ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 May 2019

	DOCKET NUMBER:  AR20160014287


APPLICANT REQUESTS: 

* inclusion of his post-traumatic stress disorder (PTSD) and asthma (exercise-induced bronchospasms) in his record
* an adjustment to his retirement rating for his PTSD and asthma

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Department of Veterans Affairs (DVA) Regional Office letter, dated 14 May 2008

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, in effect:

   a. His PTSD and asthma (exercise-induced bronchospasms) occurred while he was in the Army.  He has always mentioned his breathing problem during training to the doctor, but he was never tested for asthma.  He also suffered with depression and anxiety while in the Army; however, he was never screened for PTSD.
   
   b. He was diagnosed with PTSD and was granted a rating of 30 percent by the DVA.  He finds it difficult to function socially due to his PTSD and his asthma hinders him from performing manual/physical labor.
   
   c. He was told that he was not being separated for PTSD or asthma when he inquired why neither one of the two medical conditions were included in his separation record. 

   d. He served his country honorably and feels as though he was cheated for not being properly compensated.  

3.  The applicant provides a copy of a letter from the DVA Regional Office, dated 14 May 2008, regarding his service-connection compensation.  The letter indicates the applicant was granted a 30 percent disability rating for service connected PTSD (claimed as anxiety disorder).

4.  A review of the applicant's service record shows:

   a. He enlisted in the Army on 3 February 2004
   
   b. On 6 September 2007, a formal Physical Evaluation Board (PEB) found that the applicant was physically unfit for duty for chronic thoracolumbar pain, without neurologic abnormality and chronic neck pain, without neurologic deficit.  The Formal PEB recommended a combined rating of 20 percent for pain and that the applicant be separated with severance pay if otherwise qualified.  The Formal PEB also found that the applicant's patellofemoral pain syndrome was not unfitting and not ratable.  
   
   c. On 14 November 2007, he was discharged due to disability with severance pay.  He completed 3 years, 9 months and 12 days of active service which was characterized as honorable.
   
   d. A letter, dated 14 May 2008, from the DVA awarded the applicant a 30 percent disability rating for PTSD (claimed as anxiety disorder).
   
   e. On 28 February 2016, the Physical Disability Board of Review (PDBR) recommended the separation be re-characterized to permanent disability retirement with a combined disability rating of 30 percent rather than 20 percent. 
   
   f. On 29 June 2016, a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) was issued to reflect the following:

* Item 23 (Type of Separation):  Retirement
* Item 25 (Separation Authority):  AR 635-60, para 4-24b(1)
* Item 26 (Separation Code):  SFJ
* Item 27 (Reentry Code):  4
* Item 28 (Narrative Reason for Separation):  Disability, Permanent

5.  In the processing of this case, an advisory opinion was obtained on 4 April 2019 from the Army Review Boards Agency (ARBA) Medical Advisor.  The advisory official noted and opined a review of the available documentation found no evidence of a medical disability or condition that would support a change to disability determination(s), disability rating(s) and/or combat readiness for the discharge in this case. 
6.  The applicant was provided the opportunity to rebut the advisory opinion.  He responded on 2 May 2019 reiterating his medical concerns and how the VA gave him strength to fight his PTSD.

7.  Army Regulation 635-40 also provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30 percent, if the Soldier has less than 20 years of service as defined in 10 USC 1208 and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.

8.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.

9.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered.  The applicant was placed on the PDRL with a 30% disability rating that did not include consideration of asthma, anxiety, depression and PTSD.  The medical advisory official noted he was diagnosed with adjustment disorder with anxiety and depressed mood and occupation problem.  That diagnosis was treated with counseling and was not determined as unfitting conditions during his service.  He also received treatment for asthma during his period of service, which was also not an unfitting condition.  After he was retired, the VA diagnosed him with PTSD.  The Board agreed his PTSD and asthma were not unfitting conditions and recommend denial of his requested relief.


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.



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.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or the proximate cause was incurred while performing active duty or inactive duty training.

3.  Title 38, United States Code, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA benefits based on an evaluation by that agency.  The DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

4.  An award of a higher DVA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him from further military service.  The DVA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160014287


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