IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100016467 


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 a medical discharge.

2.  The applicant states he has a traumatic brain injury (TBI) from his service in support of Operation Iraqi Freedom.  He states he reenlisted in May 2007 so the appropriate paperwork could be filed for his combat-related injury.  He states the Army National Guard owes him compensation for his combat-related injuries.  

3.  The applicant provides the following evidentiary documents in support of his application:

* DD Form 214WS (DD Form 214 Worksheet)
* DD Form 215 (Correction to DD Form 214)
* Line of Duty Determination, dated 2 April 2009
* letter from the Georgia Army National Guard (GAARNG), dated 27 May 2010
* excerpts from his Department of Veterans Affairs (VA) medical records
* VA Rating Decisions, dated 9 February 2008 and 19 May 2009 
* excerpts from his military medical records 
* multiple letters from the applicant's spouse 
* multiple photographs





CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the GAARNG on 17 May 1995.  He entered active duty on 11 September 1995 to attend his initial entry training.  He completed his training and was awarded military occupational specialty (MOS) 11B (Infantryman).  On 26 January 1996, he was honorably released from active duty and transferred to the GAARNG upon completion of required active service.  He had competed 4 months and 16 days of active military service.

2.  On 6 December 2004, he was mobilized and ordered to active duty in support of Operation Iraqi Freedom.  He was assigned to Company C, 1st Battalion, 12th Infantry.

3.  On 24 August 2005, he was awarded the Combat Infantryman Badge for participating in ground operations under hostile fire in Iraq on 2 July 2005.  

4.  On 7 December 2005, he was awarded the Purple Heart for wounds received on 2 July 2005.  An excerpt from his military medical record provided by the applicant shows that on 3 July 2005 he received medical treatment for pain in his neck and shoulder due to injuries sustained from an improvised explosive device (IED) on 2 July 2005.  

5.  On 31 May 2006, the applicant was honorably released from active duty upon completion of required active service.  He had completed 1 year, 5 months, and 25 days of net active service this period.  

6.  The Adjutant General, State of Georgia issued Orders 114-005, dated 23 May 2008, showing the applicant was honorably separated from the GAARNG effective 16 May 2008.  

7.  The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 16 May 2008, item 23 (Authority and Reason), shows he was, honorably, separated under the provisions of paragraph 8-35a, National Guard Regulation 600-200 upon expiration term of service (ETS).

8.  The applicant's records maintained in the interactive Personnel Electronic Records Management System (iPERMS) contain DA Forms 2166-8 (NCO Evaluation Report [NCOER]) for the periods from 1 December 2005 through 30 November 2006 and from 1 December 2006 through 30 November 2007.  These two NCOERs, prior to his ETS, show the applicant competently and successfully performed his duties as an Infantry squad leader in MOS 11B.  His senior rater stated he had superior potential for promotion and/or service in positions of greater responsibility. 
9.  The applicant's complete medical service records are not available for review.  There are no records to show he went before a medical evaluation board (MEB). 

10.  The applicant provided a VA Rating Decision, dated 6 February 2008, that states he was found to have service-connected conditions related to his military service as follows:

* Right shoulder tendonitis, rated 10 percent disabling
* Post concussion syndrome with mild memory loss (residuals of traumatic brain injury [TBI]), rated 10 percent disabling
* Migraines, rated 10 percent disabling

11.  This same VA Rating Decision determined his pancreatitis was not related to his military service.  He was provided a combined rating of 60 percent.  There is an indication that the VA made an earlier decision.  However, it is not available for the Board's review.

12.  He provided a line of duty determination from the NGB issued on 2 April 2009 that states:

The finding IN LINE OF DUTY will be overturned to read "NOT IN LINE OF DUTY – DUE TO OWN MISCONDUCT" for PANCREATITIS…injury, disease, or death that results in incapacitation because of abuse of alcohol and other drugs is not in line of duty.  It is due to own misconduct. 

13.  He provided a VA Rating Decision, dated 18 May 2009, that states his post-traumatic stress disorder (PTSD) was increased from 50 percent to 100 percent effective 2 February 2009.  The service-connected conditions for migraines and post concussion syndrome with mild memory loss (residuals of TBI) were not changed.  Further, the applicant was considered competent with the likelihood his PTSD would improve.

14.  He provided a letter from the GAARNG, dated 27 May 2010, that was addressed to his wife.  Within this letter, the GAARNG stated the applicant was discharged in accordance with established policy based on ETS.  He had no remaining contractual or statutory military service obligations.  She was advised to appeal to the Army Board for Correction of Military Records (ABCMR).  In addition, she was advised the ABCMR could also address the applicant's medical conditions of pancreatitis, alcohol dependency, and PTSD.  The GAARNG representative stated that the applicant's TBI was diagnosed after he was discharged.

15.  He provided a personal letter from his wife to the Board that outlines his military medical treatment from the residual effects of the IED that included nausea, vomiting, and stomach discomfort.  The applicant's wife believes the applicant should have been placed in the medical hold company and not processed off active duty when he returned from Iraq.  She believes had he been placed in this company he would have been diagnosed with TBI and PTSD.  Upon his return home, he worked for the GAARNG in an active duty special work (ADSW) status.  While working, he suffered a pancreatic attack due to heavy drinking and he was hospitalized for an extended period.  His ADSW orders ended and the family was left with no income or benefits.  They received incapacitation pay for 4 months.  She states he also reenlisted for 1 year so the GAARNG could "MEDICALLY DISCHARGE" him.  

16.  The photographs the applicant provided show him in uniform with a bloody nose presumably after the IED explosion.  Within the pictures is a damaged Bradley Fighting Vehicle.

17.  References:

	a.  Army Regulation 40-501, paragraph 3-3b(1), 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.

	b.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  Chapter 4 of this regulation contains guidance on processing through the PDES, which includes the convening of a MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.


	c.  Title 38, U.S. Code permits the VA to award compensation for a medical condition that 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 contends he should receive a medical discharge based on his diagnosis of TBI in 2007. 

2.  The applicant received the Purple Heart for wounds he incurred from the residuals of an IED on 2 July 2005.  However, based on his NCOERs, he continued to perform his duties as an Infantryman, receiving successful performance evaluations.  There is no record showing he was diagnosed with TBI and referred to an MEB while he was mobilized in support of Operation Iraqi Freedom or as an active member of the GAARNG.  He was honorably separated from the GAARNG upon his ETS.

3.  The applicant provided two VA ratings decisions showing he had a combined rating of 100 percent for PTSD, tendinitis in his right shoulder, migraines and post concussion syndrome with mild memory loss (residuals from TBI).  

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.  The applicant did not have any diagnosed medically unfitting condition that required physical disability processing.  Therefore, there is no basis for a physical disability separation or "medical discharge."

5.  The ABCMR does not correct records to establish eligibility for Federal or state Veterans' programs to include financial compensation.





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)                                         AR20100016467



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ABCMR Record of Proceedings (cont)                                         AR20100016467



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