IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100012010 


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 placement on the temporary disability retired list (TDRL) effective the date of his discharge from the Army and to be permanently retired by reason of physical disability 6 months later.

2.  The applicant states:

* he has a traumatic brain injury (TBI) and post traumatic stress disorder (PTSD)
* he is currently receiving a 70 percent service-connected disability rating from the Department of Veterans Affairs (VA) for TBI and PTSD
* he was injured during combat when he has in Afghanistan
* he suffered a head injury from a vehicle borne improvised explosive device (VBIED)
* the Army failed to refer him to a Medical Evaluation Board for disposition of his permanent injury

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Purple Heart orders and certificate
* VA Rating Decisions
* Medical Records
* VA point of contact information


CONSIDERATION OF EVIDENCE:

1.  After completing 3 years, 10 months, and 9 days of total active service, the applicant reenlisted in the Army for 3 years on 29 June 2005.  He had completed training as a construction equipment operator.  He deployed to Afghanistan on 16 February 2007.

2.  The applicant's medical records show that he was the driver of a vehicle that was hit by a VBIED on 28 June 2007.  He sustained a concussion with loss of consciousness for 3 to 5 seconds and he was admitted to Craig Joint Theater Hospital in Bagram.   He underwent a Military Acute Concussion Evaluation (MACE) to be assessed for a mild TBI.  He scored 26 points out of 30 points on the MACE which, according to the assessment, does not represent a clinically significant neurocognitive impairment.  He did have some difficulty maintaining concentration and he stated it was due to being nervous about testing.  Hospital outpatient records show that further testing was not indicated and he was cleared from combat stress.  He was diagnosed as having a concussion with loss of consciousness for 30 minutes or less, and with acute reaction to stress.  He was returned to duty on 29 June 2007 with future periodic assessments.

3.  The applicant returned to the U.S. on 14 May 2008.

4.  On 28 November 2008, the applicant was honorably released from active duty (REFRAD) at the completion of his required active service.

5.  A review of the applicant's records does not show that he was suffering from any illness or injury that was severe enough to process him for separation through medical channels.

6.  The applicant's noncommissioned officer evaluation report (NCOER) for the period 28 November 2008 through 22 July 2009 shows he was rated as "success" in all areas of NCO values and responsibilities and was fully capable of performing his duties.

7.  The applicant submits copies of VA Rating Decisions dated 16 December 2008 and 30 April 2009 showing he was awarded the following service connected disability ratings, effective 29 November 2008:

* PTSD – 30 percent
* tinnitus – 10 percent
* left ulnoid styloid fracture, with mild "TFCC" injury (claimed as residuals of fracture of left wrist) – 10 percent
* scar, residual of facial laceration – 10 percent
* TBI (claimed as headaches) – 40 percent

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

9.  Title 38, United States 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.  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.

10.  Army Regulation 40-501 (Standards of Medical Fitness), at chapter 3, provides standards for medical retention.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.

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

12.  Title 10, United States Code, section 1202, provides for the placement of a member on the Temporary Disability Retired List when the disability may be permanent.  Placement on the Temporary Disability Retired List requires that the member meet the criteria of Title 10, United States Code, section 1201.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting documents have been considered.  However, a review of his records does not show that he was suffering from any illness or injury severe enough to be process him for separation through medical channels.

2.  Although his records do show he suffered a concussion from a VBIEB and lost consciousness for 3 to 5 seconds, he was assessed for mild TBI and he scored 26 points out of 30 points on the MACE which did not represent a clinically-significant neurocognitive impairment.  After he was assessed he was returned to duty and he continued performing his duties until he was REFRAD.

3.  There is no evidence in his records that show he was unfit or unable to perform his duties while he was in the Army. To the contrary, his NCOER for the period ending 22 July 2009 shows he was fully capable of performing his duties after he was released from active duty in November 2008.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100012010



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ABCMR Record of Proceedings (cont)                                         AR20100012010



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