IN THE CASE OF:
BOARD DATE: 11 December 2014
DOCKET NUMBER: AR20140004213
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 physical disability with severance pay to physical disability retirement.
2. The applicant states:
a. The Army overlooked post-traumatic stress disorder (PTSD) along with many other issues that could have helped in medically retiring him. Like many other problems, most of them do not have the courage to come out and announce that they have PTSD. He knew he had issues that affected his role as a Soldier, but did not know what to do. Since bringing the issues to the attention of his doctors, he has since been diagnosed with multiple issues all stemming from his combat duty. All of these directly influenced him in leaving the army. He was not counseled during out-processing or informed him of what was going on or informed him to list his mental conditions. The military has since acknowledged the fact they did not look into Soldiers who were getting discharged for retirement, and they are hoping they can correct this now.
b. Depression and anxiety was present during discharge, and yet no tests were given to determine the reason why. He now has a 70% disability for PTSD, depression, and anxiety to include agoraphobia which was happening during his military time. During out-processing he was seen by doctors, all of them only wanted information on the leg issue.
3. The applicant provides
* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Physical Evaluation Board (PEB) Proceeding
* Medical Evaluation Board (MEB) Proceedings
* Fort Hood, Texas Processing Documents (Physical Disability) -2 pages
* PEB Liaison Officer (PEBLO) Check List/Statement - 2 pages
* PEB, Fort Sam Houston Memorandum, dated 9 May 2005
* PEB Referral Transmittal Document
* Texas Physical Evaluation Board (PEB) Fact Sheet - 2 pages
* PEBLO/PEB Checklist
* MEB - 6 pages
* Report of Medical Examination
* Report of Medical History
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 on 19 February 2002, completed training as a Bradley fighting vehicle system maintainer, and progressed normally to specialist (pay grade E-4).
3. He deployed in support of Operation Iraqi Freedom from 9 April 2003 to 8 April 2004.
4. In a 29 April 2005 statement about the applicant's performance his company commander made no reference to any emotional or psychiatric limitations or manifestations.
5. On 9 May 2005, an MEB found he did not meet retention medical standards due to chronic shin splints/shin pain that had been incurred while entitled to active duty and had not existed prior to service. His case was referred to a PEB. The applicant indicated that he did not want to continue on active duty and concurred with the findings and recommendation of the MEB.
6. The PEB found the applicant unfit due to bilateral shin splints without documented range of motion limitations and rated his condition at zero percent.
7. The available records contain no evidence of or reference to PTSD on any mental or emotional issues suggesting the existence of PTSD.
8. On 23 June 2005, the applicant was separated due to physical disability with severance pay.
9. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states that 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.
10. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
11. 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. 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. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting 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.
12. The applicant submitted a 2-page fact sheet about the PEB Process that the applicant certified by his signature, on 26 April 2005, that he had read and fully understood. Among the bulleted items under the heading, Army Ratings and the Department of Veterans Affairs (VA), are the following
* The only conditions ratable by the Army are those that make the Soldier unfit for Duty. Additional diagnoses listed in the MEB that are not unfitting are not rated by the PEB
* Soldiers are encouraged to file a claim with the VA for all service-connected impairments. The VA may rate ANY service-connected impairment and they will base the rating on their independent evaluation
* The Army's ratings are permanent upon final determination, but the VA rating may fluctuate with time
* The Army's disability compensation is affected by years of service and basic pay
* VA compensation is a flat amount based upon the percentage rating reached and is non-taxable
* The Army is not bound by the VA rating nor is the VA bound by the Army's ratings
DISCUSSION AND CONCLUSIONS:
1. The applicant believes the Army should have rated him for PTSD because the VA did.
2. On 26 April 2005, before his MEB, the applicant indicated he read and understood the information about other medical conditions and the differences between the military and VA symptoms. He had sufficient notice and plenty of time to raise his emotional/mental issues. More importantly, had they impacted his duty performance the company commander would have mentioned them.
3. There is no available evidence that PTSD or any other condition, except shin splints, affected the applicant's performance of duty.
4. 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. Because two different concepts are involved, the applicant's psychiatric condition, although not medically unfitting for military service may be sufficient to qualify him for VA benefits.
5. The applicant has submitted neither probative evidence nor a convincing argument. There is no basis for granting the applicant's request.
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) AR20140004213
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