IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010


		DOCKET NUMBER:  AR20100008455 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was retired from active duty due to physical disability.

2.  The applicant states he should have been processed for disability separation.  He was told he would get help when he returned to his National Guard unit; however, he got none.  The Department of Veterans Affairs (VA) diagnosed him with a traumatic brain injury (TBI).

3.  The applicant provides copies of his 28 December 2009 rating decision and award letter from the VA, his 17 September 2005 DD Form 214, orders for his Combat Infantryman Badge, a 22 June 2005 DA Form 3349 (Physical Profile), a 10 February 2005 medical examination, a 2 February 2005 medical record, an
8 February 2005 hostile action casualty report, and a self-authored sworn statement and one from a companion.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a member of the Washington Army National Guard (ARNG), was mobilized from November 2004 to September 2005.  He served in Iraq as an infantryman from 3 January to 10 March 2005.

2.  According to a contemporaneous sworn statement by the driver, the applicant was the turret gunner on a 5 February 2005 mounted patrol when a nearby vehicle was struck by an improvised explosive device (IED).  The applicant immediately complained of ringing in his ears and within a couple of days he was complaining of significant hearing loss.

3.   Active duty medical records show:

	a.  on 6 February 2005 the applicant sought medical attention for complaints of hearing loss secondary to an IED incident 30 days earlier;

   b.  he had an apparent reoccurrence of pneumonia on 18 March 2005, but radiology showed no active disease;

	c.  on 29 March 2005 the applicant was on medical hold at Madigan Army Hospital, Tacoma, WA.  He complained of right ear pain, hearing loss, breathing problems, and family issues;

	d.  the applicant attended his first group therapy session, on 31 March 2005. He was found fully alert with a tense affect.  His mood and speech were normal and his attitude cooperative.  He displayed good judgment and no hallucinations or delusions.  Cognitive functioning with general knowledge and memory were intact.  Formal diagnoses were:

* Axis I		Post Deployment Adjustment Problems
* Axis II		Deferred
* Axis III	Ear drums burst
* Axis IV	None noted
* Axis V		Global Assessment of Functioning (GAF) score was 68;

   e.  examination and testing determined that his tympanic membranes and acoustic response were within normal limits.  The applicant met the requirements for an H-2 [hearing] profile;

   f.  his tonsils were removed on 29 April 2005; and

   g.  on 22 June 2005, Madigan Army Hospital issued a permanent physical profile of "2" for an injury induced hearing condition.  There were no significant restrictions on his assignments or activities.

4.  The applicant was released from active duty on 17 September 2005 and transferred back to his ARNG unit.

5.  Effective 9 September 2007 the applicant was discharged from the ARNG for unsatisfactory participation.

6.  A VA rating decision, dated 28 December 2009, provided the following evaluations.  Effective 6 February 2009, he was rated as service-connected for:

	a.  post traumatic stress disorder, rated at 10 percent (%);

	b.  tinnitus, rated at 10%;

	c.  vertigo, rated at 10%

	d.  hearing loss, rated at 0%

	e.  TBI, rated at 0%; and 

   f.  a stab wound to left flank, rated at 10 percent, unchanged from a prior evaluation.

7.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade or rating because of disability incurred while entitled to basic pay.

8.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating.

9.  Army Regulation 40-501, paragraph 3-3a, provides, in pertinent part, that performance of duty despite impairment would be considered presumptive evidence of physical fitness.

10.  Title 38, U.S. Code, sections 310 and 331, 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.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.


DISCUSSION AND CONCLUSIONS:

1.  The applicant states he should have been processed for disability retirement.  He was told he would get help when he returned to his National Guard unit; however, he got none.  The VA diagnosed him with TBI.

2.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, the Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

3.  The applicant met the requirements for an H-2 physical profile. The permanent profile rating of "2" indicated a hearing condition, but there were no significant restrictions on his assignments or activities.

4.  Because the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

5.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20100008455



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ABCMR Record of Proceedings (cont)                                         AR20100008455



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