IN THE CASE OF:	  

		BOARD DATE:	  30 April 2014

		DOCKET NUMBER:  AR20130015960 


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 effect, correction of his records to show he was discharged on 9 April 1993 by reason of disability.

2.  The applicant states:

	a.  This is his last attempt at trying to get this done and time has unfortunately become too important a factor.  He was injured during his service but he stayed in his unit because he knew of no other way out.  He was transferred to another platoon after the accident due to his emotional issues, and due to the fact he could no longer drive without anxiety.  He did his service like many who now do, and who after leaving the service find out there is a place they can go for help, the Department of Veterans Affairs (VA) hospital.  Soldiers apply and through an extensive and extremely invasive process, get disability or get denied. He was first given 30 percent for his injured hand, head trauma, and ankle and back.  Then, on appeal 20 years ago, he was given 100 percent for post-traumatic stress disorder (PTSD).  Since then, his life has gone downhill.  He is completely isolated and trying to figure how to get his discharge changed to medical so he can apply for Combat-Related Special Compensation (CRSC).

	b.  Twenty years ago, nothing was done for folks like him except group therapy and it was a huge stigma to go to it.  He did go once but he could not stay in it past a few minutes before a severe anxiety attack.  He is not trying to bilk the system.  He believes he is in the right to ask this, as the injury that led to all of his later conditions did in fact happen on a combat simulated mission.  He was taught to man up and push through it.  He manned up and served his time in a limited capacity in his unit.  He needs someone to help him figure out what he is doing wrong in trying to prove this to the Board.  He provided much data and it stated that he was injured in a vehicle (HMMWV) accident.  There was a fatality.  There also was another injury.  There were folks trying to find blame on people who did not deserve that while he stated the sergeant left his post in the vehicle leaving his new tow driver to drive at night on a mountain.  He was thrown off a mountain, blamed for an accident then a rescue then he had to prove himself right.  It took a year, and by then he was deserted by his unit and all his leadership, neglected to being invisible.  He wanted to make the army his life, instead it took his.  Now, he is trying to figure out how much proof the Board wants or needs.  He has no idea how to get this mystery proof, as it probably does not exist like it would if it happened in recent times.

	c.  He lives on a fixed income from a disability rating from the VA.  He got this rating due to PTSD that developed due to an injury and accident that happened in service.  The accident was preventable and the injury was preventable.  The injustice after the accident was the attempt to lay blame upon him.  It took the last year of his service, fighting invisibility in his unit and company, being written up for things when others would not, in pay back for causing a scene.  If this was a civilian place, he could have sued and he could have easily proven injustice.  Now, he is trying to get better care and wanting to spend the remaining time on this earth not living just check to check and fear to fear, and hate to hate. He has previously sent tons of information but for some reason it was not enough, even though in black and white it states he was injured in the Army, prior to his service being up.  He is trying to apply for CRSC to get extra income to get out of living check to check.  In order to do so, he needs a medical discharge.  He deserves it as with anyone in today's service can attest.  He was injured in service but had to wait until he is out to show his weak side.  He is at the end of this attempt.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Post-service Mental Disorder Examination
* Post-service PTSD Examination
* Post-service VA records, rating, and progress notes
* VA notices of disagreements
* Selected service medical records, charts, and chronological records of medical care
* Separation orders
* Counseling form
* Statements in Support of Claim
* Direct Deposit Sign-up Form
* Standard Form 88 (Report of Medical Examination) (for enlistment)
* Standard Form 93 (Report of Medical History) (for enlistment)
* Standard Form 608 (Dental Records)
* Standard Form 601 (Immunization Record)
* Listing of medications
* Blood work results
* Eyewear prescription
* Multiple temporary profiles
* DA Form 4700 (Eye Examination – Optometry)

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's records show he enlisted in the Regular Army (RA) for a period of 3 years and 14 weeks on 2 January 1990 and he held military occupational specialty (MOS) 11H (Anti-Armor Weapons Infantryman).  He was assigned to the 3rd Battalion, 27th Infantry Regiment, Fort Ord, CA.  

3.  He was honorably released from active duty on 9 April 1993 under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations) by reason of expiration of term of service (ETS).  He completed 3 years, 3 months, and 8 days of active service.

4.  His service medical records are not available for review with this case.  He provides selected in-service documents (as described below) but there is nothing in the records he provides that shows:

* he suffered and/or was diagnosed with an illness or an injury that rendered him unable to perform the duties required of his former grade or military specialty
* he was issued a physical profile of a permanent nature that prevented him from performing the duties required of his former grade or military specialty
* he was found medically unqualified for separation in 1993
* he suffered an injury or an illness that would have warranted his referral to the Physical Disability Evaluation System (PDES)

5.  He provides:

	a.  Multiple correspondence to and from the VA relating to his VA rating and his service-connected disability compensation.  The VA increased his combined rating to 100 percent in November 2011, for PTSD, low back pain, left ankle injury, right ankle injury, and residual of a scar.

	b.  In-service medical records, dated May 1992, that show he was seen on an emergency basis after being involved in an accident. 

	c.  DA Forms 3349 (Physical Profile), dated 28 April and 14 September 1992, temporary, for ankle sprain; DA Form 3349, dated 31 July 1990, temporary, for planter fasciitis; and multiple other temporary profiles. 

	d.  VA rating decision, dated 27 August 1993, awarding him service-connection at the rate of 10 percent for left ankle injury and low back pain. 

	e.  VA PTSD evaluation, dated 8 January 1996, which shows the applicant was awarded service-connection for PTSD at the rate of 100 percent.  The evaluation shows he was unable to drive due to an accident during his military service in which he went down a cliff in a "hummer vehicle." 

	f.  VA Compensation and Pension (C&P) Examination, dated 21 December 1995, for PTSD.  He stated that he was involved in a vehicle accident when the vehicle rolled down a cliff.  He was thrown 50 feet in the air and hurt his back, ankle, and head.  This affected his ability to drive.  His C&P evaluation yielded a diagnosis of:

* Axis I – PTSD and alcohol abuse (continuous)
* Axis II – deferred
* Axis III – arthritis
* Axis IV – occupational and psychological problems
* Axis V – 55 at present

	g.  VA rating decision, dated 12 May 1994, showing service-connection for PTSD at the rate of 100 percent. 

	h.  VA rating decision, dated 15 April 1994, denying him service-connection for PTSD, tremors, PTSD, and temporal lobe seizure disorder.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 provides for the separation of Soldiers who have completed their contractual term of service.

7.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages: the medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

8.  Army Regulation 635-40 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.

9.  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 of Rating Disabilities.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

10.  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 at less than 30 percent.

11.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 

12.  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 evidence of record shows the applicant enlisted in the RA on 2 January 1990 and he was honorably released from active duty by reason of ETS on 9 April 1993.  After his separation, he applied for and was awarded service-connected disability compensation by the VA for various conditions.  He appears to believe since the VA awarded him service-connected disability for multiple conditions, including PTSD, the Army should have, in effect, done the same.  This contention is without merit.  

	a.  Under the legacy PDES, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army.  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) that affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	b.  If and when identified, diagnosed, evaluated, and rated, 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.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA may rate all service-connected conditions.

	c.  In the applicant's case, there was no diagnosis for any medical, physical or behavioral, conditions being a disabling factor at the time of his separation.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

2.  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.  The applicant did not have a condition that failed retention standards and/or was found unfitting.  Referral to the Army disability system requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  Here, there is no evidence he:

* had a permanent physical profile
* was diagnosed with a disabling condition that rendered him unable to perform the duties required of his MOS or grade
* had a mental status evaluation that confirms a diagnosis of any mental health problem

3.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's discharge and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of will be rated.

4.  In the applicant's case, contrary to his belief and/or assertion that he should have been medically discharged, not only was he not diagnosed with any disabling condition at the time of his discharge, his service was not interrupted by any medical condition.  He admits that he "pushed through it."  His service was "interrupted" by his choice to ETS. 

5.  The applicant has failed to support his contention that he was medically unqualified at the time of his 1993 separation or that he was eligible for disability processing.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, 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 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)                                         AR20130015960



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ABCMR Record of Proceedings (cont)                                         AR20130015960



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