ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20170011564 APPLICANT REQUESTS: Correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show post-traumatic stress disorder (PTSD) as an unfitting condition, resulting in an increase to his physical disability rating. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical Evaluation Board (MEB) Addendum * Department of Veterans Affairs (VA) Rating Decision 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 (ABCMR) 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: * his mental health issues were documented by the Army but not considered for disability rating or misdiagnosed * his MEB report specifically and clearly mentioned that he was suffering from mental health issues * he believes based upon the circumstances and undeniable facts that the diagnosis at that time was made in error and marginalized from what the true issue was * his record was reviewed by the Department of Defense Physical Disability Board of Review (DOD PDBR) but his mental health issues were not even considered * he is suffering from severe PTSD which has affected his daily life activities and functions over the years and should finally be addressed 3. The applicant enlisted in the Regular Army on 22 July 2002. His records shows he served in Iraq from 15 April 2003 to 15 March 2004. 1. 4. On 16 December 2004, the applicant was issued a DA Form 3349 (Physical Profile) based on a diagnosis of thoracic ruptured disc. The DA Form 339 shows his profile was permanent and that he required an MEB/PEB. 5. On 24 February 2005, an MEB diagnosed the applicant a thoracic ruptured disc which was deemed unfitting and unacceptable for further military. The MEB recommended his referral to a PEB. He was also diagnosed with attention deficit hyperactivity disorder (ADHD) and cyclothymic disorder but these conditions were deemed to be medically acceptable. On 8 March 2005, the applicant agreed with the MEB's findings and recommendations. 6. On 29 March 2005, a PEB found the applicant physically unfit due to a thoracic ruptured disc and recommended his separation with a 10 percent disability rating and entitlement to severance pay. The PEB indicated the applicant's MEB's diagnoses of ADHD and cyclothymic disorder were considered but found not to be unfitting and therefore not rated. The applicant concurred with the PEB findings and waived a formal hearing of his case. 7. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 16 May 2005 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, by reason of disability with severance pay. 8. The applicant submitted an application to the PDBR (DD Form 294) requesting a review of his Army physical disability rating. He indicated an additional medical condition (hiatal hernia) and that he was diagnosed with PTSD but the Army did not evaluate his PTSD. He also contended that his diagnosis of a thoracic ruptured disc had turned into degenerative disc disease. 9. On 2 July 2014, a PDBR convened to review the applicant's disability rating in accordance with Title 10, USC, section 1554a and in compliance with DOD Instruction 6040.44. In its proceedings, the PDBR noted that the scope of its review was limited to those conditions identified by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the covered individual (i.e., the applicant). The PDBR also noted that it could only address the ratings for the unfitting thoracic spine condition. No other conditions were within the PDBR’s purview. The PDBR further noted that the requested hiatal hernia condition was not identified by the MEB or PEB and therefore not within their purview. The PDBR recommended no re-characterization of the applicant's separation or modification of the disability rating previously assigned. 10. The PDBR's findings and recommendations were approved by the Deputy Assistance Secretary of the Army (Review Boards) on 25 November 2014. 1. 11. The applicant provided a VA Rating Decision, dated 14 February 2011, indicating he was granted service-connected disability compensation by the VA for PTSD with bipolar and anxiety disorder rated at 100 percent. 12. On 8 August 2017, the Army Review Boards Agency psychiatrist/medical advisor provided an advisory opinion. The advisory found the available documentation does not show the applicant failed to meet military psychiatric retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) while on active duty. The applicant's military medical records do not support a PTSD diagnosis at the time of discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. The applicant was provided a copy of the advisory opinion on 10 August 2017 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the finding within the medical advisory that the available documentation does not show the applicant failed to meet military psychiatric retention standards in accordance with Army Regulation 40-501 while on active duty and that the applicant's military medical records do not support a PTSD diagnosis at the time of discharge, the Board concluded that relief was not appropriate. 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. 5/7/2019 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. 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 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 establishes the Army Physical 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 or her office, grade, rank, or rating. It provides for MEB's which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a 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 service. a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. a. 3. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation, including retirement. Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 4. 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. 5. 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 higher VA rating does not establish an 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 Army disability rating is to compensate the individual for the loss of a military career. The VA does not have 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. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 6. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 provides that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.