IN THE CASE OF:
BOARD DATE: 2 June 2011
DOCKET NUMBER: AR20100023253
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 that his discharge from the Colorado Army National Guard (COARNG) be voided and that he instead be retired by reason of permanent disability.
2. The applicant states that he was unaware that he could have been medically retired or that he could have received treatment prior to being released from active duty (REFRAD) or discharged. He goes on to state that he was discharged from the COARNG after being found to be medically unfit for retention while on medical hold. He also states that he was suffering from a combat-related injury that affected his judgment at the time. He further states that he was also unaware that he had suffered a traumatic brain injury (TBI) from his injury in Iraq and he was later diagnosed by the Department of Veterans Affairs (VA) as having a cognitive disability. He further states that had he known he had a brain injury he would have fought hard to stay in and receive treatment or be retired.
3. The applicant provides:
* A copy of his VA Rating Decision
* A copy of his Line of Duty determination
* Copies of his separation documents
* Copies of medical records
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 7 September 2005, while serving in the rank of sergeant (SGT) in the COARNG as a heavy equipment operator, the applicant was ordered to active duty in support of Operation Iraqi Freedom. He was deployed to Iraq on
5 November 2005 and on 4 May 2006 he was involved in a mortar attack that occurred while he was operating a grader. He was awarded the Combat Action Badge (CAB) for that event.
3. Copies of medical records provided by the applicant indicate that on 25 January 2006 the applicant was treated for lower back pain 3 weeks after his vehicle hit an improvised explosive device (IED)
4. On or about 3 August 2006 he drove a tractor trailer into a 4-foot crater in the road at night and suffered a concussion and back trauma. He was treated and returned to duty.
5. He departed Iraq on 25 October 2006 and he was transferred to Fort Carson, CO where he remained until he was honorably REFRAD on 13 December 2006 and he was transferred back to his COARNG unit.
6. On 31 July 2007 the VA granted the applicant a combined 30 percent (%) disability rating percentage for:
* post-traumatic stress disorder (PTSD) (10%)
* lumbar spine degenerative joint disease (claimed as low back pain) (10%)
* tinnitus (10%)
7. On 17 August 2007 the applicant dispatched a memorandum to the Deputy State Surgeon of the Colorado Medical Command declining a Medical Review Board. He indicated that he was receiving 30% disability compensation from the VA and he understood that it would be hard to continue to serve in the COARNG and he desired to be discharged instead of being medically boarded.
8. On 28 August 2007 the COARNG State Surgeon's office dispatched a memorandum to the applicants commander directing that the applicant be discharged effective 30 September 2007 for being medically unfit for retention.
9. Accordingly, he was honorably discharged on 30 September 2007 under the provisions of National Guard Regulation 600-200, paragraph 8-35(3), due to being medically unfit for retention under the provisions of Army Regulation
40-501 (Standards of Medical Fitness).
10. On 1 December 2008 he was awarded an 80% combined disability rating from the VA for:
* Cognitive Disorder, status Post TBI - 40%
* PTSD with depressive disorder - 30%
* Lumbar Spine Degenerative Joint Disease - 20%
* Right Knee Degenerative Joint Disease - 10%
* Left Knee Degenerative Joint Disease - 10%
11. In the processing of this case, on 13 April 2011, a staff advisory opinion was obtained from the National Guard Bureau (NGB). The advisory official stated that the applicant declined review by a medical board and requested to be discharged after receiving disability compensation from the VA. He also had not shown that his discharge was in any way in error or unjust and he had failed to show that he was improperly advised or counseled by his chain of command. Officials at the NGB recommended that his request be disapproved.
12. The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He responded to the effect that had he known he had a brain injury he would have fought to stay in or be retired to receive treatment.
13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides 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 member may reasonably be expected to perform because of his or her office, rank, grade or rating.
14. Title 38, U.S. Code, sections 310 and 331, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he should have been medically retired instead of being discharged has been noted and found to lack merit.
2. The applicant was undergoing medical processing when he elected to decline medical review board processing and requested immediate discharge. While he was within his rights to decline medical board processing, that does not constitute an error or injustice on the part of the Army.
3. Accordingly, he has not shown that he was not afforded all of his rights or that he was improperly counseled at the time. The fact that he has decided 4 years later that he may have made an incorrect decision is not sufficient to void a properly issued discharge that was made at his request.
4. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant failed to submit evidence that would satisfy this requirement.
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) AR20100023253
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100023253
5
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140018403
The applicant requests an increase in the disability rating she received by the Physical Evaluation Board (PEB) for a back injury incurred while she was on active duty and that she receive a rating for Traumatic Brain Injury (TBI). The board acknowledged that she has cognitive impairment consistent with TBI, but the condition was not found unfitting by the original PEB and because TBI does not arise out of either condition found unfitting (PTSD and cervical spine disease), the board could...
ARMY | BCMR | CY2014 | 20140009613
He acknowledged: * he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on his physical profile * the physical profile included all his conditions and whether or not they meet retention standards; the conditions that did not meet retention standards were properly listed * he provided all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical...
AF | PDBR | CY2009 | PD2009-00543
The IPEB considered the case, and found him unfit for continued military service due to Chronic Achilles Tendinosis. As noted above, the CI underwent MEB/PEB, and the Right Achilles Tendinosis (coded 5284) was rated at 10% disability. Based on that evaluation, the VA assigned a rating of 10% for Traumatic Brain Injury with Headaches (coded 8045-8100), 10% for Cognitive Disorder with Sleep Disorder (coded 8045-9304), and 10% for Tinnitus (coded 6260).
ARMY | BCMR | CY2012 | 20120009642
The applicant requests, in effect, that a brain injury/mental health condition be added to his unfitting condition and his disability rating be increased to at least 30 percent (a medical retirement). His condition should have been rated as an unfitting condition. His disability was diagnosed as 100 percent disabling by the VA within 1 year of separation from the service.
AF | PDBR | CY2009 | PD2009-00420
The CI, found unfit only for the PTSD condition, was determined unfit for continued military service and separated at 10% disability using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Navy and Department of Defense regulations. The CI completed his deployment and on return to the States had increasing symptoms of TBI including headaches, cognitive defects and a diagnosis of PTSD. Regarding TBI as a possible new unfitting condition: As noted in the...
AF | PDBR | CY2011 | PD2011-00769
The PEB adjudicated the arthritis, degenerative, both knees condition as unfitting, rated 10% for each knee for a combined rating of 20%, with application of the Veterans Administration Schedule for Rating Disabilities (VASRD). The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.
ARMY | BCMR | CY2012 | 20120007820
A review of the evidence provided by the applicant and the evidence contained in his Army Military Human Resource Record (AMHRR) fails to show that the applicant had losses of ADLs, which are dressing, bathing, toileting, eating, continence, and transferring for 30 or more days within 730 days of the traumatic event of 30 March 2006. The TSGLI program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. Additionally, there is no...
ARMY | BCMR | CY2014 | 20140019008
The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. The VA is not required to find unfitness for duty.
AF | PDBR | CY2011 | PD2011-00348
Nevertheless, given the CI’s history of starting college prior to separation, employment after separation, and normal performance on tests of “intellectual abilities, memory, executive control, language, and visual-spatial functioning,” the Board agreed that the CI’s level of functioning at separation best fit the VASRD §4.130 10% criteria, “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only...
ARMY | BCMR | CY2012 | 20120014768
On 19 March 2012, a TDRL PEB convened and found his condition continued since being placed on the TDRL. The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving. CRSC determinations require evidence of a direct, causal relationship to the military retirees VA rated disabilities to war or the simulation of war.