ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  25 February 2019

	DOCKET NUMBER:  AR20160014274


APPLICANT REQUESTS: to be medically retired.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Letter from Department of Veterans Affairs (VA)
* Medical documents
* DA Form 2-1 (Personnel Qualification Record)
* Enlisted Record Brief
* 2 Noncommissioned Officer Evaluation Report (NCOER)
* Letter addressed to VA
* 5 letters of support
* Orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Personal statement to VA

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he has been continuously disabled and unable to reasonably function in employment and personal relationships since his discharge due to post-traumatic stressed disorder (PTSD) received while on active duty during operation enduring freedom/operation Iraqi freedom (OIF) from February to June 2003, as 95B (Military Police Explosive Detection Canine Handler), just prior to his discharge.  He was sent home early from his deployment but did not receive the care needed upon return from overseas.  He retroactively applied for and is currently receiving disability from VA for PTSD, anxiety, panic attacks, and major depression as a recognized service-connected disability due to his service in support of OEF/OIF in 2003. 

3.  The applicant enlisted in Regular Army on 25 September 1997.  He was honorably discharged on 24 September 2003, due to completion of required active service.  His DD Form 214 shows he was deployed to Saudi Arabia from 12 February 2003 through 22 June 2003, in support of Operation Desert Spring.  

4.  The available records contain no evidence showing he sustained an injury or was diagnosed with an illness of such severity it rendered him unable to perform the duties commensurate with his grade and military occupational specialty (MOS), thereby warranting entry into the physical disability evaluation system (PDES) while he was on active duty.  Additionally, there is no indication he had been given a permanent profile.
  
5.  On 13 January 2017, the ABCMR obtained an advisory opinion from a Clinical Psychologist with Army Review Boards Agency (ARBA), who states, in part, review of the applicant’s VA Benefits indicates the applicant has been found 70 percent service connected for PTSD.  She further states:
     a.  There is no indication in the applicant's military records he failed to meet military medical retention standards in accordance with Chapter 3, AR 40-501 (Standards of Medical Fitness) and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service.
     b.  Based on the information available for review at this time, there is insufficient evidence to determine if the applicant developed PTSD or any other Behavioral Health Condition while on active duty.  Without military medical records, no decision regarding military disability/retirement can be made. 
6.  On 2 February 2017, in response to the advisory opinion an attorney assisting the applicant with his request provided the following:
     a.  Five letters from individuals associated with the applicant prior to and during his military service.  The individuals describe a change in the applicant's demeanor after his deployment.
     b.  A NCOER received prior to his deployment which shows his overall potential for promotion and/or positions of greater responsibility was rated as "Fully Capable" with positive bullet comments.  He also provides a NCOER the applicant received during his period of deployed service to Saudi Arabia which states he had a lackadaisical attitude; professionally stagnated; and no desire for professional advancement; however, his overall potential for promotion and/or positions of greater responsibility was rated as "Fully Capable."
     c.  Medical notes from Dr. L, dated 15 March 2004, indicating the applicant has anxiety.  She recommend Zoloft for help with his anxiety.
     d.  A letter, dated 11 March 2009, addressed to VA describing his ongoing medical issues.  
7.  Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 

8.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.

9.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that 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 VA does not have the authority or responsibility for determining physical fitness for military service.  

BOARD DISCUSSION:

The Board determined there is insufficient evidence to grant relief.  The applicant met medical retention standards when separating from service.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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.


	 
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.


ADMINISTRATIVE NOTE(S):

Not Applicable



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  

	a.  Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the MEB and PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  

	c.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

3.  Army Regulation 635-40 establishes the Army 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.  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.  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 military service.

4.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness. Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating.  A physical profile rating of "3" in any of six rated categories (P-physical stamina, U-upper extremities, L-lower extremities, H-hearing, E-eyes, S-psychiatric) is a basis for referring a Soldier to the PDES.  
5.  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 of less than 30 percent.

6.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that 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 VA does not have the 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.  These two government agencies operate under different policies.  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.


ABCMR Record of Proceedings (cont)	 AR20160014274
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