IN THE CASE OF:  	  

		BOARD DATE:  15 September 2015	  

		DOCKET NUMBER:  AR20150000734 


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 that his discharge order be voided and that he be retired by reason of permanent disability. 

2.  The applicant states, in effect, that he was diagnosed and rated by the Department of Veterans Affairs (VA) with a 70 percent disability rating for post-traumatic stress disorder (PTSD) while he was still a member of his Army National Guard (ARNG) unit.  He believes an error occurred in the processing of his medical evaluation and he should have been retired by reason of permanent disability based on the 70 percent VA disability rating.  

3.  The applicant provides copies of his NGB Form 22 (Report of Separation and Record of Service), the results of his application to the Florida Army National Guard (FLARNG), his VA Rating Decision, a three-page letter from his counsel and his Informal Physical Evaluation Board (PEB) Proceedings.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s discharge be voided, that his diagnosed condition of PTSD be deemed to be unfitting and that he be retired by reason of permanent disability.

2.  Counsel states, in effect, that the applicant was diagnosed by the VA as having an unfitting condition of PTSD while he was still serving in the FLARNG and was given a service-connected disability rating of 70 percent.  However, the Army gave the applicant a disability rating of 10 percent for his left wrist condition and did not determine that his PTSD was unfitting.  Accordingly, he was discharged with severance pay instead of being medically retired.

3.  Counsel provides a three-page letter explaining his arguments.

CONSIDERATION OF EVIDENCE:

1.  A copy of his physical profile and medical evaluation board (MEB) are not filed in his official military personnel record.  Therefore, there is no reference date to show when the applicant entered the IDES.  

2.  The applicant was serving as a military policeman in the rank of sergeant in the FLARNG when he received a service-connected disability rating from the VA on 19 August 2013 with an effective date of 1 February 2013.  The applicant was granted a 70 percent disability rating for PTSD, 10 percent for left wrist strain status post-fracture and 0 percent for left wrist scars post-surgery.  This rating decision shows the left wrist strain status post fracture was referred earlier to the PEB via the Integrated Disability Evaluation System (IDES). 

3.  On 24 September 2013, an informal PEB was convened at Fort Sam Houston, Texas under the IDES which determined that the applicant had an unfitting condition of left wrist strain, status post fracture and warranted a disability rating of 10 percent.  The PEB considered the MEB diagnoses numbers 2 through 13 which included PTSD.  The MEB found the applicant met retention standards for all diagnoses to include PTSD and agreed that those conditions were not unfitting.  The PEB recommended that the applicant be discharged with severance pay.

4.  On 16 October 2013, the applicant concurred with the PEB findings and recommendations and waived a formal hearing.  He did not request reconsideration of his initial VA ratings (unknown date).

5.  On 14 November 2013, the U.S. Army Physical Disability Agency issued Orders D318-02 that honorably discharged the applicant from the ARNG effective 30 December 2013.  He was authorized disability severance pay in pay 
grade E-5 based on 8 years and 4 days of service.  His percentage of disability was 10 percent and resulted from a combat-related injury which was incurred in a combat zone.  

6.  Accordingly, the FLARNG honorably discharged the applicant also on 30 December 2013 with a 10% disability rating. 

7.  On 21 November 2014, officials at the FLARNG in a memorandum to the applicant indicated there was no evidence the applicant had a mental health condition while he was serving in the FLARNG or any indication that a line of duty determination was made for such a condition and advised the applicant to apply to the Board.

8.  A review of the applicant’s Noncommissioned Officer (NCO) Evaluation Reports show he received essentially maximum ratings on his evaluations (“Success” or higher ratings).  A review of his evaluation reports failed to show any indication that he was unable to perform any of his assigned duties.  Additionally, there is no evidence to show that a determination was made by military medical personnel that the applicant had an unfitting mental health condition prior to his discharge.  Additionally, his records show that he deployed to Kuwait/Iraq during the period 20 May 2003 through 13 June 2004 and to Afghanistan during the period 11 June 2010 through 3 April 2011.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  The presumption of unfitness may be overcome if the evidence established that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of the disability.  There must be a causative relationship between the less than adequate performance and the unfitting medical condition or conditions.

10.  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, does not 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.

11.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of a PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on changes in the disability.

12.  National Guard Regulation 600-200, paragraph 8-26 j(1) 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.  Commanders who do not recommend retention will request the Soldier’s discharge.

DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, it appears the applicant was properly discharged from the FLARNG due to being medically unfit for retention in accordance with the applicable laws and regulations with no indication of any violations of any of his rights.  

2.  While the applicant was rated as 70 percent service-connected for PTSD months prior to his involuntary discharge, his record shows no indication that he was unable to perform his military duties prior to his discharge due to a mental health condition or that he had a mental health condition that did not meet medical retention standards.  

3.  While the applicant contends he should have been medically retired by reason of permanent disability due to PTSD, there appears to be no evidence of record and no evidence provided by the applicant to show his diagnosed condition of PTSD rendered him unfit for service.  In fact, the PEB found his PTSD did meet retention standards.  What is not known is the date(s) the applicant entered into the IDES system.  

4.  Additionally, the applicant’s PEB was conducted under the IDES and the applicant concurred with the findings and recommendations knowing full well of his initial VA rating and the fact that he could have appealed the PEB decision. 


5.  The fact that the VA, in its discretion and after its initial evaluation, has awarded the applicant a disability rating for PTSD is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department of the Army.  It is a mere coincidence that the second VA rating decision showing his PTSD service-connected disability is within a few months of the PEB decision and subsequent discharge. 

6.  Accordingly, there is an insufficient evidentiary basis for granting him the requested relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20150000734





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ABCMR Record of Proceedings (cont)                                         AR20150000734



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