IN THE CASE OF:    

		BOARD DATE:  14 April 2015	  

		DOCKET NUMBER:  AR20140019911 


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 records to show he received a permanent medical retirement instead of being honorably released from active duty on 24 November 2008.

2.  The applicant states:

* he received a 100-percent service-connected disability rating for post-traumatic stress disorder (PTSD) from the Department of Veterans Affairs (VA)
* he knows his PTSD due to his combat tour in Afghanistan is permanent and it is not likely to improve
* he suffered emotionally, physically, and financially for over 6 years
* a physical evaluation board (PEB) was initiated by his unit but he reached his end of term of service (ETS) prior to being promptly and properly discharged with a permanent medical retirement

3.  The applicant provides:

* letter from the National Personnel Records Center (NPRC), dated 25 April 2014
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter from the VA, dated 25 April 2014
* letter from the Social Security Administration, dated 3 November 2014
* two VA Rating Decisions, dated 24 March 2010 and 30 May 2012

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 Pennsylvania Army National Guard (PAARNG) on 27 October 2005.

3.  PAARNG Orders 302-118, dated 29 October 2007, show the applicant was ordered to active duty in support of Operation Enduring Freedom (OEF) on 3 December 2007 for a period not to exceed 400 days.

4.  On 24 November 2008, he was released from active duty.

5.  The PAARNG Medical Detachment memorandum, dated 11 March 2009, subject:  Medical Statement on National Guard Bureau (NGB) 22 (Report of Separation and Record of Service) Concerning Unresolved Medical Issues, shows personnel responsible for the applicant's separation documents were directed to include the following statement on his NGB Form 22:  "Soldier issued permanent profile prior to ETS/discharge for unresolved medical issues.  These medical issues must be addressed for future service consideration."

6.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 3 June 2010, shows the applicant was evaluated for PTSD.  The form shows in:

* item 5 (Accident Information) – 3 December 2007, 0800 hours, Afghanistan
* item 15 (Details of Accident or History of Disease) – Condition is a result of cumulative combat experience rather than one specific
* item 22 (Individual Was on) – Active Duty
* Item 30 (Details of Accident – Remarks) –

* Soldier served in support of OEF from 2007-2008
* Condition is not the result of one specific event but rather due to cumulative combat experiences while deployed to Afghanistan
* Soldier has been diagnosed for a condition identified in accordance with Secretary of Defense Post-Deployment Health Re-Assessment Directive

7.  On 10 January 2011, the Chief, Personnel Division, NGB, determined the applicant's condition was incurred in the line of duty (LOD).

8.  PAARNG Orders 299-1046, dated 26 October 2011, discharged the applicant from the PAARNG and assigned him to the U.S. Army Reserve Control Group (Annual Training) effective 26 October 2011.

9.  The applicant's NGB Form 22 shows he was honorably discharged on 26 October 2011 by reason of expiration of active status commitment in the Selected Reserve under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-36n.  Item 18 (Remarks) of this form shows:

* Soldier issued permanent profile prior to ETS/discharge for unresolved medical issues
* these medical issues must be addressed for future service consideration
* flagged for Army Physical Fitness Test – 1 November 2009
* flagged for weight control program – 1 November 2009

10.  The applicant provided:

	a.  a letter from NPRC which forwarded the applicant's DD Form 214;

	b.  a copy of his VA Rating Decision, dated 24 March 2010, that shows he received a combined 70-percent disability rating as follows:

* PTSD with alcohol dependence – 50 percent
* status post-left lateral malleolus ankle fracture – 20 percent
* tinnitus – 10 percent
* dermatographism (claimed as skin rashes) – 10 percent

	c.  a copy of his VA Rating Decision, dated 30 May 2012, that shows his rating for PTSD was increased to 100 percent effective 26 August 2010;

	d.  a letter from the VA, dated 25 April 2014, explaining his benefits; and

	e.  a letter from the Social Security Administration, dated 3 November 2014, explaining his social security benefits.

11.  His records are void of and he failed to provide evidence showing he was found unfit for military service.

12.  Coordination with the U.S. Army Physical Disability Agency (USAPDA) revealed the applicant was not processed through the Army Physical Disability Evaluation System (PDES).

13.  National Guard Regulation 600-200, chapter 8, prescribes the policies and procedures for separation of enlisted personnel by appropriate State authorities.  Paragraph 8-26j(1) provides for the separation of enlisted personnel for medical unfitness for retention.  It provides that commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501 (Standards of Medical Fitness) and National Guard Regulation 40-501 (Standards of Medical Fitness – ARNG).  Commanders who do not recommend retention will submit a request for the Soldier's discharge to the State Adjutant General.

14.  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 or her office, grade, rank, or rating.  Paragraph 4-24b explains the final disposition of a PEB after review by the USAPDA.  It states that based upon the final decision of the USAPDA, retirement orders are published, or other disposition action is taken, as follows:

	a.  permanent retirement for physical disability (Title 10, U.S. Code, section 1201 or 1204);

	b.  placement on the Temporary Disability Retired List (Title 10, U.S. Code, section 1202 or 1205);

	c.  separation for physical disability with severance pay (Title 10, U.S. Code, section 1203 or 1206);

	d.  separation for physical disability without severance pay (Title 10, U.S. Code, section 630, 12681, 1165, or 1169);

	e.  transfer of a Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer to the Inactive Reserve on the Soldier’s request (Title 10, U.S. Code, section 1209);

	f.  separation for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence (Title 10, U.S. Code, section 1207);

	g.  release from active duty and return to retired status of retired Soldiers serving on active duty who are found physically unfit; or

	h.  return of the Soldier to duty when he or she is determined physically fit.

15.  The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, rank, and grade.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

16.  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 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.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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 suffered from PTSD as a result of cumulative combat experiences while deployed to Afghanistan.  His condition was determined to be in the LOD and he was assigned a permanent physical profile.  However, he was not found unfit for military service or referred to the PDES.  Therefore, he was not considered by a medical evaluation board (MEB).  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

2.  The Army must find that a Soldier is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.  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.  In this case, it appears that the applicant was appropriately honorably separated in 2011 for completion of his service.

3.  An award of a VA rating does not establish error in the rating assigned by the Army's disability evaluation system.  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 awards ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.

4.  The applicant did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20140019911



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ABCMR Record of Proceedings (cont)                                         AR20140019911



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