IN THE CASE OF:	  

		BOARD DATE:	  17 December 2014

		DOCKET NUMBER:  AR20140006526 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of an earlier request to correct the applicant's records to show he was retired due to physical disability.

2.  Counsel states:

	a.  The original decision contains material error and injustice.  First, the Board incorrectly determined the applicant's application was not timely submitted within 3 years after discovery of the alleged error.  Second, the applicant experienced stressors during service that gave rise to his post-traumatic stress disorder (PTSD).  And third, the record undoubtedly shows the applicant's mental health condition was unfitting for continued service at the time of his separation from service.

	b.  The applicant's application for record correction was timely.  The Board erred in 2010 by dismissing the applicant's claim for lack of jurisdiction.  The applicant never submitted an application to the Physical Disability Board of Review.  Thus, the Board always maintained jurisdiction over this matter.  As the applicant's claim was improperly dismissed for lack of jurisdiction by the Board in 2010 and the error was not discovered until 2013, his claim should be considered timely.

	c.  The Board ignored the applicant's claim regarding syncope and neurogenic condition.  In his original application, the applicant argued that his 29 October 2007 syncope as determined by the Army provider at Madigan Army Medical Center, Tacoma, Washington should have triggered a second medical evaluation board (MEB) or, in the alternative, placed him on the Temporary Disability Retired List.  However, the Board did not discuss or make any conclusion on this topic.

	d.  As explained in the original application, referral to an MEB for narcolepsy, suspected epilepsy, or other neurologic conditions is mandatory.  The Army's failure to refer the applicant to a second MEB where it is clearly required to do so represents an error and injustice.

	e.  Had the Army complied with its obligations, the applicant's neurologic condition would have been found unfitting.  As a cannon crewmember, the applicant needed to handle ammunition, operate gun systems, operate self-propelled howitzers, ammunition trucks and other vehicles, and participate in reconnaissance operations.

	f.  Someone who is precluded from driving is clearly unfit for duty as a cannon crewmember.  After his motor vehicle accident, the applicant was not permitted to drive for his last 5 months in the Army.

	g.  Epilepsy is disqualifying.  Pursuant to Army regulations governing medical fitness for duty, in general, epilepsy is disqualifying unless the Soldier can be maintained free of clinical seizures of all types by nontoxic doses of medications.  The Army clearly failed to properly handle the applicant's neurologic condition.

	h.  The Board ignored evidence of the applicant's stressors.  The applicant experienced traumatic stressors during his deployment.  He was exposed to mortar rounds and improvised explosive device explosions while deployed to Iraq.  In June 2006, while serving in Iraq, he fell 5 to 6 feet in full gear after the bridge he was standing on collapsed.  Very soon after the end of his deployment, he began to experience insomnia, nightmares, and sleepwalking.  He also became hyper-vigilant to his environment and complained numerous times about anxiety and depression.  Given his documented traumatic experiences during deployment and complaints of significant mental health problems, the Army reached a conclusion unsupported by substantial evidence by finding the applicant's anxiety disorder (PTSD) met retention standards.  The doctor's proclivity for under-diagnosing and minimizing PTSD, in addition to the evidence of debilitating PTSD in the record and the Department of Veterans Affairs (VA) subsequent finding of 50 percent for PTSD, shows error and injustice.

	i.  The Board subsequently erred and ignored probative evidence by finding that there was no claim of any traumatic stressor, where there clearly existed such claims of combat-related stressors.

3.  Counsel provides a legal brief, dated 3 March 2014.

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 AR20130004757 on 16 January 2014.

2.  Counsel's contentions are new arguments that will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 2 September 2003 and was awarded military occupational specialty 13B (cannon crewmember).

4.  On 22 October 2007, the applicant underwent a psychiatric examination.  He was diagnosed with an anxiety disorder, clinically mild to moderate.  It was manifested by sleep disruption, nightmares, sleep walking, and hyper-vigilance to his environment.  He was found fit for full, unrestricted military assignment based on his psychiatric status.

5.  On 13 November 2007, an MEB diagnosed him with:

* low back pain
* anxiety disorder
* left high-frequency hearing loss
* right knee joint clicking

6.  The MEB found the applicant met retention standards for all of his medical conditions except for low back pain.  The MEB recommended his referral to a PEB.  He agreed with the board's findings and recommendations on 13 December 2007.

7.  On 21 December 2007, a PEB found him physically unfit due to lumbosacral strain with onset from a fall while deployed in June 2006.  The PEB recommended a 10-percent disability rating and separation with severance pay.  The PEB determined his other diagnosed conditions were not unfitting.  On 27 December 2007, he concurred with the recommendation of the PEB and waived a formal hearing of his case.

8.  On 3 January 2008, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings.

9.  A DA Form 18 (Revised PEB), dated 26 March 2008, shows the applicant's PEB proceedings were corrected based upon changes to the disability rating guidance under the National Defense Authorization Act 2008.  There was no changed to his overall rating or disposition.  The USAPDA approved the findings on 26 March 2008.

10.  On 27 March 2008, the applicant was discharged from active duty due to physical disability with entitlement to severance pay.

11.  On 28 May 2008, the VA informed the applicant of its decision for his claim for service-connected compensation.  Effective 28 March 2008, the VA granted the applicant the following ratings:

* PTSD – 50 percent
* right knee degenerative joint disease – 10 percent
* lumbosacral strain – 10 percent
* left ankle tendinous strain – 10 percent

12.  The applicant's original application to this Board is dated 21 February 2013.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

15.  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.

16.  Title 38, U.S. Code, sections 310 and 331, permit 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.

DISCUSSION AND CONCLUSIONS:

1.  Although counsel contends the applicant's application for record correction was timely, his application, dated 21 February 2013, was not filed within 3 years after discovery of the alleged error or injustice (in this case, 27 March 2008, his discharge date).  Nevertheless, his case was considered based upon the merits of the case.

2.  Counsel contends the record undoubtedly shows the applicant's mental health condition was unfitting for continued service at the time of his separation from service.  However, the evidence shows the applicant was diagnosed with an anxiety disorder and the PEB found this condition not to be unfitting and therefore not ratable.  He provides no evidence to show his anxiety disorder or any other mental disorder rendered him unfit to perform his duties.
 
3.  Counsel also contends the applicant experienced stressors during service that gave rise to his PTSD.  However, there is no evidence and counsel provided no evidence which shows the applicant was diagnosed with PTSD prior to his discharge.

4.  The applicant's MEB did not list PTSD as a medical condition/defect.  There is no evidence to show he was issued a physical profile for this condition.  He provided no evidence to show this condition rendered him unfit to perform his military duties.

5.  Counsel contends that referral to an MEB for narcolepsy, suspected epilepsy, or other neurologic conditions is mandatory.  However, there is no evidence the applicant was diagnosed with narcolepsy, epilepsy, or any other neurologic condition prior to his discharge.

6.  The evidence shows the PEB found him physically unfit due to lumbosacral sprain.

7.  The evidence shows he concurred with the PEB findings and recommendation.

8.  There is insufficient evidence to show his unfitting condition was improperly rated by the PEB in 2008.  Therefore, there is no basis for granting the applicant's request to increase his disability rating.

9.  The rating action by the VA does not demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

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 to amend the decision of the ABCMR set forth in Docket Number AR20130004757, dated 16 January 2014.



      _____________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)                                         AR20140006526



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ABCMR Record of Proceedings (cont)                                         AR20140006526



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