IN THE CASE OF:	  

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090011624 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the expiration of term of service (ETS) reason for his discharge on his NGB Form 22 (Report of Separation and Record of Service) be changed to show he was medically retired and left the military under the provisions of Title 10, U.S. Code, Chapter 61, Section 1201; and he be awarded the Combat Action Badge (CAB).

2.  The applicant states the following:

* South Dakota Army National Guard (SDARNG) failed to refer and process him through the Army Physical Disability Evaluation System (PDES) prior to his ETS
* He should have received a 30 percent (%) disability rating percentage
* He subsequently received a 40% disability rating percentage from the Department of Veterans Affairs (VA)
* He was refused a mental status evaluation he requested at the demobilization station at Fort McCoy, WI and was told he would receive an in-depth evaluation back at South Dakota
* He received no Department of Defense (DOD) evaluation and had to get his evaluation from the VA on his own
* The VA diagnosed him with a Post Traumatic Stress Disorder (PTSD) on 19 January 2006
* SDARNG initiated no evaluation in May 2007, claiming he was already under VA care
* He didn't receive his medical records until 18 September 2008
* He was denied the CAB in theater because his unit believed you had to fire back on the enemy and refused to hear his explanation of the regulation

3.  The applicant refers to his VA claim and records maintained at the Denver Regional Office and provides a Congressional Inquiry packet.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 5 November 2004, while serving in the SDARNG, the applicant was ordered to active duty in support of Operation Iraqi Freedom (OIF).  He served in Iraq from 28 December 2004 through 19 October 2005 with the 238th Aviation Maintenance Company in military occupational specialty 15T (UH-60 Repairer).

3.  On 6 September 2005, the applicant was evaluated by a clinical psychologist at the Ellsworth Air Force Base Life Skills Support Center Clinic, SD.  This evaluation resulted in a determination the applicant did not meet the criteria for a mental health diagnosis for disqualification from continued active duty service.  The examining official further indicated the applicant's mental health evaluation was within normal limits and the applicant denied suicidal or homicidal ideation.  It further indicated in spite of the lack of a mental health diagnosis, the applicant had underlying family stressors due to marital conflict, financial stress, and worries about the care of his daughter.  It further indicated that based on these stressors, it would be in the applicant's best interest if he did not complete his deployment and was separated from active duty.  However, the final decision on this would rest with his chain of command.

4.  On 10 October 2005, a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) was prepared on the applicant.  The flagging action was based on his Army Physical Fitness Test (APFT) failure.

5.  By Headquarters, Fort McCoy, Order 287-126, dated 14 October 2005, the applicant was released from active duty (REFRAD), not by reason of physical disability, and returned to his SDARNG unit, effective 30 October 2005.

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his REFRAD shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service.

7.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 20 October 2005, shows the applicant had mild mid-high frequency hearing loss in the right ear.  The details of the accident are outlined in item 15 of the form and indicate the applicant was about 100 meters from a mortar blast on
8 October 2005 at Balad Airbase LSA [Logistics Support Area] Anaconda.  He experienced decreased hearing and tinnitus in the right ear.

8.  The applicant's Official Military Personnel File (OMPF) is void of any medical treatment records or other documents that indicate he was suffering from a physically or mentally disqualifying condition that would have supported his separation/retirement processing through medical channels at the time of his REFRAD. 

9.  The applicant's OMPF is also void of any orders or other documents showing he was recommended for or awarded the CAB by proper authority while serving in Iraq.

10.  On 8 July 2006, a post-deployment health reassessment (PDHRA) was completed on the applicant.  The examiner concluded that while there were minor concerns related to PTSD, Anger/Aggression, and a major concern with social/family conflict, referral was not indicated.

11.  The applicant's Noncommissioned Officer Evaluation Report (NCOER) for the period 1 December 2005 through 30 November 2006, for which he was rated as a UH-60 Repairer Team Chief, shows, in part, that he was able to accomplish assignments because of his skills and knowledge.

12.  On 22 June 2007, the applicant was honorably discharged from the ARNG, by reason of ETS, after completing a total of 12 years of military service for pay.


13.  The applicant provides an undated decision from the VA that indicates he was granted service-connection for the following conditions with the disability percentages indicated, with a combined disability rating of 40%:

* PTSD - 30%
* Tinnitus - 10%
* Carpal and cubital tunnel syndrome right upper extremity- 10%
* Carpal and cubital tunnel syndrome left upper extremity - 0%

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 or her office, grade, rank, or rating.

15.  Chapter 3 of the same regulation contains guidance on standards of unfitness because of physical disability and states the following in the paragraphs indicted:

	a.  Paragraph 3-1 - 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating;

	b.  Paragraph 3-2b(1) - 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service; and

	c.  Paragraph 3-2b(2) - When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

16.  Title 38, U.S. Code, 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.

17.  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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

18.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Chapter 8 contains guidance on the award of badges and tabs of United States origin.  Section II contains guidance on award of combat skill badges.  Paragraph 8-8 contains guidance on the CAB.  It states the requirements for award of the CAB are branch and military occupational specialty (MOS) immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations, or performing offensive combat operations is not required to qualify for the CAB. 

19.  Paragraph 8-8b of the awards regulation contains the specific requirements for award of the CAB.  It states the CAB is not intended to award all Soldiers who serve in a combat zone or imminent danger area.  Specific eligibility requirements include the following:

	a.  Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized;

	b.  Soldier must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement; and

	c.  Soldier must not be assigned or attached to a unit that would qualify the Soldier for the CIB/CMB.  For example, an 11B assigned to Corps staff is eligible for award of the CAB.  However, an 11B assigned to an infantry battalion is not eligible for award of the CAB.

20.  Paragraph 8-8g contains guidance on retroactive awards and states for service after 18 September 2001, applications with supporting documents will be forwarded through the first 2-star general in the chain of command to United States Army Human Resources Command, ATTN: AHRC-PDO-PA, Alexandria, VA 22332-0471.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the authority and reason for his discharge from the ARNG listed on his NGB Form 22 should be changed to show he was medically retired has been carefully considered.  However, the evidence is not sufficient to support granting this portion of the requested relief.
2.  By regulation, the mere presence of impairment does not, in and 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 due to his office, grade, rank, or rating.

3.  A mental status evaluation completed on the applicant in September 2005 confirms he suffered from no disabling condition that would have warranted his processing through the PDES.  Further, a health assessment completed on the applicant during his demobilization in 2006, while noting minor problems, determined there was no medical basis supporting his referral for processing through the PDES.  In addition, his NCOER for the period ending 30 November 2006 indicated he was able to perform his duties.

4.  The applicant continued to serve in the ARNG through his ETS on 22 June 2007, and there is no evidence to show he could not perform his duties.  This establishes a presumption of fitness and shows whatever conditions he may have suffered from did not prevent him from reasonably performing the duties of his office, grade, rank, or rating.

5.  The evidence shows the applicant is being treated and compensated for his service-connected medical conditions by the VA.  This is the proper agency to provide these services for service-connected conditions that were not found to be unfitting for further service through the PDES.  As a result, it appears there is no evidence of an error or injustice that would support a change to the authority and reason for the applicant's discharge.

6.  The evidence fails to show the applicant was ever recommended for or awarded the CAB by proper authority while serving on active duty, or that he ever applied for retroactive award of the CAB through ARNG channels upon his return to his unit.  As a result, absent any input from his chain of command in the theater, the available evidence of record and independent evidence provided by the applicant is not sufficient to determine the level of his engagement with enemy forces and/or if he performed satisfactorily within the rules of engagement, as is required by regulation to support award of the CAB.

7.  The applicant is advised that although the evidence is not sufficient to support award of the CAB by this Board, he may pursue this matter by applying for retroactive award of the CAB in accordance with the applicable regulation.  If this avenue of relief is pursued, he should ensure he provides supporting witness statements, serious incident reports, or other documentation that can confirm his level of participation/engagement in combat action with enemy forces, and his satisfactory performance in accordance with the prescribed rules of engagement.
BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x_____________
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20090011624



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ABCMR Record of Proceedings (cont)                                         AR20090011624



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