IN THE CASE OF:    

		BOARD DATE:  24 September 2015	  

		DOCKET NUMBER:  AR20150000290 


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 removed from the Temporary Disability Retired List (TDRL) on 14 December 1994 and retired by reason of permanent disability in the rank/grade of specialist (SPC)/E-4 vice discharged on that date with entitlement to severance pay for a disability rated at 10 percent (%) disabling.

2.  The applicant states he should not have received a rating of 10% from the Army medical evaluation board (MEB) when the Department of Veterans Affairs (VA) granted him 100% for service-connected disabilities.  He is a Gulf War Veteran with Gulf War Syndrome.  His MEB should be reevaluated for permanent disability with his rank restored.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), orders, a letter, and a VA Rating Decision, 

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 13 September 1988 and he held military occupational specialty (MOS) 11B (Infantryman).  On 5 May 1990, he was assigned to Headquarters Service Battery (HSB), 19th Field Artillery, Germany.  On 22 May 1990, he was promoted to the rank of SPC.

3.  On 7 December 1990, he was assigned to the 226th Supply and Service Company, Germany.  He subsequently deployed with his unit to Southwest Asia in support of Operation Desert Shield/Storm.  In or around February 1991, while deployed, he was evaluated by a psychiatrist and was diagnosed with bipolar disorder, manic.  He was subsequently medically evacuated to Germany and placed on medication.  

4.  While in Germany, he stopped taking his medication, had a relapse, and was readmitted to the hospital.  On 7 April 1991, he was medically evacuated and assigned in a patient status to William Beaumont Army Medical Center, Fort Bliss, TX. 

5.  On or about 5 May 1991, the applicant was transferred to the Medical Holding Company (MHC), Fort Campbell, KY, to be near his home of record.  Upon arrival at Fort Campbell, he no longer exhibited any signs of bipolar disorder.  In July 1991, an MEB was initiated and confirmed his diagnosis of bipolar disorder, manic, with psychotic features and mixed personality traits.  The initial MEB is not available for review for this case; however, it appears he was found not to be fit for duty due to bipolar disorder and subsequently an informal physical evaluation board (PEB) also found he was not fit for duty due to bipolar disorder.  

6.  The applicant non-concurred with the PEB findings, contended he was fit for duty, went to a civilian psychiatrist and received a clean bill of health, and elected for a formal PEB.  He was subsequently assigned in MOS 11B to the 1st Battalion, 327th Infantry Regiment, Fort Campbell.  

7.  On 5 December 1991, a formal PEB convened and, after reviewing the medical and personnel evidence of record and considering the physical requirements for reasonable performance of duties required by the applicant’s grade and MOS, the PEB found he was fit for duty within the limits of his profile.  On 5 December 1991, he concurred with the PEB findings.  

8.  On 29 February 1992, he was transferred from Vanderbilt University Medical Center (VUMC), Nashville, TN, and admitted to Blanchard Army Community Hospital (BACH), Fort Campbell.

9.  On 5 March 1992, he was discharged from BACH.  In an MEB Narrative Summary (NARSUM), dated 5 March 1992, the treating psychiatrist stated, in part:

	a.  The applicant had been diagnosed with bipolar disorder while deployed (unrelated to his deployment) and was eventually medically evacuated to BACH.  An MEB was initiated; however, he discontinued his medication on his own, appealed the MEB findings, and was returned to duty.  He denied any significant signs or symptoms of manic behavior and would only admit to ingesting 20 to 25 “uppers” (caffeine pills).  This made him quite ill with multiple vomiting episodes and he finally went to the emergency room (ER) at VUMC. 

   b.  In the ER, he was noted to be hyper-talkative with a bright facial expression, pressured speech, and intense and euphoric effect.  His mood was “wonderful,” thought process was with flight of ideas, and his thought content was notable for positive delusions or perceptual abnormalities.  He noted he had plans to become the Vice President of the United States and did not believe he had a mental illness.  He was transferred to Psychiatry Services, BACH, for further evaluation.
   
   c.  His ex-wife and his roommate indicated he had been in his normal state of health until 2 to 3 weeks ago.  In the days prior to his admission, he was moving around continuously and was hard to keep track of.  He stated his car broke down in Nashville and he had to spend a few days in a motel; however, this was apparently fabricated in order to stay away from work for several days.  The hotel manager stated he was trying to rent the entire 6th floor of the motel, passing out business cards to everyone in the motel, asking for resumes for a new business, and stated he was going to become the Vice President of the United States.
   
   d.  When he was admitted to the hospital, he was found to have two passports, two drivers’ licenses, two control cards, and other credit cards belonging to other people.  It was later realized that he had significant financial and administrative problems resulting from his behavior.  He denied any alcohol or drug use.  He had a past medical history of chronic sinusitis that was treated with medication.

	e.  He stated he felt he was “too high speed for the Infantry” and was interested in, and was in the process of, applying for Special Forces as a medic.  He had received multiple counseling statements and at least one Aritcle15 at his unit in the recent weeks to months.  The Article 15 was for when he bought gas at a station that did not accept checks.  He argued with the manager about accepting the check and then left after giving them just a check. 

	f.  During the mental status examination, he was overtly cooperative; however, he stated he knew the examiner believed he had bipolar disorder and he did not agree.  His grooming was normal, he had no bizarre or unusual behavior, his mood was fine, affect was bright, and thought content was without suicidal or homicidal ideation.  His thought process was no longer pressured, his insight was poor, his judgement was impaired by his recent history, but was unimpaired during the interview.  The physical examination, including the neurologic examination, was unremarkable (emphasis added).  His bloodwork, renal profile, hepatic profile, and urine drug screen were all normal.  His electrocardiogram (EKG) and chest x-ray were unremarkable.  He was prescribed lithium and discharged when he no longer showed evidence of a manic episode on the lithium treatment.

	g.  He was diagnosed with bipolar disorder, manic, moderate and recurrent, and a personality disorder with narcissistic and antisocial features.  He was released with duty restrictions of assignment only where psychiatric services were available.  It was his opinion (the psychiatrist’s) that the applicant continued to be medically unfit for further active duty service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) and his case was being referred to an MEB.  He was mentally competent, able to manage his finances, and was currently not a danger to himself or others.  It was recommended he continue in supportive pharmacotherapy and psychotherapy.

10.  His record shows he was reduced to the rank of private first class (PFC)/E-3 on 9 March 1992 and to private (PV2)/E-2 on 22 March 1992, presumably as a result of Article 15 actions.  The Article 15’s are not available for review with this case.  On 23 March 1992, he was assigned to the MHC, Fort Campbell.

11.  On 26 March 1992, he was given a permanent profile of 4 in the S (Psychiatric) category of the PULHES for bipolar disorder.  The profile only restricted his assignment to places where psychiatric services were available.

12.  On 6 May 1992, an informal PEB convened and confirmed his unfitting condition of bipolar disorder, manic, moderate and recurrent.  His condition of personality disorder was not found to be unfitting and was not rated.  The DA Form 199 (PEB Proceedings), dated 6 May 1992, in part, stated his bipolar disorder was manifested by a history of depressive and full manic symptomatology without clearly documented psychotic features, rated as mild.  He twice on his own stopped his prescribed medications.  He was mentally competent and able to manage his finances.  The PEB found his medical impairment prevented him from reasonably performing the duties required by his grade and MOS.  He was rated under VA Schedule of Rating Disabilities (VASRD) code 9206 for mild bipolar disorder and assigned a 10% disability rating.  The PEB found he was physically unfit, recommended a rating of 10%, and separation with entitlement to severance pay if otherwise qualified.  

13.  In an addendum to the MEB NARSUM, dated 13 May 1992, the applicant’s treating psychiatrist, BACH, Fort Campbell, in part, stated:

	a.  The addendum was being generated in an attempt to rectify the second decision of the PEB regarding the applicant.  In July 1991, a PEB was generated for the applicant with a diagnosis of bipolar disorder, manic, with psychotic features and mixed personality traits.  As is typical for a new onset of bipolar disorder, he had a period of time in which he had a significant impairment in social and occupational judgement and showed remarkably poor insight into his contribution to a series of adverse events resulting from his illness and blamed others for the difficulties that ensued.

	b.  Since he had no insight into the existence of his illness despite attempts to educate him, he proceeded to use the appeal process to reverse the decision of the PEB.  This was done successfully through the use of a civilian psychiatrist who had no awareness of the applicant’s prior condition and no access to appropriate medical records.  Between episodes of mania and depression, patients typically have a baseline mental status that is unremarkable and so a civilian psychiatrist would evaluate the patient during such a time and find no abnormality.

	c.  Remarkably, [in December 1991] the PEB apparently listened to a civilian psychiatrist over three military psychiatrists and found him fit for duty despite his diagnosis.  Of course, after being returned to duty, he relapsed again and had to be hospitalized.  The most recent PEB findings of "slight" impairment in social and industrial adaptability flies in the face of the recommendations by military psychiatrists.  Such a finding is not only inconsistent with standard practice throughout the military, it is exceptionally counter intuitive given the applicant?s three hospitalizations for severe psychiatric decompensation in the course of less than a 2 year period.  

14.  On 21 August 1992, an informal PEB convened and confirmed the applicant’s unfitting condition of bipolar disorder, manic, moderate and recurrent.  His condition of personality disorder was not found to be unfitting and was not rated.  

15.  The DA Form 199, dated 21 August 1992, in part, stated his bipolar disorder was manifested by a history of depressive and full manic symptomatology without clearly documented psychotic features, rated as definite.  He was mentally competent and able to manage his finances.  The case was informally reconsidered based on additional review of the medical record of evidence and superseded the DA Form 199, dated 6 May 1992.  The PEB found his medical impairment prevented him from reasonably performing the duties required by his grade and MOS.  His condition was found not to be sufficiently stable for final adjudication.  He was rated under VASRD code 9206 for bipolar disorder and assigned a 30% temporary disability rating.  The PEB found he was physically unfit and recommended he be placed of the TDRL with periodic future examinations.  

16.  The applicant subsequently nonconcurred with the PEB findings and recommendation.  However, the PEB was approved by the Secretary of the Army on 1 September 1992.

17.  He was retired from active duty on 16 October 1992 in the rank of PV2 by reason of temporary disability and placed on the TDRL.  Item 12h (Effective Date of Pay Grade) of the DD Form 214 he was issued contains the entry 22 March 1992.

18.  On 26 October 1994, based on a TDRL examination, a PEB was conducted and found his condition was stable and his bipolar disorder was in partial remission.  It was found to be a mild impairment and was rated at 10% as, although continued daily medication and quarterly therapy was indicated, it had not prevented his adequate social and job adjustment in civilian life.  The PEB recommended his separation with entitlement to severance pay with a 10% disability rating.

19.  In a rebuttal to the PEB, dated 31 October 1994, the applicant, in part, stated he went before the PEB on 26 October 1994 in order to be found fit for duty.  He felt the board did not have enough information to determine his fitness to serve as an 11B.  He requested his case be returned to the U.S. Army Physical Disability Agency (USAPDA) and forwarded for a psychological evaluation and work-up.  He wanted to be seen by a doctor with an open mind.  Apparently, unless a doctor found that his bipolar disorder was in remission, he had no way of reentering the Army in MOS 11B.  He did not want the severance pay; he wanted to serve his country.

20.  On 21 November 1994, the PEB was approved by the Secretary of the Army.  Orders D240-12, dated 14 December 1994, issued by the U.S. Army Total Personnel Command, removed him from the TDRL and discharged him from the Army effective 14 December 1994 with a disability rating of 10% and entitlement to severance pay.

21.  The applicant provides a VA Rating Decision, dated 30 January 2013, wherein, in part, it shows he was granted service-connected disability rated at:

* 40% for fibromyalgia, claimed as joint pain, headaches, and muscle pain; effective 22 June 2012
* 40% for chronic fatigue syndrome, also claimed as headaches, neuropsychological symptoms, and muscle pain; effective 22 June 2012
* 30% for irritable bowel syndrome, also claimed as gastrointestinal symptoms; effective 22 June 2012
* 30% for sleep disturbance; effective 22 June 2012
* 10% for bilateral tinnitus, previously addressed as tinnitus in the left ear; effective 22 June 2012
* 10% for rhinitis, claimed as respiratory symptoms; effective 16 August 2012
* 0% for sinusitis, claimed as respiratory symptoms
* 0% for acne with folliculitis, additionally claims as skin condition.

22.  This VA Rating Decision also shows the VA determined the following conditions were not related to his military service and service-connected was denied for:

* bilateral hearing loss, there was no link found between his hearing loss and his military service
* post-traumatic stress disorder, the evidence did not show a current diagnosed disability
* weight loss, the evidence did not show a current diagnosed disability
* left knee tendonitis, no new evidence submitted to substantiate the claim
* pyterigium, no new evidence submitted to substantiate the claim
* personality disorder, no new evidence submitted to substantiate the claim
* cardiovascular symptoms, the evidence did not show a current diagnosed disability

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  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.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  

24.  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 VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

25.  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.  

26.  VASRD code 9206, at the time, pertained to mental conditions to include bipolar disorder.  A rating of 10% is assigned in mild cases when the individual is able to care of himself and will very rarely need to be hospitalized.  If required to take medication, the medication satisfactorily keeps symptoms under control.  The individual will be employable and will rarely have problems at work that are caused by the mental condition.  The individual will have functional relationships with only occasional, mild stresses that are caused by the condition.  

27.  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.

28.  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 in the Army rating.  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 confirms that on 21 August 1992, a PEB was held.  The PEB evaluated all the available and appropriate evidence and found the applicant was unfit due to bipolar disorder that was moderate and recurrent and prevented him from performing his military duties.  This was the only condition that was found to have prevented him from performing his duties.  As his condition was not stabilized, the PEB assigned him a temporary 30% disability rating and recommended he be placed on the TDRL.  He was retired on 16 October 1992 by reason of temporary disability and he was placed on the TDRL.  His DD Form 214 correctly shows his rank as PV2, the rank he held at the time.

2.  On 26 October 1994, based on a TDRL examination, the PEB found his condition was stable and his bipolar disorder was in partial remission.  It was found to be a mild impairment and was rated at 10% as, although continued daily medication and quarterly therapy was indicated, it had not prevented his adequate social and job adjustment in civilian life.  The PEB recommended his separation with entitlement to severance pay with a 10% disability rating.  Although he disputed the findings and contended he was fully fit for duty at that time, the PEB was subsequently approved.  On 14 December 1994, he was removed from the TDRL and discharged with a 10% disability rating and entitlement to severance pay.

3.  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 evidence of record shows the applicant was properly rated at 10% for bipolar disorder in October 1994 that was stable and found to be a mild impairment.  There is no evidence in his available records to support a higher rating for his condition at that time.  Since this rating was less than 30%, by law he was only entitled to severance pay.

4.  His physical disability evaluation was conducted in accordance with law and regulation.  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 at the time of his removal from the TDRL.  He only submitted evidence that shows after he was discharged he was subsequently treated for and/or diagnosed with other medical conditions or disorders that did not exist or were not unfitting at the time of his PEB in October 1994.

5.  While he may have been rated at 100% disabled by the VA after his discharge from the Army on 14 December 1994, a disability decision rendered by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical condition of a Soldier at the time of their discharge from active duty.  The VA may award ratings because of a service-connected disability that affects the individual's civilian employability.  In addition, he was not rated by the VA for bipolar disorder.

6.  In view of the foregoing, there is insufficient evidence upon which 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 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)                                         AR20150000290



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ABCMR Record of Proceedings (cont)                                         AR20150000290



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