ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 November 2019 DOCKET NUMBER: AR20170000299 APPLICANT REQUESTS: reconsideration of his previous request for permanent disability retirement vice discharge for disability with entitlement to severance pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Reconsideration Letter * Listing of service-connected disabilities * Letter, dated 15 October 2015 FACTS: 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 AR20150003079, on 13 October 2015. 2. The applicant provides a listing of his service-connected disabilities as well as a letter he previously sent, indicating that he is 100% disabled by the Department of Veterans Affairs (VA). He further argues that: a. After receiving the previous denial, he now thinks that nobody on this Board has ever suffered from post-traumatic stress disorder (PTSD) or the type of life limiting physical disabilities he has been suffering with since his initial injury during Operation Just Cause. He request the Board reconsider their decision based on the attached updated list of disabilities; the attached letter he sent on 15 October 2015 reference these disabilities with tracking receipt (which was not received by the board in time for consideration); as well as with consideration for his PTSD which not only greatly impacts his life today, but made him unfit for duty during my final year(s) in the Army. b. While the Department of Veterans Affairs (VA) is still in the process of backdating effective dates for his various conditions and the overall rating, he wants the Board to note that he has been declared 100% disabled (permanent and total) effective 1 August 2015, with backdate pending. Most importantly, 10 of his 17 service-connected injuries are directly related to the one single combat injury for which he was boarded for separation initially (and of themselves, would have constituted 100% disabling). Additionally, the PTSD is rated at 70% disabling, and in his opinion was at least that bad and impactful on his abilities to serve on the day he returned from Somalia. c. His concern is that despite the fact that he continued to seek field time and deployments due to his inability to cope with garrison duty, meetings and paperwork, nobody diagnosed, explained or helped him deal with his PTSD. Then the first medical doctor to see him upon his discharge from the Army (and all of the subsequent ones interacting with him there) were immediately aware of this condition. Now, with many years of contemplation and retrospective understanding, it is obvious that his suffering should not only have been diagnosed, but treated as well, while he was in uniform and that he should have been found unfit for duty and boarded for that as well as his back and the conditions related to that injury that were not taken into consideration at the time. The Army can't separate his legs and knees from the back as the back is the direct cause of these conditions. In and of themselves, they would certainly have put him over the 30% disability rating threshold. The PTSD in and of itself would have put him over the 30% rating. The reactive airways (asthma) also in and of itself, would have put him over the 30% rating, especially if you added in the shoulders, hearing, etc. d. His point is that the Army should have taken into account the totality of the back and related injuries at the time of his separation, they clearly were aware of but didn't explain or take into account his far more dangerous condition of the PTSD and they didn't take into account the totality of his physical condition and how it impacted his fitness for duty. Had they done so, there is no question that he would have been and should have been medically retired. e. As a final note related to the PTSD, he wants to note that he was in no condition and had no capacity then to interact with doctors or lawyers relative to career, treatment, legal documents, etc. Even with a great wife and the family support he has now, his capacity to even sit in a closed room with a doctor is limited. Yet at the time he was being "counseled" for his boards at Fort Drum, he was completely out of control. Focusing on documents, having an in depth conversation or a decent understanding of a conversation was certainly not possible. Even today, he can't articulate his issues related to PTSD; it has taken him almost a year to just put together this letter. While he probably should have sought legal counsel to deal with this. The idea of sitting in a room talking with a lawyer is more disturbing to him than charging a machine gun and the thought of suing the Army that he loves seems unconscionable. It seems that the Board is saying he should have articulated his PTSD more completely to his examining physician during his boarding physicals so that it could have been part of the process, yet what he wants the Board to understand is that he had never even heard of PTSD at that point in his life (he only heard that term for the first time from the VA) and he couldn't even understand, let alone articulate how this unknown condition was ruining his life, career and fitness for duty. f. He asks that the Board take into account the totality of the conditions related to the back injury and how they impacted his unfitness for duty then. Additionally, he likes this Board to consider the impact PTSD had not only on his unfitness for duty but also on his ability to articulate either that unknown condition or the severity of his other conditions. 3. Review of the applicant's service records shows: a. Having had prior enlisted service (19 August 1987 to 23 June 1988), he was appointed as a reserve commissioned officer on 24 June 1988. He entered active duty on 24 June 1988. He held a Quartermaster specialty and he was promoted to captain in December 1992. b. He served in a variety of stateside or overseas assignments including * Operation Hawkeye, U.S. Virgin Islands: September 1989 * Operation Just Cause, Panama: December 1989 to January 1990 * Noncombatant Evacuation Operation, Liberia: May 1990 to June 1990 * Operation Desert Shield, Saudi Arabia: August 1990 to January 1991 * Operation Desert Storm, Saudi Arabia and Iraq: January 1991 to March 1991 * Operation Fuertascaminos, Panama: February 1992 to June 1992 * Operation Continue Hope, Somalia: July 1993 to September 1993 c. On 5 July 1994, a medical evaluation board (MEB) reviewed his records at Fort Drum, NY, and after consideration of clinical records, laboratory findings, and physical examination, the MEB found that the applicant's chronic low back pain with degenerative disc disease and disc bulging of L4-5 and L5-S1 intervertebral discs with spinal canal stenosis at L5 was permanently aggravated by service, failed retention standards. The MEB referred him to a physical evaluation board (PEB) d. His narrative summary shows on 20 December 1989, during Operation Just Cause in Panama, he jumped out of the back of a C-130 aircraft, which was receiving small arms and mortar fire, onto a concrete runway (approximately 4 foot drop). He was carrying a heavy crate weighing approximately 100 pounds and his ruck sack. Immediately at that time, he experienced severe back pain and fell to the ground." e. On 26 July 1994, an informal PEB convened at Walter Reed Army Medical Center and found his condition(s) unfitting. The PEB rated his condition (Chronic low back pain with degenerative disc disease and disc bulging of L4-5 and L5-S1 with spinal canal stenosis at L5) at a combined rating of 10% and recommended his separation with severance pay, if otherwise qualified. f. On 29 July 1994, the applicant was counseled and concurred with the PEB proceedings and waived his right to a formal hearing of his case. On 3 August 1994, the PEB proceedings were approved on behalf of the Secretary of the Army. g. He was honorably discharged from active duty on 30 September 1994 under the provision of Army Regulation (AR) 635-40, (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), due to disability, severance pay. He completed 6 years, 3 months, and 7 days of net active service this period and 5 months and 19 days of total prior active service. Item 18 (Remarks) shows "Disability Severance Pay: $40,866.00. h. He previously provided: * Standard Form (SF) 93 (Report of Medical History), dated 22 August 1994, SF 88 (Report of Medical Examination) * SF 600 (Chronological Record of Medical Care), dated 22 August 1994 * VA Letter, dated 29 September 1995, in which the applicant provides a summary (by date) of life-threatening experiences (military events) and treatment for PTSD. * VA rating decision, dated 18 July 2008, that shows the VA granted the applicant service-connected disability compensation for various conditions * Medical records that include VA Progress Notes * Service-connected Disabilities Spreadsheets prepared by the applicant with an effective date of 20 March 2015 that show his VA ratings 4. The Army Review Boards Agency (ARBA) psychologist reviewed his personnel and medical records (including his VA ratings and progress noted) for any medical condition(s) not considered during the separation physical process. Specifically, * Does available record reasonably support PTSD, or another behavioral health condition, existed at the time of the applicant’s military service? * Did these conditions fail medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), warranting a separation through medical channels? * Is this condition(s) a mitigating factor in the misconduct that resulted in the applicant’s discharge from the military? * Any additional information deemed appropriate. 5. On 5 November 2019, the ARBA psychologist rendered an advisory opinion in his case. The psychologist stated it is acknowledged that the applicant has been diagnosed with PTSD by the VA and has a service-connected disability rating of 70% for PTSD. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DOD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DOD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting and line of duty. A diagnosis of PTSD is not automatically unfitting. In regard to the questions outlined above: * In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, there is documentation to support the existence of a behavioral health condition at the time of discharge; * The available records indicate that the applicant did meet medical retention standards with respect to behavioral health diagnoses IAW AR 40-501; * Military medical disability/retirement for PTSD is not recommended 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 7. The law (38 USC, section 1110 and 1131), permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish error or injustice on the part of the Army. 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 or her from further military service. The VA, 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 different disability ratings based on the same impairments. Furthermore, 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. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service- connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board considered the applicant's statement, his record of service, his medical separation proceedings, the reason for his separation and the difference between the reasons for medical disability as determined by the Army and by the VA. The Board considered the VA documentation the applicant provided and as well as the review and conclusions of the medical advising official. The Board found that the applicant provided no additional documents or comment in response to the advisory opinion. The Board agreed with the advising official, not finding sufficient evidence to support that the applicant failed to meet medical standards for additional conditions. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation was not in error or unjust; there was insufficient evidence to warrant a change to the applicant’s military record. 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. 1/28/2020 X CHAIRPERSON Signed by 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. Army Regulation 635-40 Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 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. Separation by reason of disability requires processing through the PDES. a. Chapter 3 (Policies), paragraph 3-5 (Use of the VA Schedule for Rating Disabilities), shows that 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. b. Chapter 4 (Procedures) provides: (1) Paragraph 4-10 (The MEB) that MEB's 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 qualification for retention based on criteria in AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. (2) Paragraph 4-12 (Informal Board) that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. In addition, in all informal cases, the PEBLO of the medical treatment facility having control of the Soldier will be the counselor for the Soldier. As such, the PEBLO is primarily concerned with the Soldier's interests. The Soldier will be made fully aware of the election options available to him or her, the processing procedures, and the benefits to which he or she will be entitled if separated or retired for physical disability. 10. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30%. Section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30%. 2. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish error or injustice on the part of the Army. 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 or her from further military service. The VA, 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 different disability ratings based on the same impairments. Furthermore, 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. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service- connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. NOTHING FOLLOWS