RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 May 2007
      DOCKET NUMBER:  AR20060014005


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Ms. Rose M. Lys                   |     |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, in effect, that his narrative reason for
separation be corrected.

2.  The applicant states, in effect, that his narrative reason for
separation incorrectly states that he was discharged for a disability that
existed prior to service, but he received his injuries three years after he
entered into the service.

3.  The applicant provides copies of his DD Form 214 (Certificate of
Release or Discharge From Active Duty), VA Form 10-1000 (Discharge Summary
Draft), DD Form 2808 (Report of Medical Examination), his Medical
Evaluation Board (MEB) proceedings, his Physical Evaluation Board (PEB)
proceedings, a copy of his rebuttal to the PEB, and a memorandum from the
Unites States Physical Disability Agency in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he completed a medical
examination on 11 July 2001 and was found qualified for enlistment.  Item
77 (Summary of Defects and Diagnoses) of the DD Form 2028 (Report of
Medical Examination) contains no information.

2.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 8 July 2002.  He was trained in, awarded, and served
in military occupational specialty (MOS) 13B (Cannon Crewmember) and the
highest rank he attained while serving on active duty was specialist/pay
grade
E-4.

3.  The applicant's VA Form 10-1000 (Discharge Summary) transcribed on
25 October 2005, show that the applicant was transferred to the Minneapolis
VA Medical Center Traumatic Brain Injury (TBI) rehab program from the
University of Missouri Medical Center because of a motor vehicle accident
he was involved in on 26 June 2005.  Injuries from the accident included a
TBI with right subdural hematoma, status post evacuation with craniotomy
and likely diffuse axonal injury and left frontal contusion.  Orthopedic
trauma included C7, T1, T2, and L2 transverse process fractures, left-sided
rib fractures, left hemithora requiring chest tube placement.  Spine
fractures were evaluated by Neurosurgery and the patient was put in
cervical spine collar immobilization times six weeks.  The applicant was
treated acutely at the University of Missouri Medical Center and hospital
for the following events:  Right frontal craniectomy and evacuation of
subdural hematoma with bone flap being frozen at the University of
Missouri.  Intracranial pressure monitor placement, treatment for
ventilator associated pneumonia, inferior vena caval filter, placement
secondary to concern of fevers and possible deep venous
thrombosis/pulmonary embolus, treatment for central dysautonomia with
Propranolol, tracheostomy.  The applicant was weaned from the ventilator
and decannulated five to six days later.  At the time of admission to the
Minneapolis VA Medical Center the applicant showed improved neurologic
functional performance with therapies and was thus referred to the
Minneapolis VA Medical Center TBI rehab program.  The applicant was
discharged from the Minneapolis VA Medical Center with instructions to
appear before a medical review board at Fort Leonard Wood, Missouri.

4.  On 24 April 2006, the applicant appeared before a Medical Evaluation
Board (MEB).  The MEB found that the applicant failed to meet retention
standards in accordance with AR40-501 due to traumatic brain injury with a
right subdural hematoma, as well as left cerebral contusion.  The MEB also
found that the applicant’s injuries were incurred on 26 June 2005, while
the applicant was entitled to base pay but that they did not exist prior to
service nor were they aggravated by service.  The PEB referred the
applicant to a Physical Evaluation Board (PEB).

5.  On 13 July 2006, the applicant appeared before a PEB.  The PEB
considered the applicant's condition of multiple injuries as the
intoxicated driver in a motor vehicle accident on 26 June 2005 that
resulted in cognitive impairment involving slowed motor speech and
difficulty with higher functions, right (dominant) hemiparesis with slight
weakness of right upper extremity, and right hemiparesis with slight gait
abnormality (right lower extremity).  The PEB reevaluated all available
medical records and sworn testimony by the applicant.  The applicant's
Medical Evaluation Board (MEB) decision was provided to the PEB.  The PEB
found the applicant's medical and physical impairment made him medically
unfit to perform duties required by his grade and military specialty.  The
PEB noted that there was compelling evidence to support a finding that the
applicant’s disability was found to be Not In the Line of Duty.  The PEB
also noted that the applicant's disability was not service connected.  The
PEB did not award the applicant a disability rating.

6.  The applicant did not concur with the findings and recommendations made
by the PEB.  In his rebuttal to the PEB, the applicant stated that to date,
it has not been confirmed or proven that he was the driver of the
automobile.

7.  The PEB reviewed the applicant's rebuttal on 26 July 2006.  After
careful consideration, the PEB found that no change to the original
findings was warranted.  The PEB considered the fact that the applicant's
rebuttal contained no objective medical information which would warrant any
change to his PEB rating.  The PEB rebuttal believes that the applicant’s
case was properly evaluated in accordance with AR 635-40 and current US
Army Physical Disability Agency policies.  The PEB's rebuttal stated that
the disability description was based on the Line of Duty determination, the
Missouri State Highway Patrol accident and casualty reports submitted to
the Department of the Army, in which the applicant was named as the vehicle
driver.  The PEB forwarded the applicant's case to the US Army Physical
Disability Agency (USAPDA) for final processing.

8.  On 3 August 2006, the Chief, Operations Division, USAPDA, advised the
applicant that after review of his entire case, the Agency concluded that
his case was properly adjudicated by the PEB.  The Chief stated that the
PEB correctly applied the rules that govern the Physical Disability
Evaluation System (PDES) in making its determination.  The findings and
recommendations of the PEB were supported by substantial evidence;
therefore, they were affirmed.  The applicant was informed that he may be
eligible for medical care through the Department of Veterans Affairs (DVA),
if they determine that his illness or injury was service-connected.
Furthermore, he may apply for a disability rating through the DVA for any
of those service-connected illnesses or injuries.  The DOD PDES; however,
operating under a different set of laws than the DVA, may only compensate
Soldiers for any service-connected or permanently aggravated condition that
caused their separation and only for the degree of impairment at the time
of their separation.

9.  The applicant was discharged from active duty effective 11 September
2006, in pay grade E-4, under the provisions of Army Regulation 635-40,
paragraph
4-24B(4), Disability, EPTS, PEB.  He was assigned separation code JFM.

10.  Army Regulation 635-5-1 provides the policy for separation program
designator (SPD) and corresponding narrative reason for separation based on
the regulatory authority for separation or discharge.  This regulation
provides the SPD for Army Regulation 635-40, paragraph 4-24b(6) as JFP,
Disability, Not in the Line of Duty.

11.  Army Regulation 635-40 sets forth the basic authority for the
evaluation of physical fitness of Soldiers who may be unfit to perform
their military duties because of physical disability.  Paragraph 4-24b (6)
provides for separation for physical disability without severance pay when
disability occurred as a result of intentional misconduct, willful neglect,
or during a period of unauthorized absence.

12.  Title 10, United States Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.

13  Title 10, United States Code, section 1207, provides for the physical
disability separation of a member who is unfit to perform the duties of his
office, grade, rank, or rating, and that resulted from his intentional
misconduct or willful neglect or was incurred during a period of
unauthorized absence,shall be separated from his armed force without
entitlement to any benefits under this chapter.

14.  DoDI 1332.38, implements policy, assigns responsibilities, and
prescribes procedures for retiring or separation of service members because
of physical disability, make administrative determinations for service-
incurred or service-aggravated conditions, and authorizes a fitness
determination for members of the Reserve ineligible for benefits.
Paragraph E3 (Evidentiary Standards for Determining Compensability of
Unfitting Conditions) of this instruction specifies that any medical
condition incurred or aggravated during one period of service or authorized
training that recurs or is aggravated during later service or authorized
training, regardless of the time between, should normally be considered
incurred in the line of duty (LOD) provided the condition or subsequent
aggravation was not the results of the member's misconduct or willful
negligence.  In those cases in which the service member reverts to a
civilian status after the condition is incurred, the service member must
prove by the preponderance of evidence that the medical condition was
incurred or aggravated in the LOD and was not due to intentional misconduct
or willful negligence.

15.  DoDI 1338.38, Paragraph E4 (Conditions Presumed to be Pre-Existing)
specifies that the occurrence of disease as described in paragraph E.4.a
and E.4.b., shall be presumed to have existed prior to entry into military
service. E.4.a. specifies that signs or symptoms of chronic disease
identified so soon after the day of entry on military service (usually
within 180 days) that the disease could not have been originated in that
short a period will be accepted as proof that the disease manifested prior
to entrance into active military service.  E.4.b. specifies that signs or
symptoms of communicable disease within less than the medically recognized
minimum incubation period after entry on active service will be accepted as
evidence that the disease existed prior to military service.  E.5. (Medical
Waivers) specifies that members who entered the service with medical waiver
for a pre-existing condition and who are subsequently determined unfit for
the condition shall not be entitled to disability separation or retired pay
unless military service permanently aggravated the condition or hastened
the condition's rate of natural progression.  Members granted medical
waivers shall be advised of this provision at the time the waiver is
granted.  E.6. (Treatment of Pre-Existing Conditions) specifies that
generally recognized risks associated with treating preexisting conditions
shall not be considered service aggravation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his narrative reason for separation
from the Army should be changed because his injuries occurred after he
entered the Army and that they were not as a result of a pre-existing
injury was found to have merit.

2.  The evidence of record shows that the applicant's MEB, PEB, medical
records, Line of Duty Investigation, and his sworn testimony were
evaluated.  Evidence also shows that his medical problems resulted in
multiple injuries as the result of a motor vehicle accident.  Evidence
further shows that the Formal LOD determined that the accident occurred
“Not In The Line of Duty”, but was due to the applicant’s own misconduct.
Therefore, the applicant’s record should be corrected to show that he was
discharged based on Disability, Not in the Line of Duty.

BOARD VOTE:

___RTD_  ___MJF__  ___RML_  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___        __  ___       _  ___            DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

      a.  changing Item 25 (Separation Authority) of the applicant’s DD
Form 214 to show AR 635-40, Para 4-24b (6);

      b.  changing Item 26 (Separation Code) of the applicant’s DD Form 214
to show JFP; and

      c.  changing Item 28 (Narrative Reason for Separation) of the
applicant’s DD For 214 to show “Disability, Not in the Line of Duty.”




                                  ____Richard T. Dunbar_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014005                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/05/03                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |MR. SCHWARTZ                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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