ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    6 May 2019

	DOCKET NUMBER:  AR20160018903


APPLICANT REQUESTS:  a medical disability retirement.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Rating

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 was not evaluated for post-traumatic stress disorder (PTSD) at the time of his discharge.  He was medically discharged due to an injury sustained during training operations.  He was recently diagnosed as having service-connected PTSD.  He was awarded a 30 percent (%) service-connected disability rating by the VA, with a combined total rating of 70% from various other injuries sustained while on active duty.  At the time of his discharge, it was not routine for a Soldier to be evaluated for PTSD.  

3.  The applicant provides his VA Rating, dated 24 May 2016, wherein he was advised of his entitlement to a service-connected disability rating of 30% for PTSD and a combined rating of 70% for other various medical conditions.

4.  A review of the applicant’s military record shows the following:

     a.  He initially enlisted in the Regular Army (RA) on 23 July 1993.  He held military occupational specialty 13B (Cannon Crewmember).  

     b.  He served in Bosnia from 16 March to 13 October 1997.

     c.  He reenlisted in the RA on 13 January 2000 and 14 February 2001.

     d.  His service records does not contain the complete facts and circumstances pertaining to his discharge.  However, his records contain the following:

* Orders Number 016-001, dated 16 January 2004, reassigning him for discharge effective 23 February 2004, with entitlement to disability severance pay
* DD Form 214 showing he was honorably discharged on 23 February 2004, under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B (3), for disability
* the form also show he completed 10 years, 7 months, and 1 day of active service and his entitlement to disability severance pay

     e.  A Physical Disability Board of Review (PDRB) Recommendation memorandum, showing a PDBR convened on 21 January 2014 and recommended modification of the applicant’s assigned disability rating to reflect a combined rating of 20 percent (%) rather than 10%, without recharaterization of the separation.

     f.  A DOD PDBR Recommendation memorandum, dated 29 April 2014, wherein the Deputy Assistant Secretary of the Army (Review Boards) directed correction of the applicant’s records according to the PDRB memorandum.

    g.  A letter, dated 29 April 2014, wherein he was advised of the PDRB’s determination.

     h.  Orders Number 163-0003, dated 12 June 2014, amending his separation orders to show his disability rating as 20%.

5.  An advisory opinion was received from the Medical Advisor/Psychologist, Army Review Boards Agency, on 29 January 2017, in the processing of this case.  The psychologist reviewed the record for alleged medical condition(s) that may have warranted separation through medical channels, specifically:

* did the available record reasonably support PTSD or other boardable behavioral health conditions existed at the of the applicant’s military service
* did those conditions fail medial retention standards in accordance with (IAW) AR 40-501 (Standards of Medical Fitness) warranting a separation through medical channels
* was that condition(s) a relevant factor in the applicant’s discharge from the military

6.  The medical advisor reiterated the applicant’s period of military service and stated the applicant’s medical condition was considered at the time of his discharge.  The applicant provided no evidence that he had behavioral symptoms at the time of discharge that would have enabled a competent provider to diagnose him with a behavioral-health disorder at that time.  A review of the available did discover evidence of a mental-health considerations that may be relevant to the question of medical retirement.  Absence of evidence is not the same as evidence of absence; however, available evidence failed to show he had any functional impairment from mental-health conditions.

7.  The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal.  In his response, received in February 2017, the applicant stated:

	a.  He was deployed to Bosnia in 1997, where he personally witnessed atrocities perpetrated on other human beings as a well as his convoy being attacked during the Brcko riots.  He did suffer from bouts of extreme anxiety in crowded situation, so much as that he often avoided them all together.  He had daydreams and nightmare and was always on full alert.  That was exhausting and it interfered with his day to day life.

	b.  During his medical board proceedings that was for a back injury as a result of a field training accident, he did not a PEB Liaison Officer or an attorney to help guide his decisions.  He was advised to be in Landstuhl, Germany, for a medical board physical which was administered to him by a proctologist and it took literally 25 minutes.  At no time was he evaluated for PTSD during his final physical.  To be honest he had no clue what PTSD was and the Army was not actively testing for it in 2004 when he was discharged.

	c.  When he was told that he was being medically boarded out of the Army all he thought about was that he had a family to house and feed and with the Army no longer his primary means of employment, he placed his own health and welfare on the back burners to finds job so he continue to provide for his family.  He willing took the findings of his medical board and chose not to contest their finding out of a necessity to get a job.

	d.  He accepted a position at Fort Polk and when he arrived there he was introduced to the VA system, made an appointment, and became enrolled.  On his first visit, he was told that he exhibited signs of moderate to severe PTSD.  He did not really know what that was because he did not feel it was pertinent to complain to anyone about the anxiety issues he suffered because amongst his fellow veterans, they all had issues.  He underwent counseling there for several weeks and received a formal diagnosis by a licensed psychologist that specialized in PTSD.  

	e.  It was mentioned in his case review that he said something about not wanting to seek assistance with drinking, he did drink daily to cope, but had found a way to quit altogether after he took a look outside himself and realized what he was doing to his family.
	f.  He is seeking a medical retirement due to conditions that he had at the time of his discharge that were not properly diagnosed during his medical board processing.  He would sleep better at night knowing that when the day came when he could no longer work due to his conditions that his family would still be taken care of.  He served honorably, was promoted ahead of his peers, and his dream and plan of being a “career Soldier” was cut short due to an accident training for deployment to Iraq.

8.  By regulation, a Soldier may be discharged from the Army for not meeting retention standards IAW AR 40-501 and awarded a disability rating assigned by the Army’s disability system.  However, an award of a rating by another agency does not establish error in the rating assigned by the Army's disability system.  Operating under different laws and their own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The findings of the VA as to disability conditions are not binding on the Army and do not require reassessment of earlier determinations.

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 determined that relief was not warranted.  Based upon the medical advisory finding that available evidence failed to show he had any functional impairment from mental-health condition, the Board concluded that there was insufficient evidence to make a change to the narrative reason for discharge.  For that reason, the Board recommended denying the applicant’s request for 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 (AR) 40-501 (Standards of Medical Fitness), governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0% to 100%, rising in increments of 10%.

3.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B, prescribes policy and implements the requirements of chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code (USC).  The regulation states:

     a.  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.  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.

     b.  Based upon the requirements of section 1203 of chapter 61, Title 10, USC, states Soldiers, not otherwise eligible for military retirement, with a disability not the result of intentional misconduct or willful neglect, and with less than a 30 percent disability rating, will receive severance pay.

     c.  The VA Schedule for Rating Disabilities (VASRD) is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition at the time of separation.  

4.  Title 38, USC, sections 1110 and 1131, permits 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.

ABCMR Record of Proceedings (cont)	 AR20160018903


5


1