IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20100025841 


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 retirement due to physical disability.

2.  The applicant states:

* he was on restricted duty and could not perform as an infantryman
* the doctor ordered him to work 4 or 5 hours, only in the morning, with no formations and no physical training 
* he was tasked to help with the paperwork but he was unable to do it
* all he did was sit at a desk and direct people to the rear detachment commander
* his wife had to drive him to and from work because he got lost
* he had constant migraine headaches
* he needed sunglasses to reduce his blurry vision but he was not allowed to wear sunglasses while in uniform
* he could not move around because he could not feel his left leg or foot then his entire left side would go numb
* his speech was slurred and he often could not think of the words he needed to use
* his left leg would become numb when he sat, then he could stand only with assistance but he had to pick up his left foot with his hands and place it where he wanted it
* he was moody and would snap at people, then he would not understand why he had become upset
* when he got moody they had him call his wife to take him home
3.  Applicant defers the submission of supporting documents to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's record to show he was retired due to a physical disability as a result of a traumatic brain injury (TBI) rated 
30 percent disabling or higher.

2.  Counsel states the applicant was separated from active duty due to a head injury when he should have been medically retired due to TBI and other injuries.  Counsel states:

   a.  On 6 June 2003, at the Department of Veterans Affairs (VA), Dr. Ronald G. W____ examined the applicant and reported that he was easily over-stimulated leading to confusion, visual disturbance, difficulty expressing himself, and disequilibrium.  The doctor noted "He remains symptomatic and not likely to get back to duty anytime soon."

   b.  The applicant was given 3 months of convalescent leave between psycho-neurologic tests.  The applicant was admitted to a VA Brain Injury Center in Richmond, Virginia where he underwent multiple exams that documented numerous symptoms.  He was predicted to have attention and reasoning difficulties and slowed cognitive processing for another 6 months.  Upon discharge from the hospital Dr. W____ offered a diagnosis of TBI.

   c.  The applicant returned to his unit at Fort Campbell, Kentucky where he was evaluated and treated.  Following his evaluations in August and November 2003 the chief of neurology recommended that the applicant not be redeployed due to cognitive difficulties.  He recommended that the applicant go to the VA for follow-up treatment.  The applicant was scheduled to begin 60 days of transition leave on 29 April 2004 and it appears the more convenient option was to refer him to the VA instead of sending him to a medical evaluation board (MEB).

   d.  The applicant should have been referred to an MEB/physical evaluation board (PEB) for processing because his continued fitness for duty was questionable.

   e.  The chief neurologist's recommendation that the applicant not be redeployed is proof the applicant was unfit for retention on active duty.  The recommendation for follow-up treatment at the VA was improper because the applicant was entitled to referral to an MEB.  In accordance with Army regulations he should have been referred to an MEB because his "medical-fitness for return to duty was questionable, problematic or controversial."
   f.  On 29 April 2004, a medical evaluation demonstrates the Army's medical staff failed to address whether the applicant met medical retention standards.  He quoted Major R____, the Chief of Neurology at Blanchfield Army Community Hospital, Fort Campbell as stating the applicant "continues to experience significant cognitive difficulties which will likely impair his social, occupational, and academic function after leaving the military."  He also noted that Dr. R____ consulted with Ms. H____ at the PEB Office to inquire about whether the applicant should be sent there or to the VA and implies the applicant should have been sent to a medical board. 

3.  Counsel provides copies of military records, medical documents, VA records and a "memorandum of law" in support of the application. 

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 30 June 2000.  He completed training as an infantryman and progressed normally.

3.  On 13 April 2003, he was injured while serving in Iraq when a ladder collapsed and he struck his head.  The applicant fell approximately two stories and landed on concrete.  His Kevlar helmet cracked from the blow.  He was unconscious between 5 to 15 minutes.  He was medically evacuated the following morning and returned to his unit after 3 or 4 weeks.  He was evacuated to Germany on 18 May 2003 and on to the U.S. on 30 May 2003.

4.  Between 16 and 27 June 2003, at Blanchfield Army Community Hospital, the applicant was diagnosed with TBI.  He was apparently given 3 months of convalescent leave during which time he received treatment from the VA.  

5.  In November 2003, he returned to Blanchfield Army Community Hospital and he reported that he continued to experience headaches, vertigo, ankle pain, and over-sleeping (up to 16 hours a day).  He also reported he experienced a loss of consciousness on 3 July 2003, two episodes of loss of bowel control, and one episode of lip-biting.  He experienced periods of confusion lasting 15 to
20 minutes but he had experienced none since 3 August 2003.  He had returned to duty and was working in the S-1 (Personnel).  He reported that he "sits most of the day directing the privates."

6.  Dr R____'s recorded impressions were:

   a.  Closed head injury by history, with a brief loss of consciousness and peri-event amnesia, mild to moderate severity overall.
   
   b.  Post-conconcussive disorder, manifested by headaches, memory difficulties, and imbalance.
   
   c.  Cognitive disorder by neuropsychiatric testing with defects in multiple spheres, likely secondary to #1; questioning neuropsychiatry results of additional factors.

   d.  Confessional episodes, with tremor, differential diagnosis includes epileptical etiology, although events not stereotypical, not typical of seizure symptology, and negative prior electroencephalogram (EEG), repeat pending.

   e.  Hypersomnolence secondary to #1. 

7.  Dr. R____ determined the applicant's 12 November 2003 EEG was normal.

8.  In April 2004, the applicant was again evaluated at Blanchfield Army Community Hospital. Major/Dr. R____'s Recommendation/Plan states:

   a.  he had a discussion with Ms. H____ at the PEB Office concerning VA follow-up versus an MEB with patient's expiration term of service tomorrow and the recommendation was a VA follow-up.

   b.  The Soldier continues to experience significant cognitive difficulties which will likely impair his social, occupational, and academic functions after leaving the military.  He requires neurologic follow-up, referral to behavioral health as above and ongoing assessment for contributions to his cognitive condition, with neuropsychiatric results in excess of the findings for his injury, as per neuropsychiatric results above.


9.  On 29 June 2004, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve, due to completion of required service.

10.  On 30 June 2004, the VA rated the applicant 10 percent disabled due to TBI.  

11.  The disability rating for TBI was increased from 10 percent to 70 percent effective 23 October 2008.  His PTSD was granted at 30 percent (effective        25 March 2008 and he was also diagnosed with lumbago (low back pain), left hip and right hip bursitis, and left wrist strain that were each rated 10 percent disabling.

12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

13.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

14.  Title 10, U.S. Code, section 1212(c) states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA.  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

15.  Title 38, U.S. Code, section 5304 states that, except to the extent that retirement pay is waived under other provisions of law, not more than one award of pension, compensation, regular, or reserve retirement pay shall be made concurrently to any person based on such person's own service.

16.  The Fiscal Year 2004 National Defense Authorization Act provided for phased-in restoration of the retired pay deducted from the accounts of military retirees because of their receipt of VA compensation.  Concurrent Retirement and Disability Payments applies to all retirees with VA-rated, service-connected disability of 50 percent or higher but does not apply to disability retirees with less than 20 years of service.  

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant might have been eligible for MEB/PEB processing.  He was an infantryman, and it appears he could not perform his infantryman duties.

2.  However, subsequent events (i.e., the VA Rating Decisions) indicate that the failure to process the applicant through the MEB/PEB process was a harmless error.

3.  It was the sequelae of the applicant's TBI that rendered him unable to perform his infantryman duties.  There is no evidence to show that any other medical conditions rendered him unable to perform his duties.  The VA initially awarded him a 10 percent disability rating for his TBI.  Such a rating would only have warranted discharging him with severance pay, not a medical retirement.  That severance pay would have had to be repaid before he could have started receiving his VA disability compensation.  In addition, since he separated with less than 20 years service, any medical retired pay he might have received from the Army would have had to be waived before he could have started receiving VA disability compensation.

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.  

5.  Regrettably, 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)                                         AR20100025841



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ABCMR Record of Proceedings (cont)                                         AR20100025841



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