BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140010651 


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 Order D2088-04, dated 29 March 2013, to show his disability resulted from a combat-related injury as defined by Title 26, U.S. Code 104 (26 USC 104) vice showing this was “Not Applicable.”

2.  The applicant states: 

   a.  He needs the order corrected for his combat injury related status because he has post-traumatic stress disorder (PTSD).  This is an injury that he believes occurred during his deployment and during his military career.  He feels his military career ended because it was related to this injury that doesn't allow him to serve or work without constant medical attention.  

   b.  When the letter from the Department of the Army, U.S. Army Physical Disability Agency (USAPDA) arrived at his home he had only 10 days to reply and he didn’t have enough time to submit his request.  The medical findings were not accurate and he believes his orders need to be corrected to show his PTSD was combat-related.

3.  The applicant provides a letter, a Medical Information Verification Report, and a Notice of Decision – Fully Favorable from the Social Security Administration (SSA).




CONSIDERATION OF EVIDENCE:

1.  Having had prior active service, the applicant enlisted in the Regular Army on 26 October 2005 and he held military occupational specialty 19D (Cavalry Scout).  He served in Iraq from 15 December 2007 to 2 October 2008.  He was promoted to the rank/grade of specialist (SPC)/E-4 on 1 May 2008.

2.  On an unknown date, a medical evaluation board (MEB) convened and found that the applicant had PTSD, a condition that was medically unacceptable and did not meet retention standards.  The MEB appears to have recommended his refferal to a physical evaluation board (PEB).  The applicant’s MEB proceedings and medical records are not available for review with this case.

3.  On 13 April 2009, an informal PEB convened and confirmed his unfitting disability of PTSD.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to his disability.  The PEB found his condition was not sufficiently stable for final adjudication and recommended he be placed on the Temporary Retired Disability List (TDRL) by reason of temporary disability with a rating of 50 percent (%).

4.  The DA Form 199 (PEB Proceedings), in part, shows he was rated under the Department of Veterans Affair Schedule for Rating Disabilities (VASRD) code 9411 for PTSD.  Item 8b (Disability Description) of this form stated, in part, his PTSD was attributed to traumatic combat stressors according to the psychiatric narrative summary.  However, the stressors could not be validated.  He had irritability, nightmares, social isolation, exaggerated startle response, and impaired interpersonal relationships.  He required psychotropic medication and psychotherapy.  There was no objective evidence that the applicant’s medical condition was a direct result of armed conflict.  His PTSD combat stressors could not be validated (emphasis added).

5.  His DA Form 199 also shows, in part, in item 10 - If retired because of disability, the board makes the finding that:

   a.  His retirement was not based on disability from injury or disease received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LOD during a period of war as defined by law.
   
   b.  The disability did not result from a combat-related injury as defined in 26 USC 104.

6.  On 21 April 2009, after being counseled as to the findings and recommendations of the informal PEB, the applicant waived his right to a formal hearing of his case and concurred with the PEB findings and determination.

7.  He was honorably retired on 29 June 2009 in the rank of SPC by reason of temporary disability and he was placed on the TDRL.

8.  On 12 March 2013, a PEB convened and determined his PTSD had not improved to the extent that he was unfit for duty and was considered to have stabilized at a degree of severity that was equal to greater than 30%.  The PEB recommend he be permanently retired with a rating of 50% for PTSD.

9.  Order D088-04, dated 29 March 2013, issued by the USAPDA, removed him from the TDRL on 29 March 2013 because of permanent physical disability and permanently retired him in his current rank.  This order shows, in part:  

* disability is based on injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law - Not Applicable
* disability resulted from combat related injury as defined in 26 USC 104 - Not Applicable

10.  The applicant provides:

	a.  A letter, dated 28 March 2014, wherein a hepatology nurse practitioner with the VA stated the applicant had been under her care for his chronic liver condition since 23 August 2010.  He had been undergoing medical treatment for this condition from 13 September 2013 and ending on 28 March 2014.

	b.  A Medical Information Verification Report, dated 18 September 2013, wherein a physician with the VA stated the onset of the applicant’s disability was 23 February 2010 and he was diagnosed with severe PTSD that was 100% service-connected by the VA.

11. The applicant also provides a Notice of Decision – Fully Favorable, dated 13 November 21013, wherein the SSA granted his request for disability and stated, in part:

	a.  The applicant had not engaged in substantial gainful activity from 20 December 2009, the alleged onset date.  He had the severe impairment of anxiety disorders including PTSD, depression, and anxiety; and the affective disorders of asthma and chronic liver disease.  
	b.  A VA Rating Decision, dated 30 May 2013, showed he received a permanent disability rating of 100% based on his diagnoses for PTSD, asthma, and hypertension. 

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

13.  Department of Defense Instruction 1332.38, subject:  Physical Disability Evaluation, states a physical disability evaluation shall include a determination and supporting documentation on whether the member's physical disability compensation is excluded from Federal gross income under 26 USC 104.  A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred a direct result of armed conflict, while engaged in hazardous service, under conditions simulating war, or caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows an informal PEB convened on 13 April 2009 and confirmed the applicant’s unfitting disability of PTSD.  The PEB found he was physically unfit due to this disability and recommended he be temporarily retired by reason of disability with a combined rating of 50%.  The PEB also found that there was no objective evidence that the applicant’s medical condition was a direct result of armed conflict and his PTSD combat stressors could not be validated.  The applicant concurred with the findings and recommendations of the PEB.

2.  He was retired from active duty on 29 June 2009 and placed on the TDRL.

3.  Order D088-04 removing him from the TDRL and retiring him by reason of permanent disability correctly show his disability did not result from a combat-related injury as defined in 26 USC104.  In order for this to be a "Yes" the disability/injury must have occurred as a direct result of combat.  

4.  The fact that his PTSD is service-connected is not disputed; however, his available record does not contain any evidence and he has not submitted any evidence that shows his PTSD was combat-related and that Order D088-04 was prepared incorrectly.  Therefore, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20140010651





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ABCMR Record of Proceedings (cont)                                         AR20140010651



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