MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

BOARD DATE:           1 February 2001                  
	DOCKET NUMBER:   AR2000045137

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful 		Chairperson	
	Mr. James E. Anderholm 		Member	
	Ms. Barbara J. Lutz 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Physical disability retirement with a 40 percent disability rating.  

APPLICANT STATES:  The applicant made no statement, but deferred to counsel. 

COUNSEL CONTENDS:

That the applicant was incorrectly removed from the temporary disability retirement list (TDRL), by the Physical Evaluation Board (PEB), and the PEB did not properly apply regulatory standards in determining the percentage of his disabilities.

Counsel states that the applicant was removed from the TDRL and his rating for his mental disabilities was reduced from 30 percent to 10 percent.  

Counsel states that in the summer of 1994 the applicant was on leave in Moscow when he was assaulted and severely beaten, damaging his pancreas.  Secondary to that assault he developed post traumatic stress disorder (PTSD).   
A medical evaluation board (MEB) convened on 20 September 1995.  The psychiatric narrative summary (an addendum to that board) shows a GAF (Global Assessment of Functioning) of 50-55 in Axis V of the psychiatrist’s diagnosis.  He was found unfit for duty by a PEB on 1 February 1996, and placed on the TDRL with a 40 percent disability rating, 30 percent for PTSD and           10 percent for low back pain.   

A medical examination in September 1997 revealed a GAF of 54 in Axis V.  The applicant was continued on the TDRL.  He was reevaluated in April and May of 1999, and the GAF evaluation was 70.  Counsel states that the psychiatrist stated in his narrative summary that it was strongly recommended that the applicant be placed on the permanent disability retirement list (PDRL).

On 27 January 2000 the Fort Belvoir Mental Health provided an updated diagnosis to the PEB, showing that the applicant’s GAF was 60 (current).  

The applicant submitted a rebuttal to an informal PEB determination that his mental disability was 10 percent; however, the formal PEB also indicated a        10 percent mental disability, and a 10 percent disability for lower back pain.  The board’s rationale was that his condition had improved. 

Counsel states that the DOD instructions provide a 30 percent disability rating for mental disabilities under certain criteria, and that he meets these criteria.  He states that the applicant’s GAF has never been over 70 since the incident in 

Moscow, and that apparently no consideration was given to his major depressive disorder.  Counsel states that the DOD instructions also state that conditions newly diagnosed during TDRL period examinations shall be compensable when the condition is unfitting and the condition was caused by the condition for which the member was placed on the TDRL.  He states that the major depressive disorder is derived from the PTSD, and its effects combined with the PTSD substantiate a determination for a 30 percent disability rating.  He states that the psychiatric department at Walter Reed Army Medical Center (WRAMC) strongly recommended that the applicant be placed on the PDRL.  He went on to say that a psychiatrist was not represented on the PEB and without that expertise it is difficult to understand how a psychiatrist’s opinion could be overridden.  

Counsel states that the applicant served on active duty for 14 years, 11 months, and 7 days, one month from early retirement when placed on the TDRL.  Separation pay was an injustice and an inequity.  Relief should be granted.      

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant’s complete military records are not available; however, it appears that he entered military service in 1979, completed training and in 1981 was a cadet candidate at Fort Monmouth, New Jersey.  A copy of his enlisted record shows that he attended the military academy at West Point for two years, but did not graduate.  However, he continued his military service and became a Russian linguist.  He was promoted to Staff Sergeant on 1 February 1989.  His basic active service date (BASD) is 5 May 1981.   

An MEB narrative summary indicates that the applicant was on leave in Moscow in late July 1994 and was the victim of an assault, suffering severe blunt abdominal trauma to his abdomen.  He was initially treated in a Moscow hospital, where he underwent exploratory laparotomy for an apparent acute abdomen and hypotension.  He was found to have hemoperitoneum, and rupture of the body of the pancreas in addition to a 2 cm laceration to the pancreas.  He was transferred to Landstuhl Army Hospital, underwent a second laparotomy, and then transferred to WRAMC for further care.  He underwent surgery and post operative treatment and was discharged from the hospital in November 1994.  His condition was reevaluated at WRAMC in June 1995 and he received evaluations from orthopedics, neurology, ENT, and psychiatry services.  The assessments from those evaluations were chronic low back pain without need for surgery, deviated septum possibly needing elective repair, and PTSD with recommendations for continued outpatient counselling in addition to continued use of medications.      

The department of psychiatry addendum to the MEB summary diagnosed the applicant’s condition as PTSD, chronic, delayed onset, manifested by recurrent intrusive thoughts of the event, distress psychologically at simlar events (TV violence, the news), avoidance of noise, loud voices and crowds and hence diminished social activities, restricted affect and a feeling of detachment (no friends at all made at new post after 4 months), difficulty concentrating (shifts to thinking of trauma), and an exaggerated startle reflex with spontaneous tears.  His impairment for military duty was marked and his impairment for social and industrial adaptability was considerable (Axis I).  His psychosocial and environmental problems (Axis IV) were considered to be severe.  The applicant’s overall level of functioning, based on the GAF scale, which was 90 one year ago before the attack, was determined to be 50-55 (Axis V).  The psychiatrists considered the applicant to be medically unacceptable [for military service], and recommended that he receive a medical discharge.  They indicated that it was expected that his condition would improve, but relapses were possible.   

On 20 September 1995 a MEB diagnosed the applicant’s condition as pancreatic injury secondary to blunt trauma; sepsis, resolved; pancreatic and intra-abdominal abscess, resolved; post traumatic stress disorder; chronic low back pain, prior injury; deviated septum, prior injury; and right small toe paresthesia, due to epidural in Moscow.  The MEB referred the applicant to a PEB.

On 23 October 1995 a PEB determined that his medical condition, PTSD and low back pain due to blunt trauma, prevented satisfactory performance of duty in his grade and specialty; but that those conditions had not stabilized to the point that a permanent degree of severity could be determined.  The board recommended that he be placed on the TDRL with a 40 percent disability rating, 30 percent for PTSD, and 10 percent for low back pain.  The applicant did not concur and demanded a formal hearing.

On 1 February 1996 a formal PEB reached the same conclusions and made the same recommendation as those made during the 23 October 1995 PEB.  The applicant acknowledged that he had 10 days to file an election and a written rebuttal, and that failure to do so would indicate that he concurred with the findings of the formal board and that his case would be forwarded for final processing.  A 28 February 1996 memorandum indicates that the applicant did not file an election or a written rebuttal.

On 8 March 1996 the formal PEB proceeding was revised to change the applicant’s diagnosis of low back pain, VA code 5299 and 5295, to blunt abdominal trauma, with the same VA codes.  The percentage of disability was not changed.   

The applicant was placed on the TDRL effective on 9 April 1996.  He had          14 years, 11 months, and 4 days of service.

The applicant underwent a TDRL evaluation in November 1997.  The examining physician indicated that he appeared to be in fair condition with left-sided abdominal wall weakness and a fairly pronounced disability on bending sideways to the left along with troublesome frequent diarrhea and chronic abdominal pain and occasional pruritus.  That doctor stated that his condition was most likely to be stable and that the diarrhea and abdominal pain were most like to resolve with proper therapy.   The examining psychiatrist indicated that the applicant had improved but continued to experience considerable distress.  He had, in the past two weeks, increased stress from recently moving in with his brother and working on their relationship.  He made an effort to be more sociable, but his interpersonal functioning was limited.  His current stressors included memories of the mugging, his recent move, desire for companionship and a family, school, digestive problems from the trauma, and planning a trip to Germany.  He had occasional suicidal and homicidal ideation without intent or plan.  He credited medicine and his psychotherapist with his progress.  The psychiatrist diagnosed his condition as PTSD and major depressive disorder, and indicated that his GAF was 60.  He stated that the applicant was medically unacceptable, but his condition appeared to be improving; however, he recommended that the applicant continue to receive psychiatric treatment.  The applicant agreed with the summary and recommendations.  On 22 December 1997 a PEB found that the applicant was physically unfit and that he be retained on the TDRL.

In April and May 1999 the applicant underwent a second TDRL evaluation.  The examining physician indicated that the applicant had a full range of motion of his back and that there was no visible or palpable deformity.  He was able to walk on his heels and toes, and lower extremity motor and reflex examination was normal.  Straight leg-raising was normal.  The doctor stated that the applicant was a full time student at American University and was also working part time as a stenographer.  His condition was diagnosed as status post compression fracture, L1.  He said that the applicant was having relatively low-grade symptoms and that further diagnostic testing was not indicated.  His back symptoms precluded him from resuming a physically active lifestyle.  He would probably be fit for retention with some profile restrictions.  Periodic reevaluation while on the TDRL was recommended.

The examining psychiatrist stated that the applicant had continued to improve since his last TDRL evaluation, but still suffered from symptoms secondary to major depression and PTSD, which had responded minimally to further medical and psychotherapeutic management.  The psychiatrist stated that although he attempted to increase his interpersonal functioning by marrying a casual acquaintance, it only resulted in further stressors, as his wife speaks minimal English.  He went on to say that although he has pursued employment, he has only been able to work part time.  His condition was diagnosed as PTSD and major depressive disorder (Axis I) with memory of trauma and interpersonal difficulties (Axis IV).  His GAF was evaluated as 70 (Axis V).  The psychiatrist stated that the applicant was medically unacceptable and that his condition appeared to be stable.  He was mentally competent and could handle his own financial affairs.  He had the capacity to understand the nature of and to cooperate in the PEB proceedings, and he was not considered dangerous to himself or others.  He stated that given the chronic nature of his two psychiatric illnesses and the stable course of the illnesses with periodic exacerbation, it was very unlikely that the diagnosis and/or prognosis would change.  He strongly recommended that the applicant be placed on the PDRL. 

The applicant did not agree with the TDRL summary and recommendations, but at the same time stated that he agreed with the psychiatry service and orthopedic surgery service summaries and recommendations.  He did, however, state that he still had abdominal pain when he turned sharply or to any extreme, and constantly watched his diet to eliminate all fat, because he would get painful cramps and diarrhea.  He stated that he had to give up running because of the pain.  He took exception to the findings from his original PEB stating that one board member never actually saw his other scar showing that his muscles were cut on the left side of the abdomen.  He stated that every doctor he has visited stated that he would never get back the strength he once had. 

On 3 November 1999 the applicant was notified that a PEB had reviewed the report of his recent medical examination and recommended that he be removed from the TDRL.  That notification included a copy of the DA Form 199 (PEB Proceedings), which listed the findings and recommendations.  NOTE: The PEB proceedings are not available to this Board. 

On 15 November 1999 the applicant disagreed that his condition had improved so as to be ratable at less than 30 percent disability.  He stated that he did not believe the PEB could have found that his condition had improved without consulting his psychotherapist.  He did not agree with the disability percentages assigned to his major depressive disorder and his PTSD, nor with the findings of his physical disability related to the pancreatic trauma that he suffered.  He stated that if his disability was found to be only 20 percent, he requested to be retained on active duty.  He demanded a formal hearing. 

A 27 January 2000 letter to the PEB at WRAMC indicates that the applicant had been followed for medication management and psychotherapy at Woodbridge Mental Health, and his condition was diagnosed as major depressive disorder and PTSD (Axis I), medical conditions resulting from blunt trauma to abdominal area (Axis III), loss of physical health, recent marriage, school stress (Axis IV), and GAF of 60 (Axis V).  That letter indicates that the applicant had been compliant with treatment, and was taking daily medications.

On 1 February 2000 a formal PEB determined that the applicant was physically unfit because of PTSD with major depressive disorder, recommending a           10 percent disability rating; and because of low back pain, again recommending a 10 percent disability rating.  The board recommended a combined rating of    20 percent and that the applicant be separated with severance pay.  

In a rebuttal to the PEB the applicant provided a history of his injuries and his treatment, and his current physical and mental condition.  He stated that he has experienced short term memory loss, for which he has never been compensated. He stated that he has been on medication since January 1995 to treat his PTSD, and has continuously been in therapy since that time.  He stated that both his therapist and his psychiatrist agreed with the psychiatrist who evaluated him; however, both felt that his ability to function in society was more severe than the evaluation given, and that his GAF score should be 60.  He stated that his condition had improved, but he was still not close to who he was before, and that he would never regain his sense of self.  He stated that he has recurrent dreams and thoughts about the assault in Moscow.  He could not watch movie scenes showing a similar assault or hospital scenes that reminded him of his stay in the hospital.  He stated that he starts to panic when he is in a crowd, and that he stays at home most of the time.  He stated that his classes as American University are difficult enough without his memory loss, and now are even more difficult when he cannot remember sections of the instruction.  He stated that he experienced marital problems because of his PTSD.  He stated that since he retired, he worked two part-time jobs; however, he quit the first because of college and the work – his back was in constant agony.  Because he missed a day of work, he was not called back to his second job.  He stated that he would go back on active duty if he could; however, the Army found that he could not do so.  He stated that he lost a consulting job because of his disabilities, and that he would have difficulty finding a job and working the rest of his life. 	 

In a 24 February 2000 memorandum to the applicant, the PEB at WRAMC stated that his rebuttal contained no new substantive medical information not previously considered, and that the Board affirmed the decision of the formal hearing.  That memorandum informed the applicant that his industrial impairment for his 

psychiatric condition was minimal as evidenced by the fact that he was able to obtain an undergraduate degree and was currently involved in obtaining a masters degree; and that according to the examination summary he has continued to improve.  The memorandum indicated that the evaluation of his back impairment indicated that he was having relatively low grade symptoms, with full range of motion and no motor nor sensory deficits.  It indicated that although his pancreatic and abdominal trauma were significant, they were healed, and had to be rated on residuals, and there was no diagnosis that indicated residuals were found to be unfitting.  He was informed that his case file, including his rebuttal, would be forwarded to the Army Physical Disability Agency for review.   

On 28 February 2000 the Army Physical Disability Agency notified the applicant that his case file had been reviewed, and that agency had concluded that his case was properly adjudicated by the PEB.  The findings and recommendations of the PEB were affirmed. 

On 1 March 2000 the applicant was removed from the TDRL and discharged from the Army with a 20 percent disability rating.  

MILPER message 95-222 prescribes eligibility requirements and application procedures for early retirement for Regular Army enlisted soldiers for FY96, and states that the purpose of early retirement is to continue commitments to soldiers disadvantaged by the drawdown.  Early retirement is not an entitlement, and it will only be offered to soldiers who meet the strict eligibility requirements outlined in the message.  The FY96 program pertained to only those soldiers with a bar to reenlistment or who had signed a declination of continued service statement and had completed more than 18 years of active federal service on the requested retirement date; and to those promotable sergeants who met certain criteria.

Title 10, United States Code, section 1202, provides for the placement of a member on the Temporary Disability Retired List when the disability may be permanent.  Placement on the Temporary Disability Retired List requires that the member meet the criteria of Title 10, United States Code, section 1201.

Army Regulation 635-40 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

The VA Schedule For Rating Disabilities, General Rating Formula for Psychoneurotic Disorders, shows that disorders (such as PTSD) may be rated 100, 70, 50, 30, 10 or zero percent disabling. 
A 30 percent rating is described as appropriate when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people.  The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment.
A 10 percent rating is shown as appropriate for emotional tension or other evidence of anxiety productive of mild social and industrial impairment.
The term “Axis” refers to the use of the multiaxial system of evaluation outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM).  Axis I refers to clinical disorders and V codes (conditions not attributable to a mental disorder that are a focus of attention or treatment).  Axis II refers to personality disorders and mental retardation.  Axis III refers to general medical conditions.  Axis IV refers to psychosocial and environmental problems that may affect the diagnosis, treatment, and prognosis of mental disorders (Axes I and II).  Axis V refers to the global (overall) assessment of functioning (GAF).  Axis V is for reporting the clinician’s judgment of the individuals’ overall level of functioning.

The GAF scale may be particularly useful in tracking the clinical progress of individuals in global terms, using a single measure.  The GAF scale is to be rated with respect only to psychological, social, and occupational functioning.  Scale is reported on Axis V as follows:  “GAF=, “ followed by the GAF rating from              1 to 100, followed by the time period reflected in the ratings in parentheses, for example “(current),””(highest level in past year).” 

GAF scale 100-91 describes a person with “superior functioning in a wide range of activities … No symptoms.”  GAF 90-81, a person with “absent or minimal symptoms, good functioning in all areas … socially effective, generally satisfied with life, no more than everyday problems or concerns.”  GAF 80-71, a person, “if symptoms are present, they are transient and expectable reactions to psychosocial stressors; no more than slight impairment in social, occupational, or school functioning.”  GAF 70-61, a person with “some mild symptoms or some difficulty in social, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships.”  GAF 60-51, a person with moderate symptoms or moderate difficulty in social, occupational, or school functioning.”

The VA Schedule For Rating Disabilities, General Rating Formula for lumbosacral strain shows a 20 percent disability rating with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; and a 10 percent disability rating for characteristic pain on motion. 
Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was not one month from early retirement as counsel states.  Had he not been processed through the physical disability system, he still would not have been eligible for early retirement in FY96.  The applicant was a staff sergeant.  He did not meet the eligibility criteria.

2.  The medical evidence of record shows that the applicant underwent two medical evaluations since his placement on the TDRL in 1996, and that his physical and mental condition continued to improve since that time.  During the second TDRL evaluation, the examining physician stated that the applicant’s back symptoms were relatively low-grade, and that further diagnostic testing was not indicated, and that he would probably be fit for retention with some profile restrictions.  The examining psychiatrist stated that his condition had improved since his last TDRL evaluation, but that he still suffered from symptoms secondary to major depression and PTSD.  He went on to say that his GAF was evaluated as 70, that the applicant was medically unacceptable [for retention in the Army], and that his condition was stable.  He stated that it was very unlikely that his diagnosis and/or prognosis would change, and recommended that he be placed on the PDRL.

3.  Notwithstanding counsel’s contentions, the evidence shows that the applicant has been able to adjust socially, as shown by his educational endeavors, and that he has been able to find employment and to work, albeit not in back breaking labor. The Board also recognizes that at times there will be an honest difference of opinion among physicians as to a diagnosis, as shown by the information provided by Woodbridge Mental Health that his GAF was 60, whereas his GAF was judged as 70 by a psychiatrist on his second TDRL examination.  

4.  The Board notes that the applicant’s medical condition underwent numerous reviews - by a PEB and a review of his rebuttal; a formal PEB, a review of his rebuttal to the formal PEB findings; and a review by the Physical Disability Agency, which affirmed the findings and recommendation of the PEB.  The Board accepts the findings of those reviews.

5.  The medical evidence supports the determination that the applicant's unfitting condition was properly diagnosed at the time of his discharge. The applicant's disability was properly rated in accordance with the VA Schedule for Rating Disabilities.  He had completed less than 20 years of service and received a disability rating of less than 30 percent.  Therefore, his separation with severance pay was in compliance with law and regulation.

6.  Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of his request.   

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___jea___  ___lls___  ___bjl___  DENY APPLICATION

		 Karl F. Schneider
		    Deputy Assistant Secretary
  (Army Review Boards)

INDEX

CASE ID	AR2000045137	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000201	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.