ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20170011815 APPLICANT REQUESTS: * re-adjudication of his Medical Evaluation Board (MEB) to show his post-traumatic stress disorder (PTSD) * reinstatement of permanent retirement * increase of percentage of his service-connected disability * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DA Form 2-1 (Personnel Qualification Record) * Awards and Accomplishments (22) * DA Form 3349 (Physical Profile) * Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) Packet * MMRB Summary/Referral to Medical Evaluation Board/Physical Evaluation Board (MEB/PEB) * DA Form 3947 (MEB Proceedings) * DA Form 199, (PEB Proceedings) * Removal from the Temporary Disability Retired List (TDRL) * Physical Disability Information Report * Separation Orders Number 079-0015 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Discharge Certificate * Case Management Division (CMD) Letter to Applicant, 22 August 2017 * Rebuttal Letter from the Department of Veterans Affairs (VA), to the Army Review Boards Agency (ARBA) 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: a. He has battled with the effects of PTSD for the past 15 years and only now he has come to understand he was not adequately diagnosed for this while on active duty. His personnel records support his claim. b. His veteran medical records also enhance this claim. He has nightmares 7 days a week and his behaviors are often aggressive and overly assertive. He has significant anxieties and on occasion violent behaviors. While he was an active duty infantryman, MOS 11B asserting aggressive behavior was expected, it was normal this is not acceptable behavior in the civilian world. c. He is asking for help for help for the symptoms of PTSD during the era he served it was shunned, not tolerated within the Army’s command structure and it was career ending. 3. The applicant provides: a. A self-authored statement which states: * He was medically separated on 30 April 2002 and placed on the TDRL through late 2003 * He would like a re-adjudication of his MEB separation from the active duty Army service. At the time of his discharge he was placed on TDRL for his chief complaints of migraine headaches, sleep apnea, and narcolepsy * He has since learned that he does in fact have combat related PTSD and that he should have been evaluated, treated and medically boarded from the Army with this major diagnosis * He seeks redress of this service-connected issue that his MEB be adjudicated to include PTSD * His Army retirement be reinstated as permanent with an increased percentage in his service-connected/service related disability commensurate with the addition of PTSD in addition to his existing migraine, sleep apnea, and narcolepsy disorders * He has nightmares 7 days a week. He served his country and the Army with distinction and he is forever proud of his service, wishing he could have served a full twenty year career. However, this was not meant to be the case. He continues to serve the Army as an active member of his local military community * He seeks to have his case re-examined and appropriately increased and returned to the Army retired rolls b. Twenty-two documents of accomplishments and recognitions from awards for meritorious performance, certificates of achievement, certificates of training, correspondence courses completed that show he was fully capable and proficient at his job completing his tasks and a good conduct medal for exemplary behavior, efficiency and fidelity in active military service. c. A copy of his DA Form 3349 on 22 November 2000, that shows he could wear a Kevlar for 30 minutes at a time with 10 minute breaks in between and that he could exercise at his own pace. d. His MMRB packet includes: * commander’s evaluation that highlights the applicant was incapable of reasonably performing his duties as a mechanized infantry Soldier due to his neurological problems * statements from his peers that show the applicant demonstrated and performed physical training to the Army standard discharging his duties both as a team leader and as an infantryman * he was a competent leader who showed both the technical and tactical attributes of an infantryman and he was able to perform all his duties with no supervision * he suffered extreme headaches and he was hospitalized for 1 week due to a diagnosis of meningitis after being released from the hospital he was placed on quarters for a month and a half and subsequently he was moved for light duty position to the Headquarters Company * he was considered one of the best team leaders and was recognized for outstanding leadership capabilities by his entire chain of command; his dedication to duty and perseverance were a milestone for his peers and the entire unit to follow * they felt compassionate for his condition and felt the Army was losing an outstanding Soldier because of his ailment e. A summary of his MMRB stated the Soldier was not capable of performing his duties at the full range of physical tasks required of his primary MOS in a worldwide field environment. They recommended for the applicant to be referred to the Army’s Physical Disability System (MEB/PEB). f. His MEB proceedings on 29 January 2002, show he was clinically diagnosed with encephalitis or meningitis. His initial PEB proceedings show him rated at 30 percent. g. His Orders number 079-0015, dated 20 March 2002, show he was placed on the TDRL list effective 1 May 2002, because of his condition due to a disability with a combined rating percentage of disability of 30 percent. h. DA Form 199 shows the PEB Board convened on 12 November 2003, and found that the applicant remained unfit to reasonably perform the duties required by previous grade and military specialty. The Board recommended a combined rating of 10%. He was granted separation with severance pay if otherwise qualified. The applicant signed the form on 18 November 2003 indicating he concurred and waived a formal hearing of his case. i. Temporary Disability Retired List, Orders number D226-6, dated 21 November 2003. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 02 November 1994. b. He served in Korea from 23 September 1997 to 22 September 1998. c. On 29 January 2002, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found he was diagnosed with the conditions listed below and recommended for referral to a PEB. Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Chronic daily headache status post an episode of encephalitis or meningitis in April 2000, somewhat controlled on chronic prophylactic and heavy as needed medication X 2. Obstructive sleep apnea with good response to Continuous Positive Airway Pressure (CPAP), polysomnography therapy X d. On 13 February 2002, after having been counseled, the applicant indicated he reviewed the contents of the MEB, agreed with the findings and recommendations, and authenticated the DA Form 3947 (MEB Proceedings) with his signature. He acknowledged: * he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on his physical profile * the physical profile included all his conditions and whether or not they meet retention standards; the conditions that did not meet retention standards were properly listed * he provided all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical conditions at the time e. On 20 February 2002, a PEB convened and found his condition for chronic daily headaches prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit. The PEB rated the applicant's conditions under the VA Schedule for Rating Disabilities (VASRD): Code 8199 and 8100 chronic daily migraine headaches with prostrating episodes once a month rated at 30 percent. On that same date his condition for obstructive sleep apnea with good response to CPAP. The PEB determined that the condition was not unfitting and therefore not rated. The PEB determined his disposition should be placement on the TDRL with future reexamination. f. The applicant was counseled and he concurred on 25 February 2002, with the PEB's findings and recommendations and waived his right to a formal hearing of his case. g. He retired on 30 April 2002 and he was placed on the TDRL the next day in accordance with Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4-24b (2), by reason of temporary disability. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 7 years, 5 months, and 29 days of net active service this period. h. Effective 1 May 2002, the applicant was placed on the TDRL because of his condition due to disability with a rating of 30 percent. The applicant was due for a re- examination on September 2003. i. On 12 November 2003, following an examination, a TDRL PEB convened to reevaluate his conditions for migraine headaches, occurring twice a week with three incapacitating headaches requiring emergency room treatment in the previous 6 months. The PEB found he remained unfit to reasonably perform his duties required by previous grade and military specialty. His case was considered sufficiently stable for final adjudication. The TDRL rated his condition at 10 percent and his disposition be separation with entitlement to severance pay. j. The applicant was counseled and he concurred on 18 November 2003, with the PEB's findings and recommendations and waived his right to a formal hearing of his case. k. On 21 November 2003, he was removed from TDRL and discharged from the service because of a permanent physical disability with a percentage disability of 10 percent. 5. In the processing of this case, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion on 19 September 2017. The medical professional opined: a. The applicant did not meet medical retention standards in accordance with (IAW) Chapter 3, AR 40-501, 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, which was why he was put on the TDRL. b. The applicant's medical conditions were duly considered during medical separation processing. c. A review of the available documentation found insufficient evidence of a medical disability or condition which would support the applicant's request to be placed back on the TDRL for evaluation of his PTSD. 6. The applicant was provided with a copy of this advisory opinion for review and an opportunity to submit a rebuttal, but he did not respond. 7. By regulation, 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. 8. An increase to the percentage of his service-connected disability is not within the purview of this Board. The applicant is advised to address this issue with the Department of Veterans Affairs. 9. By regulation (AR 635-40), 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. Paragraph 3-2 states 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. 10. 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. 11. 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. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could make a fair and equitable decision in the case without a personal appearance from the applicant. The Board found that based upon the medical advisory’s finding that insufficient evidence of a medical disability or condition was present which would support the applicant's request to be placed back on the TDRL for evaluation of his PTSD, the Board concluded that there was insufficient evidence to show an error or injustice was present which would warrant changing the applicant’s record. For that reason, the Board recommended denying the applicant’s 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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 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. 3. AR 635-40 (Physical Evaluation for Retention, Retirement or Separation) establishes the Physical Disability Evaluation System (PDES) 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 separation for disability. a. The disability system assessment process involves two distinct stages: the Medical Evaluation Board (MEB) and Physical Evaluation Board (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 are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. b. 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. 4. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities. The VA Schedule for Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 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 at less than 30 percent. 6. 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 in the Army rating. 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, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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.