RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 December 2005
      DOCKET NUMBER:  AR20050003452


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Allen L. Raub                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his physical disability separation with
severance pay be changed to a medical retirement.

2.  The applicant states the Department of Veterans Affairs (DVA) awarded
him a 90 percent disability rating 3 months after he was discharged.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty), his Medical Evaluation Board (MEB)
proceedings, and his DVA Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  The applicant’s military records are not available to the Board.  This
case is being considered using reconstructed records, which primarily
consist of the documents provided by the applicant and his Physical
Evaluation Board (PEB) packet.

3.  The applicant enlisted in the Regular Army on 8 July 1998.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 88M (Motor Transport Operator).

4.  On 3 July 2003 while in Iraq, he was in a HMMWV (aka Humvee) when a
roadside bomb exploded and he was ejected from the vehicle.

5.  By memorandum dated 8 October 2003, the applicant's commander noted
that the applicant was not assigned any duties.  He could not hear well,
jump, run, crawl, or carry loads on his back.  With those limitations, he
would not be able to carryout his duties as an 88M.  The commander also
noted the applicant had issues in making decisions since he was injured.
His cognitive skills had been affected to the point that he could not make
quick decisions.

6.  The MEB Narrative Summary noted the applicant had extensive injuries,
including a closed head injury, pneumothorax (collapsed lung), fractured
clavicle, compression fractures of the lumbar spine, shrapnel wounds, and
extensive soft tissue injuries.  He eventually arrived at Walter Reed Army
Medical Center (WRAMC) intubated and on mechanical ventilation.  He was
treated for acute respiratory distress syndrome and was found to have
pansinusitis and otitis media.  He received antibiotics and also underwent
testing for traumatic brain injury where reportedly a neuropsychiatric
screening revealed several deficits.  He developed traumatic pancreatitis,
which resolved with conservative treatment. A hearing evaluation disclosed
a hearing deficit in the right ear with a perforation of the tympanic
membrane.

7.  The MEB noted the applicant was returned to Fort Carson, CO on 5 August
2003 and placed on 30 days convalescent leave.  During that time he was
followed up at Neurology, General Surgery, Physical Therapy, and
Psychiatry.  He saw Otolaryngology on 10 August 2003, where persistent
perforation of the right tympanic membrane was documented as well as a
conductive hearing loss on that side and complaints of tinnitus.  Two
months later he still had a right tympanic membrane perforation and the
audiogram still showed a low frequency hearing loss in the right ear
qualifying him for an H2 profile.

8.  The MEB Narrative Summary indicated the applicant was seen in
Orthopedics on 3 November 2003.  Radiographs of the cervical spine, lumbar
spine, and knees were negative; films of the ankles were consistent with a
calcified hematoma in the right, and left shoulder films showed a small
distal clavicle osteophyte.  He was diagnosed with shoulder impingement,
patellofemoral pain, ankle pain, and mechanical low back pain, falling
below retention standards for his back.  He also underwent neuropsychiatric
testing in early December 2003, where it was concluded he had essentially
normal neuropsychological and cognitive function but with mildly
inconsistent attention and concentration consistent with emotional ability
qualifying for the diagnosis of adjustment disorder with mixed emotional
features, not falling below retention standards.

9.  The MEB Narrative Summary noted the applicant was on a 123221 profile
with assignment limitations of no running, jumping, rucksack, push-ups, or
situps; no lifting over 20 pounds;  Walking, biking, or swimming at own
pace and distance for fitness and no physical fitness test assigned.  It
also noted the physical demands rating for MOS 88M are 222222 and very
heavy.  After the extensive evaluation, it was found the applicant fell
below retention standards only for his low back pain.

10.  On 27 January 2004, an MEB referred the applicant to a PEB for a
diagnosis of lumbar spine, chronic low back pain.  Ten other diagnoses that
met retention standards were listed:  retro patellar pain syndrome; left
shoulder capsulitis with impingement; bilateral ankle pain with calcified
hematoma of the right ankle; hearing loss right ear with chronic tympanic
perforation; tinnitus; adjustment disorder with mixed emotional features;
gastro esophageal reflux; retained shrapnel; and vision deficit.

11.  On 30 January 2004, the applicant agreed with the MEB's findings and
recommendation.
12.  On 5 February 2004, an informal PEB found the applicant unfit for
service due to mechanical low back pain following explosive war injury.
Hospital records indicated closed fracture of lumbar vertebra, x-rays of
spine described as normal. Near full range of spinal motion without
deformity or spasm, no radiculopathy, pain in the paraspinous muscles on
examination.  Extensive profile restrictions were unfitting.  All other
diagnoses were found to be not unfitting.

13.  On 9 February 2004, the applicant concurred with the findings of the
PEB and waived a formal hearing of his case.

14.  On 11 April 2004, the applicant was separated due to disability with
severance pay.

15.  A DVA Rating Decision dated 29 September 2004 shows the DVA awarded
the applicant a 90 percent combined disability rating for post-traumatic
stress disorder and cognitive disorder (70 percent); low back sprain (20
percent); left shoulder impingement with left distal clavicle osteophyte (
10 percent) right and left knee retropateller pain syndrome (10 percent
each knee); right and left ankle sprain residuals (10 percent each);
tinnitus (10 percent) residuals of bronchitis and pneumonitis due to
exposure to fumes in Iraq explosion (10 percent); right foot sprain (zero
percent); hearing loss, right ear, status post perforated tympanic eardrum
(zero percent); gastroesophageal reflux disease (zero percent); and scars,
multiple shrapnel wounds (zero percent).

16.  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.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 In pertinent part, it states that the mere presence of an 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
Soldier reasonably may be expected to perform because of his or her office,
grade, rank, or rating.

17.  Army Regulation 40-501 governs medical fitness standards for
procurement, retention, and separation.  Paragraph 3-10 (Hearing) states
trained and experienced personnel will not be categorically disqualified if
they are capable of effective performance of duty with a hearing aid.  Most
Soldiers having a hearing defect can be returned to duty with appropriate
assignment limitations.  Paragraph 3-36 (Adjustment disorders) states
situational maladjustments due to acute or chronic situational stress do
not render an individual unfit because of physical disability, but may be
the basis for administrative separation if recurrent and causing
interference with military duty.

18.  Title 38, U. S. Code, sections 1110 and 1131, permits the DVA 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.

19.  Until certain provisions of the law were changed in fiscal year 2004,
a common misconception was that veterans could receive both a military
retirement for physical unfitness and an Army disability pension.  Under
the law prior to 2004, a veteran could only be compensated once for a
disability.  If a veteran was receiving a DVA disability pension and the
Board corrected the records to show the veteran was retired for physical
unfitness, the veteran would have had to have chosen between the DVA
pension and military retirement.  The new law does not apply to disability
retirees with less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged the applicant received extensive injuries while in
Iraq.  However, at the time of his MEB his commander noted the applicant
was not assigned any duties due to limitations primarily concerning his
back.  The commander also noted the applicant's cognitive skills had been
affected to the point that he could not make quick decisions; however, the
MEB found that condition to be consistent with emotional ability qualifying
for the diagnosis of adjustment disorder with mixed emotional features, not
falling below retention standards.  The applicant concurred with the
recommendation of the MEB and also concurred with the findings of the PEB.

2.  The rating action by the DVA does not necessarily demonstrate an error
or injustice in the Army rating.  The DVA, operating under its own policies
and regulations, assigns disability ratings as it sees fit.  The DVA is not
required by law to determine medical unfitness for further military service
in awarding a disability rating, only that a medical condition reduces or
impairs the social or industrial adaptability of the individual concerned.
Consequently, due to the two concepts involved (i.e., the more stringent
standard by which a Soldier is determined not to be medically fit for duty
versus the standard by which a civilian would be determined to be socially
or industrially impaired), an individual’s medical condition may be rated
by the Army at one level and by the DVA at another level.

3.  In addition, if the correction requested by the applicant were made he
still would have to choose between receiving his military medical retired
pay or his DVA disability pension.  He could not receive both.  Failure to
make the correction requested will not unduly harm him.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__slp___  __mhm___  __alr___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  __Shirley L. Powell___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003452                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051213                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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