BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150016865 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150016865 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. BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150016865 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, reconsideration of his previous request for referral to the Army Physical Disability Evaluation System (PDES). 2. The applicant states that he started his medical retirement process on 12 September 2001 with the Office of the Surgeon General (OTSG) to determine if he met medical retention standards. However, he was under mandatory severe care by the Department of Veteran Affairs (VA) for his service-connected post-traumatic stress disorder (PTSD) and they had possession of his psychiatric records, meaning the OTSG could not obtain the records until the VA completed their evaluation and disability determination. His PTSD made him unable to deal with the process. In essence, upon review of his psychiatric records along with the 100-percent permanently and total disabled rating by the VA, all regulations support that he would have been granted a medical retirement. Just as important to note, the Social Security Administration (SSA) has also found him totally and permanently disabled due to PTSD. 3. The applicant provides: * 2 DA Forms 3349 (Physical Profile) * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 2 April 1998 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), ending 1 May 1999 * VA Rating Decision, dated 10 January 2000 * VA memorandum, date 3 February 2000 * PTSD treatment memorandum, dated 15 June 2000 * Psychiatric treatment memorandum, dated 18 September 2000 * Orders D-11-151026, dated November 2001 * Disability Reconsideration memorandum, dated 14 May 2001 * VA memorandum, dated 24 May 2001 * Office of Personnel Management (OPM) memorandum, dated 11 June 2001 * VA Rating Decision, dated 12 June 2001 * U.S. Army Reserve (USAR) memorandum, Incomplete Documentation, dated 22 August 2001 * applicant’s memorandum, Incomplete Documentation Concerning Army Reserve Service-Connected Retirement for [Applicant], dated 12 September 2001 * U.S. Total Army Personnel Command memorandum, Line of Duty Determination on [Applicant], dated 12 September 2002 * Memorandum, Legible Copies of Psychiatric Records, dated 12 October 2002 * VA Rating Decision, dated 31 June 2011 * memorandum, AR20110021740, dated 6 September 2012 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110021740 on 2 August 2012. 2. On 10 May 1987, he accepted an appointment in the North Carolina Army National Guard (NCARNG) in the rank of second lieutenant. He served in the NCARNG until he was honorably discharged due to resignation on 1 May 1999. He was transferred back to the USAR Control Group (Reinforcement). 3. The applicant provides numerous medical and personnel documents, which show: a. he received a temporary medical profile for muscle strain on 17 November 1997; b. he was ordered to active duty in support of Operation Joint Endeavor from 18 July 1997 to 2 April 1998; c. he was treated for PTSD, anxiety disorders, and major depression beginning in November 1999 d. he was awarded a 100-percent disability rating by the VA and a disability retirement by OPM; e. the USAR Personnel Command requested additional documentation in order to process his request for a medical determination; f. in his response to the request for additional information he contended that his service connected disabilities, permanent profiles, and 100-percent disability ratings by the VA should be considered; g. the U.S. Total Army Personnel Command found there was insufficient information to reach a line of duty finding for his service in Southwest Asia and Gulf War syndrome; h. the medical and psychiatric records from 1987 to the present were not available for review because they were in use by the VA rating board; and i. on 29 October 2002, those unavailable psychiatric records were provided to the USAR Personnel Command. The applicant did not provide a response to these additional documents. 4. The applicant provides an extract from the record of proceedings for ABCMR Docket Number AR20110021740, wherein he requested processing under the PDES. He notes the Secretary of Defense guidance that the Physical Disability Board of Review and the ABCMR would apply the VASRD to unfitting conditions for applicants discharged on or after 11 September 2001. 5. A review of his official records failed to show any evidence of the applicant being processed under the Physical Disability Evaluation System (PDES). 6. The Army Review Boards Agency (ARBA) Senior Medical Advisor completed and extensive review of the applicant’s personnel and medical records. The medical review included the applicant’s electronic medical record, emergency care notes, medical examination, Southwest Asia Demobilization/Redeployment Medical Evaluation, Physical Profiles, VA health notes, and LOD determinations. Notable was the applicant’s response of “no” to questions regarding any changes to his physical, medical or behavioral symptoms suffered during or upon return from deployment, entered on his Southwest Asia Demobilization/Redeployment Medical Evaluation. Among the documents identified by the Senior Medical Advisory was a DA Form 3349 (Physical Profile), dated 9 June 2001, showing he had permanent profile of S-3 (psychiatric) for PTSD and major depression. The Senior Medical Advisor also noted the applicant's receipt of 100 percent service-connected disability compensation from the VA effective 12 January 2000. The Senior Medical Advisor noted there was insufficient information to reach a finding for conditions attributed to service in Southwest Asia and Gulf War syndrome. Having carefully considered all these factors, the medical advisor opined that: a. the applicant met medical retentions standards in accordance with chapter 3, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation); and b. the available documentation found no evidence of a medical disability or condition which would support a change to the reason for the discharge in this case. 7. The applicant responded to the medical advisory on 14 November 2016. He stated that the action of the Board not to complete the retirement processing started by OTSG was premature and moot. He cites the decision in ABCMR Docket Number AR20140008198 to award complete medical retirement to a veteran based on a VA disability rating of 100 percent for a PTSD diagnosis. In that case, the DOD Physical Disability Board of Review (PDBR) Mental Health Special Review Panel (SRP) corrected a Veteran's record to show he had a 70% disability rating for PTSD in lieu of the 50% rating he had originally received for a mood disorder. The applicant in this case had been fully processed through the Physical Disability Evaluation System and retired for disability. The same circumstances do not exist in this case. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. This regulation also provides, in pertinent part, that 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. 2. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to 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. 3. 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 the 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 the changes in the disability. DISCUSSION: 1. The applicant contends he was, in effect, denied evaluation under the PDES because his records were not available for review prior to his discharge. 2. The record shows that, upon request, the applicant provided medical records for review by the U.S. Army Total Personnel Command in order to determine if his PTSD or Gulf War syndrome were in the LOD. The LOD authority was unable to make a determination in a timely manner with the records that were available at the time. After being discharged from the NCARNG, he was treated for depression and PTSD and he was subsequently awarded a 100-percent service-connected disability rating by the VA. 3. He contends he was denied evaluation through the PDES because his psychiatric and medical records were not available. However, the ARBA Senior Medical Advisor, having reviewed all the documents available in the record and provide by the applicant, opined, in effect, that there is insufficient evidence to support a conclusion that the applicant should have been referred to the PDES prior to his separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016865 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016865 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2