IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100020007 


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).

2.  He states he was supposed to be placed on the TDRL upon completion of his Medical Evaluation Board (MEB) and his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not reflect that.  He received an honorable discharge after completing an MEB with a 40 percent (%) disability rating percentage.  He was released from active duty in March 2009.  He was held against his will with no paperwork to justify it. 

3.  He provides:

* An MEB referral memorandum
* Reassignment Orders

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 September 2005.  He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).

2.  His Standard Form (SF) 600 (Chronological Record of Medical Care) shows he was evaluated in the Neuropsychology Clinic on 28 August and 2 September 2008.  The report stated the applicant had been referred for a neuropsychological evaluation after being diagnosed with a mild Traumatic Brain Injury (TBI) concussion in Operation Iraqi Freedom (OIF) in April 2007.

3.  Permanent Orders C256-181, issued by the U.S. Army Installation Management Command, Pacific Region, Headquarters, U.S. Army Garrison, Schofield Barracks, HI, dated 12 September 2008, deployed him on a temporary change of station (TCS) move to Iraq in support of OIF on or about 14 October 2008.

4.  On 16 October 2008, he was given a physical profile with a PULHES of 311212 for a concussion.  His profile noted a mild TBI and pending MEB.

5.  An undated Physical Disability Evaluation System (PDES) - Commander's Performance and Functional Statement, stated the applicant could not perform as an infantryman due to his profile.  His work performance had been poor in every capacity.

6.  On 28 October 2008, his command was advised that he had been referred to an MEB.

7.  In a Memorandum for Record, subject:  Commander's Statement for MEB, dated 12 December 2008, the rear detachment commander stated that upon reviewing the criteria for the applicant's pending Physical Evaluation Board (PEB), he had found several factors that could possibly disqualify the applicant for any medical discharge or retirement.  The applicant's original claim was an injury caused by either an improvised explosive device detonation or a vehicle rollover that occurred while deployed in Iraq in support of OIF.  During the period February 2007 to October 2007, his unit operated in the same primary area of responsibility that the applicant's unit was a part of.  Of all of the attacks that occurred, he did not recall the applicant ever being present or injured.  As a matter of fact, no medical evacuation (MEDEVAC) was ever initiated nor was the applicant ever treated for head injuries during combat operations.  As part of their commander's battle rhythm, they would review the pending combat injuries that affected their manpower and the applicant's name was never a part of those reviews.  He only learned of the applicant's pending MEB when he took command of the rear detachment in July 2008.

8.  The commander also stated when he approached the applicant about his injuries during a counseling session on 12 December 2008, he asked for a specific event that would have caused such injuries that would warrant an MEB.  He cited the MEDEVAC history of the unit and informed the applicant of his possible false statements.  The applicant's reply was that his injury was not sustained in combat (originally the applicant stated he could not remember how he got TBI), but that he was injured off-duty in a civilian rollover accident in a civilian vehicle (no police report or citation was available).  After several inconsistencies with the applicant's claims and his frequent change of story, the commander stated it was his duty to inform those that review the applicant's case that the unit could not stand by the applicant's claim.

9.  On 22 December 2008, he appeared before an MEB with the chief complaint of headaches and hearing loss.

10.  In a statement by Staff Sergeant (SSG) D---- M------, dated 26 December 2008, he stated that in regard to the applicant's recurring migraine headaches, he could think of one incident that could have led to those.  One night in Iraq, the applicant was driving a fully up-armored HMMWV (High-Mobility Multipurpose Wheeled Vehicle) with Sergeant First Class (SFC) H----- [vehicle commander] and himself [gunner].  SFC H----- and the applicant asked him if he could see anything in front of them, such as a hole or other obstacles.  He stated he could not see anything unless there was a hole like one foot in front of them.  Sure enough there was a huge hole less than one foot in front of them.  They crashed into it, failing so that their HMMWV was nose first in the ground.  They had to be yanked out by one of the other HMMWV's.  They were all pretty sore.  It was a violent enough impact that it could have easily have resulted in some long term effects.

11.  On 9 January 2009, the applicant's commander requested his retention on active duty to complete hospitalization treatment and a possible MEB/PEB.  The applicant concurred.

12.  On 12 January 2009, an MEB convened and found his diagnosis of headache syndrome to be unfitting.  The MEB stated the following conditions met retention standards:  TBI, right and left foot pain, right and left neurosensory hearing loss, neurosensory hearing loss, tinnitus, dyspepsia, and lumbago.  The MEB referred him to a PEB.  He concurred with the findings and recommendation of the MEB on 20 January 2009.

13.  In a letter, dated 21 January 2009, to the President, PEB, the applicant stated that in 2006 he was a passenger in the back seat of his friends Ford Explorer truck.  They were driving to Hanama Bay, HI, when the front tire rod broke and the truck flipped over about 6 times.  He was unconscious at the time and he was not transferred by an ambulance to any medical center.  Later on that night he went to the medical center at Schofield Barracks because he was in a lot of pain.  They released him with medication and his wife took him home.  Everything was notated in his medical records about the accident and he was not driving the truck.
14.  A PEB convened on 20 February 2009 and considered the applicant's disability of headache syndrome evaluated as residual to TBI resulting from his 2006-2007 Iraq deployment during which he was involved in a military vehicle accident.  The PEB stated the Commander's Performance and Functional Statement noted the applicant was not performing duties in his MOS, could not perform some of his assigned duties in the unit, and could not perform his alternate duty well because of the described symptoms.  Therefore, he was determined to be unfit for military service in his primary MOS due to headache syndrome evaluated as residual of TBI.  The PEB determined the other conditions listed on the medical board diagnosis met retention standards and found those conditions to be not unfitting and therefore not ratable.  His unfitting impairments were rated at a disability level of 40%, but were such that a permanent evaluation was not yet possible and therefore recommended placing him on the TDRL.

15.  On 23 February 2009, he concurred with the findings and recommendation of the PEB.

16.  On 26 February 2009, the U.S. Army Physical Disability Agency (USAPDA) approved the findings of the applicant’s informal PEB.  

17.  Orders Number 064-0014, issued by the Directorate of Human Resources, U.S. Army Garrison, Schofield Barracks, HI, dated 5 March 2009, retired the applicant on 23 March 2009 and placed him on the TDRL effective 24 March 2009.

18.  On 18 March 2009, a PEB staff member informed the USAPDA that the     21 January 2009 statement from the applicant's commander, who was also in-theater with the applicant, was inadvertently left out of the case file by the MTF.  The staff member stated the statement called into question the determination by the PEB even if the condition should be rated as a TBI vice migraines.  The applicant was due to begin out processing in 2 days, and they did not have time to investigate before taking some action.  The staff member requested that the transfer orders be cancelled and the applicant's case be returned to the PEB for reevaluation.

19.  On 18 March 2009, the Chief, Operations Division, USAPDA, returned the applicant's case to the PEB.

20.  On 10 April 2009, by memorandum for the President of the PEB, Tripler Army Medical Center requested that is MEB be suspended pending resolution of his command's ongoing investigation.  A Suspension of Favorable [Personnel] Actions was attached.
21.  On 17 April 2009, the Army Physical Evaluation Board, Tacoma, WA, advised the Tripler Army Medical Center that the applicant's case was suspended per their 10 April 2009 memorandum.  

22.  The available record is void of the final PEB disposition or the commander's investigation.  His records contain a DD Form 214 which shows he was honorably released from active duty on 22 July 2009 by reason of completion of required active service.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth the basic authority for the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

24.  Army Regulation 635-40 states that line of duty decisions are reached according to policies and procedures prescribed in Army Regulation 600-8-4.  Copies of the line of duty decision, DA Form 2173 (Statement of Medical Examination and Duty Status), or DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status) must be included in the official records of a PEB case.

25.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) states the line of duty determination is presumed to be "in line of duty - Yes" without an investigation in the case of injuries incurred as a result of enemy action.  In all other cases of death or injury (with two listed exceptions) a line of duty investigation must be conducted.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was diagnosed with headache syndrome evaluated as residual to TBI resulting from a military vehicle accident during his deployment.  It appears that because it was believed his injuries were incurred as a result of enemy action, no line of duty investigation was required and, on        20 February 2009, a PEB found his condition unfitting, but unstable for final rating and recommended placement on the TDRL.  The PEB was approved and orders were published on 5 March 2009 placing him on the TDRL with an effective date of 24 March 2009.

2.  On 18 March 2009, a staff member at Walter Reed Army Medical Center advised that a statement from the applicant's commander, who was also in-theater with the applicant, which was inadvertently left out of the case file by the MTF, called into question the determination by the PEB.  The commander did not recall the applicant ever being present or injured.  No MEDEVAC was ever initiated nor was the applicant ever treated for head injuries during combat operations.  The applicant also was never part of the reviews of combat injuries that affected their manpower.

3.  The applicant's commander also stated that after counseling the applicant, the applicant admitted that his injury was not sustained in combat but that he was injured off-duty in a civilian rollover accident in a civilian vehicle (no police report or citation was available).  After several inconsistencies with the applicant's claims, and his frequent change of story, the commander stated it was his duty to inform those that review the applicant's case that the unit could not stand by the applicant's claim.

4.  The USAPDA subsequently returned the applicant's case to the PEB on       18 March 2009 and presumably his retirement orders were revoked.  

5.  On 17 April 2009, the Army Physical Evaluation Board, Tacoma, WA advised Tripler Army Medical Center that the applicant's case was suspended pending further investigation into the applicant's claims as to how he received his injury.  If his injuries had been incurred in combat, a line of duty investigation would not have been required.  If his injuries had been incurred as a result of a civilian vehicle accident in Hawaii, a line of duty investigation would have been required before any final PEB action could have been taken.

6.  There is no evidence that a line of duty investigation was completed.  However, it appears the applicant may have been partly responsible for that.  He contended he was in a serious vehicle accident (when the truck he was in flipped over about 6 times and he was unconscious at the time, later receiving medication), yet it also appears that he never let his command know he had been in a serious accident.  

7.  The applicant was subsequently issued a DD Form 214 honorably releasing him from active duty on 22 July 2009 by reason of completion of required active service.

8.  His contentions have been considered; however, they do not demonstrate error or injustice in the decision not to place him on the TDRL and to release him from active duty.  It appears the original PEB decision was reversed based on the discovery of new evidence (i.e., the cause of his injuries was questionable, and whether they were incurred in the line of duty).  Without evidence to the contrary, it is presumed the applicant was notified of the change in his placement on the TDRL.  In this case, his disposition was reversed and he was released from active duty vice placed on the TDRL after reconsideration of his case.  

9.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100020007



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ABCMR Record of Proceedings (cont)                                         AR20100020007



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