IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100022797 


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 correction of the date of onset of his physical disability to show it occurred during his 2004-2005 deployment in support of Operation Iraqi Freedom (OIF) and that it was a combat-related injury.

2.  The applicant states the DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) and the DA Form 199 (Physical Evaluation Board (PEB) Proceedings) erroneously show that his physical and mental conditions were not the result of an instrumentality of war or as combat-related injuries.  He had submitted the correct information to the MEB prior to the completion of the PEB; however, the PEB failed to properly correct the record.

3.  The applicant provides 18 pages from his Official Military Personnel File, including:

* a DA Form 3947, dated 21 October 2009
* an MEB appeal, dated 24 May 2010
* a DA Form 199, dated 14 June 2010
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 November 2005
* two Line of Duty decisions
* 8 pages of Department of Veterans Affairs (DVA) Progress Notes
* two DVA Disability Decisions

CONSIDERATION OF EVIDENCE:

1.  The applicant, an Army National Guard (ARNG) staff sergeant with 23 years, 8 months, and 13 days of prior active and inactive service, was mobilized in support of OIF on 7 June 2004.

2.  He served in Iraq from 9 November 2004 through 12 October 2005 and he was released from active duty and returned to his ARNG unit on 24 November 2005.

3.  The applicant has not provided and the record does not contain any medical documentation except his initial care by the DVA from December 2005 through February 2006 and the information obtained from the DVA decisional documents, MEB, and PEB.

4.  On 27 May 2009, the DVA awarded the applicant a 20 percent (%) disability rating percentage for left brachioplexpathy, continued a 50% rating for major depressive disorder/post traumatic stress disorder (PTSD), and reduced a left shoulder rotator cuff injury with tendonitis from a 20% rating to a 10% rating.  The date and findings of an earlier DVA evaluation (if any) is not of record.

5.  On 19 January 2010, a DVA disability rating decisional document indicates that it was for an original disability claim.  The findings show the DVA found the applicant to be service-connected at a 10% rating for hypertension, 10% for irritable bowel syndrome, and 0% for erectile dysfunction.  He received an increase to 70% rating for his major depressive disorder/PTSD (initially rated at 30% effective 25 November 2005, with increase to 50% effective 7 May 2009, and 70% effective 2 July 2009), a 30% rating for left acromiclavicular separation (formerly rated as left shoulder rotator cuff injury with tendonitis), and a continuation of a 20% rating for left brachioplexpathy.

6.  On 27 January 2010, the National Guard Bureau (NGB), Arlington, VA approved a line of duty determination for major depression.  It was determined that the applicant's major depressive disorder was incurred during OIF.  The NGB approved a finding of "In Line of Duty - EPTS (existed prior to service) - Service Aggravation."

7.  His DA Form 3947, dated 21 October 2009, lists eight conditions found during his examination.  In the narrative portion his major depressive disorder was shown to be medically unacceptable with a date origin of 2006, it was not in the line of duty, it had existed prior to service, and it was not permanently aggravated 

by service.  In the next section it states that this condition did not exist prior to service and it was not aggravated by service.  The other seven conditions -- PTSD, left acromioclaviculaf joint pain, left brachioplexpathy, hypertension, irritable bowel syndrome, diverticulosis, and erectile dysfunction were found to be medically acceptable.  It was recommended his case be referred to a PEB.  This form has a date on the first page of 21 October 2009, but was signed by the Chief, MEB Clinic on 21 May 2010 and by the applicant on 24 May 2010.  The applicant non-concurred with the MEB's findings and recommendation.

8.  On 24 May 2010, the applicant submitted an appeal of the MEB's findings, stating he had not been properly evaluated for his PTSD, left acromioclaviculaf joint pain, or his brachioplexpathy.  These conditions prevent him from carrying out the duties of his rank and position rendering him unfit for continuation on active service.  Additionally, he stated the date of onset of his conditions was in 2005, not 2006, and he had been receiving medical care from the DVA since December 2005.

9.  An informal PEB, dated 14 June 2010, found the applicant physically unfit for major depressive disorder and PTSD with a combined rating of 70% and placement on the Temporary Disability Retired List (TDRL) with reexamination during December 2011.  It was also stated the other seven medical conditions met medical retention standards, are not listed on the physical profile as limiting any of his functional activities, are not commented upon by the commander as hindering the his performance, or render the Soldier unfit for his assigned duties.

10.  The PEB further stated that the applicant's retirement is not based on disability from injury received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.  His disability did not result from a combat-related injury.

11.  On 17 June 2010, having consulted with legal counsel, the applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing.

12.  Orders D 175-11, issued by the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, dated 24 June 2010, released the applicant from duty due to physical disability with a 70% disability rating and placed him on the TDRL.  His separation orders state that the disabilities were not received as a direct result of armed conflict, caused by an instrumentality of war, and were not the result of a combat-related injury.

13.  On 28 July 2010, the applicant was honorably separated from the ARNG in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-36t, due to placement on the TDRL.  He had
28 years, 9 month, and 23 days of total service for retired pay.

14.  During the processing of this case, on 17 February 2011, an advisory opinion was obtained from the USAPDA.  It states that while the applicant's major depression, the only condition found unfitting, began or was aggravated while in a deployed status, it does not automatically show it was the result of combat; it was not a direct result of armed conflict; it was not caused by an instrumentality of war; or as the direct result of combat training.  It was recommended that the applicant's request be denied.

15.  On 23 February 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 2 March 2011, the applicant requested a 90-day extension to prepare his appeal.  With the additional 90 days, no additional evidence or documentation was received from the applicant.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), provides at:

	a.  paragraph 3-1, 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating; and

	b.  paragraph 3-2b(1), [military] disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability was incurred or aggravated in service. 

17.  Department of Defense Instruction Number 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for service members with service-incurred or service aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because of condition unrelated to military status and duty.  It provides at:

	a.  paragraph E2.1.2.5, any impairment due to disease or injury, regardless of degree, that reduces or prevents an individual's actual or presumed ability to engage in gainful employment or normal activity.  The term "physical disability" includes mental disease, but not such inherent defects as behavioral disorders, adjustment disorders, personality disorders, and primary mental deficiencies.  A medical impairment or physical defect standing alone does not constitute a physical disability.  To constitute a physical disability, the medical impairment or physical defect must be of such a nature and degree of severity as to interfere with the member’s ability to adequately perform his or her duties;

	b.  paragraph E3.P5.1, states a physical disability evaluation shall include a recommendation or final decision and supporting documentation on whether the injury or disease that makes the member unfit or that contributes to unfitness was incurred in combat with an enemy; was the result of armed conflict or was caused by an instrumentality of war during a period of war;

	c.  paragraph E3.P5.1.1, defines incurred in combat as a physical disability from a disease or injury incurred in the line of duty in combat with an enemy of the United States;

	d.  paragraph E3.P5.1.2, states the fact that a member may have incurred a disability during a period of war or in an area of armed conflict, or while participating in combat operations is not sufficient to support a finding of incurred as a result of armed conflict.  There must be a definite causal relationship between the armed conflict and the resulting unfitting disability; and 

	e.  paragraph E3.P5.1.2.1, armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot, or any other action in which service member is engaged with a hostile or belligerent nation, faction, force, or terrorists.

18.  Title 38, U.S. Code, sections 310 and 331, permit 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the MEB and the PEB erroneously show that his physical and mental conditions were not the result of an instrumentality of war or as combat-related injuries.  He had submitted the correct information to the MEB prior to the completion of the PEB; however, the PEB failed to properly correct the record.

2.  The only condition that the MEB and the PEB found to be unfitting was the applicant's major depression.  This condition was found to have been incurred in the line of duty while in an area of armed conflict or aggravated by such service.  However, it is not shown to have been incurred in combat, as a direct result of armed conflict, or as a result of an instrumentality of war.

3.  The DVA grant of service-connection for all of the conditions listed on the MEB and/or PEB does not demonstrate that these conditions were unfitting for military service and do not show that they were incurred as a direct result of combat, were combat-related injuries, or the result of an instrumentality of war.

4.  The applicant has not provided and the record does not show any error in the processing of the applicant's MEB, PEB, or separation processing.  The only condition that rendered the applicant unfit for continuation in the ARNG was his major depression.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100022797



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ABCMR Record of Proceedings (cont)                                         AR20100022797



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