5-S1, with mild spinal stenosis, 10%

10.  On 8 September 2010, he received a permanent physical profile for depression, post-traumatic stress disorder, knee, shoulder, and back injuries with a recommendation of referral to a medical evaluation board (MEB).

11.  On 25 October 2010, the Chief of Medical Standards for the NYARNG reviewed the applicant's medical records and causes for referral to the MEB.  He subsequently recommended the applicant be medically separated.

12.  On 2 November 2010, the applicant was notified that he no longer met the Army medical standards for retention in accordance with Army Regulation 
40-501 (Standards of Medical Fitness) and on 11 November 2010, he completed a Statement of Understanding and Medical Disqualification Election and he elected to enter the PDES for his service-connected injuries.

13.  As part of his PDES processing, on 5 May 2011, the applicant was instructed to complete an MEB worksheet and a DD Form 2807-1 (Report of Medical History) not later than 5 July 2011.




14.  Based on a new claim for benefits, the VA concluded on 3 June 2011 the applicant would receive service-connection for:

* major depressive disorder increased to 70%
* degenerative disk disease of the thoracolumbar spine at T7-8, T8-9, L3-4, L5-S1, with mild spinal stenosis increased to 40%
* urticaria remained rated at 60%
* right knee meniscal tears with minimal extrusion rate at 10%
* left knee tiny lateral meniscal tears with minimal extrusion rated at 10%
* left rotator cuff tendonitis rated at 10%

15.  The applicant provides a copy of an MEB worksheet and DD Form 2807-1, dated 27 June 2011, in which he states he was not able to attend advanced individual training due to his medical conditions and that he previously received an uncharacterized discharge from the U.S. Marine Corps because he was not fit for continued training due to a myriad of musculoskeletal issues related to his pes planus.  The DD Form 2807-1 was not authenticated by the examining physician.

16.  On 2 September 2011, the applicant completed a second Statement of Understanding and Medical Disqualification Election where he acknowledged he was physically disqualified for retention specifically in the NYARNG, and he elected to separate from the ARNG and as a Reserve of the Army by discharge based on having less than 15 years of total service.  He further initialed and authenticated the statement with his signature indicating he understood:

   a.  If he elected discharge or separation from the ARNG it would not entitle him to pay, allowances, or other benefits unless otherwise authorized by law; and

   b.  That his discharge or separation would be effective 45 days from the date his election was received.

17.  On 17 November 2011, he was honorably discharged from the ARNG and as a Reserve of the Army.  

18.  The applicant provided 6 pages of email documenting communications between various members of his unit's administrative support staff, the chain of command and himself.  

   a.  On 1 September 2011, SFC R advised him to report on 2 September 2011 for a counseling statement.  On the same date, the applicant informed SFC that he could not make it because he had to take his wife to her OBGYN appointment.  SFC R told the applicant to fax him documentation on the appointment or otherwise he would be considered AWOL.

	b.  On 1 September 2011, the applicant apologized for his verbiage in the previous email.  He explained he was requesting a follow-up regarding his MEB/Physical Evaluation Board (PEB) case.  

   c.  On 3 September 2011, the applicant informed his 1SG that it would be in his best interest to take the discharge and requested his "Discharge Election within 45 day- letter" be emailed to the State.

	d.  On 2 September 2011, the applicant informed SFC R that he had reached his "breaking point" and that he was willing to take the Non-duty related discharge.  He lost his peace and sleep due to SFC R's personal feelings.  He provided his official VA diagnoses and he posed questions.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 office, grade, rank, or rating.  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.  

20.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

21.  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 VA Schedule for Rating Disabilities.  Ratings can range from 0% to 100%, rising in increments of 10%.

22.  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 rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

23.  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 an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to undergo PDES processing in order to establish a medical retirement due to physical disability has been carefully considered.  However, the evidence of record does not indicate an error or injustice exists in this case.

2.  The evidence shows the applicant was placed on a permanent profile in September 2010 for depression, post-traumatic stress disorder, knee, shoulder, and back injuries, with a recommendation of referral to an MEB.

3.  In November 2010, the applicant was notified that he no longer met the Army medical standards for retention in accordance with Army Regulation 40-501.  He completed a Statement of Understanding and Medical Disqualification Election electing to enter the PDES for his service-connected injuries.

4.  The applicant stated he had reached his "breaking point" due to the deliberate actions and biased and racist views of his 1SG, who he suggested contributed to his decision to change his mind about processing through the PDES and request an administrative discharge.

5.  The evidence of record shows the VA granted the applicant service-connected disability ratings for several medical conditions.  However, the award of VA compensation does not mandate disability retirement or separation from the Army.  

6.  It appears that most of the conditions for which the VA granted him service connection were in fact not incurred while he was entitled to basic pay.  The VA granted him a rating for major depressive disorder in February 2009; he received a medical waiver for ankle arthropathy/pes planus in March 2009 (indicating he did not tell accession medical authorities he had a VA rating for major depressive disorder).  In July 2009, the VA granted him a rating for urticaria, but it was based on evidence the VA received in February 2009.  In June 2011, the VA granted him ratings for a myriad of musculoskeletal issues that may or may not have been incurred while he was in the U.S. Marine Corps.

7.  Nevertheless, the applicant was given the opportunity to undergo processing within the PDES but he decided to terminate the PDES process and elected an administrative discharge.  He voluntarily made this decision to terminate the PDES process with counsel of his VA psychotherapist.  

8.  Based on 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 to amend the decision of the ABCMR set forth in Docket Number AR20120008613, dated 12 February 2013.



      _______ _  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)                                         AR20130015592



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ABCMR Record of Proceedings (cont)                                         AR20130015592



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