IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100009337 


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) for the period ending 19 April 2004 to show he was medically retired or medically discharged instead of being honorably released from active duty.

2.  The applicant states, in effect, he should have been medically boarded and retired since his illness occurred while he was on active duty and serving in Iraq.  He was advised of this by his counselor, an Army Wounded Warrior Program advocate.

3.  The applicant provides:

* his DD Form 214 for the period ending 19 April 2004
* two Department of Veterans Affairs (DVA) rating decisions 
* two memoranda from the Florida Army National Guard (FLARNG) 
* a Standard Form (SF) 558 (Emergency Care and Treatment)
* an SF 513 (Consultation Sheet)
* four pages of emails 
* a portion of his VA case record


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.  The applicant's records show he enlisted in the FLARNG on 2 August 2001.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  On 16 January 2003, he was mobilized with his unit, 1st Battalion, 124th Infantry, and ordered to active duty in support of Operation Noble Eagle/Enduring Freedom at Fort Stewart, GA.  He subsequently served in Iraq and Jordan from 8 March 2003 to 12 March 2004.

4.  On 19 April 2004, he was honorably released from active duty.  The DD Form 214 he was issued shows he completed 1 year, 3 months, and 4 days of net active service this period.  Item 23 (Type of Separation) of his DD Form 214 shows the entry "Release from Active Duty" and item 28 (Narrative Reason for Separation) shows "Completion of Required Active Service."

5.  The applicant provides a DVA rating decision, dated 9 March 2005, wherein it states he is granted 70 percent (%) disability rating percentage for service-connected post traumatic stress disorder (PTSD), effective 20 April 2004.

6.  The applicant provides partial records from his DVA claims record.  These records contain:

	a.  an SF 600 (Chronological Record of Medical Care), 387th Medical, Jordan, dated 7 April 2003, wherein it states he was diagnosed on 6 April 2003, with neurotic depression, he was given a prescription for Zoloft, and he meets the criteria for major depressive disorder.

	b.  an SF 558, 28th CSH (Combat Support Hospital), Iraq, dated 7 June 2003, wherein it states he was being treated for depression and he told the doctor he had not taken Zoloft for 7 days.  The medical disposition is unclear.

	c.  a DA Form 3822-R (Report of Mental Status Evaluation), 28th CSH, Iraq, dated 12 June 2003, wherein it states he does not show evidence of a psychiatric problem warranting medical disposition.

	d  an SF 513, Behavioral Health Clinic, Fort Stewart, GA, dated 16 March 2004, wherein it states a medical consultation was requested because he showed signs of anger/argumentative; deployment triggered depression; and needs a reevaluation and prescription for Zoloft.

	e.  a DA Memorandum, Behavioral Health Clinic, Fort Stewart, dated
16 March 2004, wherein it states he was diagnosed with adjustment disorder, and "There is no DSM-IV [Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition] psychiatric disease or defect on Axis I that warrants disposition by Medical Evaluation Board (MEB).  Any Axis I condition noted is either not unfitting or not of the severity to warrant MEB.  Service member meets retention standards as prescribed by Army Regulation 40-501 (Standards of Medical Fitness).  Service member is psychiatrically cleared to return to the custody of the command.  Service member is cleared for any administrative action deemed appropriate by the command to include demobilization or deployment."  On
29 March 2004, the commander added the following statement: "Based upon review of applicable medical documents, there is no evidence to suggest that alcohol, drug usage, or misconduct contributed to the listed injury.  Therefore, the presumption of in line of duty (LOD) applies."

7.  A FLARNG memorandum, dated 3 February 2006, indicates a determination was made the applicant did not meet medical retention standards.  

8.  On 4 April 2006, the applicant was discharged from the ARNG and as a Reserve of the Army due to being medically unfit for retention.

9.  On 23 September 2010, an advisory opinion was obtained from the National Guard Bureau (NGB), Chief, Personnel Policy Division.  The advisory official opined, in pertinent part, the following:

	a.  In consultation with the Chief Surgeon’s Division Office, the applicant should have been afforded the opportunity to appear before an MMRB (MOS Medical Retention Board).  There is no record of an LOD having been submitted on behalf of the Soldier.  FLARNG should complete a DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status); appoint an investigating officer; enter the case into the LOD module, and submit the Soldier’s request to ARNG-HRP-LOD for approval or disapproval.

	b.  There is no evidence that shows reasonable steps were taken to bring the 3 February 2006 memorandum to the attention of the Soldier in accordance with the requirements of Army Regulation 135-178 (Enlisted Administrative Separations), chapter 3, which provides that service members referred for physical disability evaluation shall be afforded comprehensive counseling on the significance of the actions proposed and the related rights, entitlements, and benefits.  There is no supporting documentation indicating he was counseled as to his rights to accept referral to an MEB or a Physical Evaluation Board (PEB) for the purpose of disability benefits determination.  Documentation from the DVA, dated 9 March 2005, indicates his PTSD and depression were service-connected.   Therefore, an LOD is appropriate.

	c.  Recommend his medical records be sent before an MMRB/MEB for disability evaluation processing, and then referral to the PEB to determine suitability of a medical discharge.  The FLARNG supports this recommendation.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.  

11.  Paragraph 3-1 of Army Regulation 635-40 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

12.  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.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be changed to reflect a medical retirement was carefully considered; however, there is insufficient evidence to support this contention.

2.  With respect to his release from active duty, records show he was diagnosed with and treated for neurotic depression while deployed to Jordan and Iraq.  However, his records state he did not show evidence of a psychiatric problem warranting medical disposition.

3.  The evidence of record shows prior to his release from active duty he was medically evaluated and diagnosed with adjustment disorder.  It was determined his condition was not unfitting or not of the severity to warrant an MEB, he met retention standards, and he was cleared for demobilization.  His release from active duty was appropriate.  Therefore, he is not entitled to the requested relief.

4.  With respect to his discharge from the ARNG, the NGB advisory official opined he should have been afforded the opportunity to appear before an MMRB; he did not receive adequate counseling on his right to accept referral to an MEB or a PEB for disability evaluation; nor was there a record of an LOD having been completed.  Therefore, it is recommended the FLARNG complete an LOD investigation and if the results warrant it, his records be further considered for disability processing.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the Florida Army National Guard conduct a Line of Duty investigation of the individual concerned. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his DD Form 214 to reflect a medical retirement or a medical discharge.



      ___________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)                                         AR20100009337



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ABCMR Record of Proceedings (cont)                                         AR20100009337



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