IN THE CASE OF:	  

		BOARD DATE:	  31 November 2010

		DOCKET NUMBER:  AR20100011544 


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 reconsideration of an earlier request for a medical retirement.

2.  The applicant states:

* He was not chaptered out of the Army, he was honorably discharged
* He has Department of Veterans Affairs (DVA) benefits with 80 percent service connected disability
* He does not know what happened but someone dropped the ball on his discharge
* According to Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) his Medical Evaluation Board (MEB) should have been resumed and completed since he was not chaptered out of the Army
* He is in the Individual Ready Reserve for two more years and holds a military identification card
* He was placed on the Temporary Disability Retired List (TDRL) with 40 percent in 2007 and was brought back on active duty a few days later for medical reasons (related to his neck)
* Currently he is not working due to his chronic Post Traumatic Stress Disorder (PTSD), Crohn's Disease, traumatic brain injury (TBI), glaucoma, and more


* He is a family man and has no other income
* He believes he deserves his retirement because of his service to his country

3.  The applicant provides:

* DVA documentation
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 9 January 2007 and 13 February 2009
* Physical Evaluation Board (PEB) Proceedings
* Convening authority action, dated 3 December 2008
* Discharge orders, dated 11 February 2009
* Various forms of identification

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090009103, on 1 December 2009.

2.  The DVA documentation provided by the applicant is new evidence which will be considered by the Board.  This documentation shows the applicant was granted service connection for PTSD (also claimed as depression and insomnia) (50 percent); cervical spine fusion (30 percent); left knee arthroscopic release of recurrent patellar instability (claimed as a left knee condition) (10 percent); Crohn's Disease (also claimed as GERD) (10 percent); TBI (10 percent); hemorrhoids (0 percent); and retropatellar pain syndrome (claimed as a right knee condition) (0 percent).  His overall combined rating is 80 percent.  The DVA rating decision also shows that in 2007 the DVA rated his Crohn's Disease at 
10 percent and his knee at 10 percent.  

3.  The applicant enlisted in the Regular Army (RA) on 23 November 2004 for 
3 years and 21 weeks.  He was awarded military occupational specialty 13B (cannon crewmember).  The highest rank/grade he attained during his tenure of service was specialist.

4.  On 3 October 2006, an MEB diagnosed the applicant with bilateral chondromalacia patella; history of recurrent patella instability; PTSD, chronic; and Crohn's Disease.  The MEB referred his case to the PEB.


5.  On 6 November 2006, a PEB found the applicant physically unfit due to Crohn's Disease requiring methotrexate and renicade after not responding to 
prednisone; requires half days due to constant severe abdominal pain and need 
to use the bathroom frequently (rated 30 percent disabling); and bilateral knee pain secondary to chrondromalacia patella and history of recurrent patellar instability status post-arthroscopic lateral release of the left knee (rated 
10 percent disabling).  The PEB found the MEB diagnosis of PTSD not separately unfitting since it did not appear to be interfering with the performance of his duties.  The PEB recommended that the applicant be placed on the TDRL, rated 40 percent disabled.

6.  On 14 December 2006, orders were issued retiring the applicant on 9 January 2007 and placing him on the TDRL effective 10 January 2007.

7.  On 10 January 2007, the applicant's separation orders were revoked for unknown reasons.

8.  On 10 March 2008, the applicant's term of service was extended to 16 October 2008 for medical reasons.

9.  On 20 August 2008, court-martial charges were preferred against the applicant for wrongful distribution of oxycodone and conspiring with (other named Soldiers) to commit offenses under the Uniform Code of Military Justice (UCMJ) of larceny of currency and government benefits of a value of more than $100.00, the property of the U.S. Army; and defrauding the United States by orchestrating sham marriages in violation of U.S. Code, section 371 and Title 8, U.S. Code, section 1325.

10.  On 12 September 2008, the applicant was convicted by a special court-martial of wrongfully distributing oxycodone, larceny of lawful currency and government benefits, and defrauding the United States of its governmental function and rights of administering the immigration laws; and in order to effect the object of the conspiracy, the applicant did orchestrate sham marriages by paying a number of Soldiers sums of money in order to establish Basic Allowance for Housing (BAH) and Variable Housing Allowance (VHA) and for the purpose of obtaining lawful permanent resident status for foreign-born nationals.  The applicant was sentenced to be reduced to E-1, to forfeit $750.00 pay per month for one month, to be confined for 6 months, and to pay a fine of $10,000.00 (and to serve an additional six months of confinement if the fine was not paid).  He was released from confinement on 9 February 2009.



11.  On 13 February 2009, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He had 3 years, 9 months, and 23 days of active service.

12.  In the processing of the applicant's original case in 2009, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official noted the applicant's claim of an error is correct as he should have had his disability processing continued after his release from confinement.  He states that the available records do not provide sufficient evidence to ascertain the applicant's medical condition at the time of his separation from the military.  Therefore, he recommended that the PEB's recommendation be approved, that the applicant be placed on the TDRL, and that he be required to undergo an immediate reevaluation to see if final disposition of his case can be made.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4–1, states, in pertinent part, that Soldiers charged with an offense under the UCMJ or who are under investigation for an offense(s) chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue disability processing unless:

   a.  The investigation ends without charges.

   b.  The officer exercising proper court-martial jurisdiction dismisses the
charges.

   c.  The officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.

DISCUSSION AND CONCLUSIONS:

1.  Since the applicant was not sentenced to a punitive discharge at his special court-martial, it appears he should have had his disability processing continued after his release from confinement. 

2.  The available records do not provide sufficient evidence to ascertain the applicant's medical condition at the time of his separation from the military.    Therefore, there is no basis for granting the applicant's request for a permanent medical retirement.     

3.  However, in accordance with the USAPDA advisory opinion, the findings of the PEB (dated 6 November 2006) should be approved and the applicant should be placed on the TDRL effective 14 February 2009, rated 40 percent disabled.  An immediate TDRL re-evaluation should be directed.

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 partial amendment of the ABCMR’s decision in Docket Number AR20090009103, dated 1 December 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the 6 November 2006 PEB findings were approved;

	b.  voiding his 13 February 2009 honorable discharge and showing he was retired by reason of temporary disability on 13 February 2009;

	c.  showing he was placed on the TDRL effective 14 February 2009; and

	d.  conducting an immediate TDRL re-evaluation. 

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 a permanent medical retirement at this time.




      ___________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)                                         AR20100011544



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ABCMR Record of Proceedings (cont)                                         AR20100011544



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