BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100020556 


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, in effect, correction of his records to show he was referred for duty-related active duty medical retention processing and processed through the Army Physical Disability Evaluation System (PDES) resulting in receipt of a medical retirement.  He also requests a waiver for recoupment of a Selected Reserve Incentive Program (SRIP) bonus.

2.  The applicant states when the State Medical Review Board (SMRB) stated that he failed to meet the medical retention standards for continued service in the Tennessee Army National Guard (ARNG) the Deputy State Surgeon's office requested a referral to a non-duty related Physical Evaluation Board (PEB) for a determination of fitness.  He adds that he should have been referred for a duty related active duty medical review board (MRB) because the issues of bilateral right knee pain and post-traumatic stress disorder (PTSD) for which he was boarded were duty related.  He states he was not allowed to deploy with his unit and was not properly taken through the SMRB.  He continues by stating he has a line of duty (LOD) determination for the bilateral knee pain.  He also states he has Department of Veterans Affairs (VA) service connection for both knees and for PTSD.  He further states he believes the records to be unjust because:

   a.  his medical records indicate he has three LOD's, one of which he was released for;

   b.  he was seeing doctors and being treated for PTSD since returning from Iraq and VA records show him service connected for both PTSD and his knees;
   c.  the dates on the orders show he was rushed out after it had been brought to the attention of the Tennessee ARNG that nothing was being done with him; and
   
   d.  he should have been returned to active duty for an active duty MRB, resulting in his order reflecting Temporary Disability Retired List or Permanent Disability Retired List so that he would be able to get all of his just benefits.

3.  He further states that he should not be required to pay back any bonus or other entitlement incentives based on the fact that he was being put out of the military due to service-connected injury.

4.  The applicant provides:

* six DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Joint Force Headquarters, Tennessee National Guard memorandum for the applicant, subject:  SMRB Fitness for Duty Evaluation Findings
* Joint Force Headquarters, Tennessee National Guard memorandum for Commander, 1-230th ACS, subject:  State Fitness for Duty Evaluation (FFDE) Findings
* Approximately 586 pages of medical, retirement, physical fitness documentation

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the ARNG on 25 March 1994.   A physical examination, dated 19 March 1999, contains remarks indicating he had an anterior cruciate ligament (ACL) tear on his right knee repaired in a civilian hospital in 1996.

2.  He was appointed as a commissioned officer in the ARNG on 25 June 2000.  

3.  He had an approved LOD for an injury to his lip and tooth in 2000 and for a broken right hand in June 2002.

4.  On 25 August 2004, he entered active duty from the ARNG in support of Operation Iraqi Freedom as a signal officer.  The DD Form 214 he was issued for this period of service shows he was released from active duty on 20 February 2006.
 
5.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 February 2006, shows his bilateral knee pain strain was determined to have occurred in the line of duty.  The form indicates he injured his knee in July 2005 playing volleyball while he was mobilized.

6.  He was discharged on 8 June 2007 with the highest rank held of first lieutenant.  On 29 June 2007, he enlisted in the Tennessee ARNG for a period of 6 years in pay grade E-5.  He was later promoted to pay grade E-6.

7.  In conjunction with his June 2007 enlistment agreement a National Guard Bureau (NGB) Form 600-7-6-R-E (Annex X to DD Form 4 Prior Service Enlistment Bonus Addendum ARNG of the U.S.) shows he was to receive a prior service enlistment bonus in the amount of $15,000 for a 6-year term of service.  The bonus agreement indicated he would be terminated from bonus eligibility with recoupment if he separated from the ARNG for any reason unless due to death, injury, illness, or other impairment not the result of own misconduct.

8.  A VA Radiology Report, dated 29 July 2007, indicated an impression of osteoarthritis caused by a prior surgical ACL repair of his right knee.  This was considered a minor abnormality.

9.  A DD Form 2808 (Report of Medical Examination), dated 20 February 2008, lists in item 77 (Summary of Defects and Diagnoses) chronic knee pain, hypertension (under treatment), depression (under treatment), and overweight. 

10.  Joint Force Headquarters Tennessee National Guard memorandum for Commander, Headquarters, 1-230th ACS, subject:  FFDE for the applicant, dated 5 March 2008, indicates it had been determined that the applicant's medical condition required an FFDE for hypertension, chronic knee pain, and depression.  The memorandum indicated the purpose of an FFDE was to evaluate a service member's level of functioning to determine his appropriateness for the work environment and deployment purposes.

11.  This memorandum stated that the applicant needed to request and submit documentation from his treating physician to include diagnosis, prognosis, medications, any surgeries, restrictions, and limitations.  The information was to be current within the previous 6 months.  If the applicant failed to submit the documentation within the unit's suspense date, the unit should administratively discharge him.
   
12.  A VA Progress Note printout (page 13) contains a notation that the applicant characterized his experience while serving as a signal officer in Iraq as a modest to mild degree of combat exposure.  He had been in close proximity to rocket attacks on a few occasions and a friend of his in his company died.  Page 16, signed on 10 March 2008, of this printout indicates he was diagnosed with PTSD and Alcohol Dependence by a clinical psychologist.  Other medical documents also show he had a history of ethanolism (also known as alcoholism). 

13.  Joint Force Headquarters, Tennessee National Guard memorandum, subject:  State FFDE Findings, with a board date of 1 November 2008, indicates the FFDE's findings and recommendations were that the medical conditions for which he was boarded warranted a permanent L2 (lower extremity physical profile designator of "2" which means an individual possesses some medical condition or physical defect that may require some activity limitations).  He was given a 6-month trial of duty but could not be deployed due to PTSD.

14.  A DA Form 3349 (Physical Profile), dated 2 November 2008, shows a medical condition of right knee pain and depression.  This form shows he was given a 6-month trial of duty to assess therapy effectiveness for his depression in addition to a permanent lower extremity L2 profile.

15.  Joint Force Headquarters, Tennessee National Guard memorandum, subject:  State FFDE Findings, with a board date of 8 November 2009, indicated no new documentation was received regarding the applicant's ethanolism (ETOH) and PTSD symptoms.  It further indicated the suspense for information requested in March 2008 had passed.

16.  Joint Force Headquarters, Tennessee National Guard memorandum for the applicant, subject:  SMRB FFDE Findings, dated 10 November 2009, indicated it was determined that he failed to meet the medical retention standards for continued service in the Tennessee ARNG.  The basis for this SMRB finding was Army Regulation 40-501, Chapter 3-32 (mood disorder).  The memorandum indicated if he wished to appeal the decision, he had 30 days from receipt of the letter to submit to the Deputy State Surgeon's office a written request for referral to a non-duty related PEB for a determination of fitness.
 
17.  A DA Form 3349, dated 22 November 2009, shows a medical condition of right knee pain and depression.

18.  His last NGB Form 22 (NGB Report of Separation and Record of Service) shows he was discharged from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve) on 1 January 2010 due to failure to meet retention standards.



19.  In the processing of this case an advisory opinion was obtained from the NGB, Personnel Division.

   a.  The NGB recommended that the applicant's records be sent before a Mandatory Medical Review Board (MMRB); medical evaluation board (MEB) for disability evaluation processing; and then be referred to the PEB to be evaluated for PTSD and determine his fitness for duty.
   
   b.  The NGB further recommended that once a medical determination was made, a review of his discharge characterization should be addressed.
   
   c.  It was also recommended the recoupment of the bonus be terminated because the State had admitted to error in requesting the bonus be recouped.
   
20.  The NGB indicated that medical evidence supports approving his request.  The NGB added that he was involuntarily separated for a mood disorder (depression) that appears to have been aggravated by military service.  The NGB indicated that although it was not listed specifically on the separation memorandum, other medical administrative documents, as well as VA medical treatment records indicate he incurred PTSD in the line of duty.

21.  The NGB indicated that the PTSD is more than likely a result of his multiple deployments on active duty for greater than 30 days.

22.  The NGB stated that in accordance with ARNG SRIP Guidance for Fiscal Year 2007, 16 June 2007 - 31 March 2008, Policy Number 07-05 section (6a) "A Soldier's eligibility for incentives will terminate without recoupment in the event of death, injury, illness, or other impairment not the result of the member's own misconduct."  The NGB added that he was discharged for medical reasons and should not be required to repay the bonus.  The NGB further recommended the Defense Finance and Accounting Service (DFAS) audit his pay history to reimburse monies recouped to date.

23.  The NGB indicated the State concurs with the recommendation to relieve him of bonus repayment.  However, the State had concluded that he was given adequate counseling during his fitness for duty evaluations.  The NGB indicated the recommendation of the Surgeon General's office differed as it was their professional opinion that the applicant's non-compliance may be attributed to the effects of PTSD.



24.  In coordination for purposes of the NGB advisory opinion, the State indicated in an email, dated 16 February 2011, that the applicant chose not to provide any additional medical evidence after his 180-day trial of duty which resulted in his eventual discharge and retirement.

25.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his response, he indicated he had no other comments.

26.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES System according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It 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.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  It states that although the ability of a Soldier to reasonably perform his or her duties in all geographical locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness.

27.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

28.  Title 10, U.S. 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.

29.  Army Regulation 40–501 (Medical Services Standards of Medical Fitness, paragraph 10–25, states that for Soldiers pending separation for failing to meet medical retention standards, the State Surgeon is responsible for completing the following: Physical Profile, a Fitness for Duty examination, and obtaining the 


appropriate civilian consults from the Soldier (non-Duty related cases are the Soldier’s responsibility and he/she must provide the appropriate medical consults from his/her civilian physician).

DISCUSSION AND CONCLUSIONS:

1.  At issue in this case is whether the applicant should have been referred to an MEB and PEB to determine whether he should have been separated due to physical unfitness with either retired pay or severance pay.

2.  In this case the State Surgeon convened an SMRB which determined that the applicant should be given a 6-month trial of duty to assess the effectiveness of therapy for his depression.  Hypertension and chronic knee pain were not found to be medically unfitting.  While the SMRB mentions that the applicant had PTSD, that condition was not listed as an unfitting diagnosis.  Many Soldiers have PTSD and continue to serve satisfactory, and world-wide deployability will not serve as the sole basis for a finding of unfitness.

3.  There is no evidence to show the applicant's depression was a service connected condition.  Therefore, there was no requirement to refer him to the Disability Evaluation System (DES) for this condition.

4.  When the applicant failed to provide any additional information during or immediately following his 6-month trial of duty, he was administratively separated from the ARNG for failure to meet retention standards.  This appears proper and just.

5.  While he contends he had three medical issues that were approved as being in the LOD, none of those medical issues were determined to be medically unfitting.

6.  The NGB advisory opinion indicated he was involuntarily separated for a mood disorder (depression) that appears to have been aggravated by military service; and that although it was not listed specifically on the separation memorandum, other medical administrative documents as well as VA medical treatment records indicate he incurred PTSD in the line of duty.  

7.  The NGB's advisory opinion has been carefully considered.  However, since there is no evidence to show the applicant's PTSD was medically unfitting or his depression aggravated by military service, the NGB's recommendation to 


convene an MEB is not considered to be consistent with the evidence of record and governing laws and regulations.

8.  The applicant completed a prior-service enlistment agreement in which he agreed to serve 6 years in return for a bonus of $15,000.  The bonus agreement stated that if he was separated from the ARNG for any reason unless due to death, injury, illness, or other impairment not the result of own misconduct his bonus would be terminated with recoupment.  He was separated due to a mood disorder.  As such, in the interest of equity and justice, it would be appropriate for any recoupment actions of bonus payments to cease and any recoupment already made to be reimbursed to the applicant.

9.  In view of the foregoing, it would be appropriate for the applicant to have his records corrected as shown below. 

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 any recoupment of the individual's prior service enlistment bonus cease and any monies recouped be reimbursed to the individual.

2.  The Board further recommends that based on the above correction the DFAS should audit the applicant's pay account in relation to his prior service enlistment 
bonus and any monies recouped and pay him accordingly based on this correction.

3.  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 correction of his records to 


show he was referred for duty related active duty medical retention processing and processed through the PDES resulting in receipt of a medical retirement.




      _______ _   _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)                                         AR20100020556



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ABCMR Record of Proceedings (cont)                                         AR20100020556



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