IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100030112 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 14 January 2006 to show she was medically retired from active duty and placed on the temporary disability retired list.

2.  The applicant states:

   a.  She was demobilized in January 2006, completed a combat tour in Iraq, and was discharged from the Louisiana Army National Guard (LAARNG) in August 2009 for conditions that occurred on active duty.

   b.  She was neither referred to a medical evaluation board (MEB) nor referred to a physical evaluation board (PEB) for fitness determination.

   c.  She believes her condition of post-traumatic stress disorder (PTSD) -military sexual trauma is of a permanent nature.

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 December 2005 and a DA Form 2173, undated/unsigned
* DD Form 214, dated 14 January 2006
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 1 August 2009
* Orders 205-1175, dated 24 July 2009 (discharging the applicant from the ARNG)
* Defense legal brief related to the sexual assault allegation
* Department of Veterans Affairs (VA) rating decisions, dated 11 October 2007 and 11 December 2008
* VA evaluations, progress notes, reports, summaries, and other VA medically-related documents

CONSIDERATION OF EVIDENCE:

1.  On 23 April 2004, the applicant enlisted in the Mississippi Army National Guard (MSARNG) for a period of 8 years.  On 23 May 2004, she entered active duty for training (ADT), completed the training requirements, and was awarded military occupational specialty (MOS) 92G (Food Service Specialist).  

2.  She was released from ADT on 23 November 2004 to the control of the State. She was assigned to the 155th Separate Armored Brigade (Heavy), Tupelo, MS.

3.  On 1 December 2004, she was ordered to active duty in support of Operation Iraqi Freedom.  She subsequently served in Kuwait/Iraq from 13 January 2005 to 22 December 2005.  She was assigned to Headquarters and Headquarters Company, 1st Battalion, 155th Armor.

4.  On 22 August 2005, while in Iraq, she accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to her appointed place of duty.  

5.  Her DD Form 214 shows, on 14 January 2006, she was honorably released from active duty under the provisions of chapter 4, Army Regulation 635-200 (Personnel Separations) due to completion of required active service and transferred to the MSARNG.  She completed 1 year, 1 month, and 14 days of creditable active service.  

6.  Her service medical records are not available for review and there is no evidence in the available service records that show she sustained a disabling medical condition, was issued a permanent physical profile or that she underwent a medical evaluation with subsequent referral to an MEB. 

7.  On 1 April 2006, she requested and was authorized a transfer to the LAARNG.  Accordingly, she was assigned to the 769th Engineer Battalion, Baton Rouge, LA.  She performed multiple drills with this unit.

8.  Between 25 September and 4 October 2006, she attended the Challenge Program Instructor Course (CPIC) at the 1st Noncommissioned Officer Academy, 199th Leadership Regiment, LA.  Although she did not achieve course standards, her small group leader noted that she "was an active team member" and "knows how to use references."

9.  On 1 October 2008, the Joint Force Headquarters, LAARNG, published Orders 275-1140 reassigning her from the Rear Detachment of the 769th Engineer Battalion to the Forward Support Company (FSC), 769th Engineer Battalion.

10.  On 3 April 2009, the Joint Forces Headquarters, LAARNG, published Orders 093-1185, releasing her from the FSC, 769th Engineer Battalion, and further reassigning her to the ING (Inactive National Guard), FSC, 769th Engineer Battalion.  The orders instructed her to keep her unit advised of her current address, telephone number, and availability to attend annual training or other training.  

11.  A LAARNG J-1, memorandum, dated 7 July 2009, and sent by certified mail to the applicant's address on record, notified the applicant the State Surgeon reviewed all of the medical documents that were provided by her physician and that due to her permanent profile conditions and restrictions she did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  However, since she had been rated by the VA, there was a possibility she could be referred to the physical disability evaluation system (PDES).  She was given 30 days to exercise her rights regarding the following options:

* Elect immediate separation
* Not concur and request that her case be referred for an evaluation by a military physician for further assessment

12.  The certified mail receipt shows the above official notification was returned to sender with a stamp "Attempted - Not Known - Unable to Forward."  In effect, she waived her rights to have her case referred for further assessment. 

13.  She was honorably discharged from the ARNG on 1 August 2009 in accordance with paragraph 8-35L(8), National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) due to being medically unfit for retention.  Her NGB Form 22 shows she completed a total of 5 years, 3 months, and 9 days of total service for pay.


14.  Her NGB Form 23B (ARNG Retirement Points History Statement) shows she attained the following retirement points subsequent to release from active service in 2006:

* From			To				Membership		IDT			Total

* 20060423 - 20070422		15					37				52
* 20070423 - 20080422	 	15					00				15
* 20080423	 - 20090326		14					00				14
* 20090327 - 20090801		Inactive

15.  She provides a:

	a.  DA Form 2173, dated 13 December 2005, which shows she was hospitalized in an outpatient status in Iraq.  She was subjected to continuous operational conditions and exposure to human waste, indigenous plants and animals, composite material fires, petrochemical waste and fumes, gases, fumes and dust of unknown origin, continuous loud noises, and airborne pathogens.  She may have been exposed to infectious diseases and she was subjected to extreme exposure to sun and ambient temperatures.  The lack of personal hygiene and the wearing of her armor vest and Kevlar may have contributed to her pain.

	b.  DA Form 2173, undated/unsigned by the unit commander, alleges sexual assault on 4 October 2005.  This form was authenticated by an individual named KKO on 28 December 2005; however, the blocks related to the details, duty status, and commander's name and signature block all contain no entries.

	c.  Legal Brief, United States versus private (PV2) KML, wherein a defense counsel for PV2 KML, the applicant's alleged rapist, argues that the applicant fabricated her consensual sex with PV2 KML.  (The complete facts, circumstances, investigation, and conclusion regarding the alleged sexual assault are not available for review with this case).

	d.  VA rating decision, dated 11 October 2007, which shows she was awarded service-connected disability compensation for PTSD; major depressive disorder, recurrent, moderate, rated 50% disabling.  The rating was assigned for occupational and social impairment with reduced reliability and productivity. 

	e.  VA rating decision, dated 11 December 2008, denied her appeal and reconfirmed she has a 50% service-connected disability. 

	f.  various VA medical documents, progress reports, evaluations, assessments, and other medically-related documents, dated on miscellaneous dates in 2008 and 2009 that were written in support of her VA claim for service-connected disability compensation.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and 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 office, grade, rank, or rating.  

17.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule of Rating Disabilities.  

18.  Title 10, U.S. Code (USC), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

19.  Army Regulation 135-178 establishes the policies, standard, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components (RC).  Chapter 3 states discharge will be accomplished when it has been determined that an enlisted member is no longer qualified for retention by reason of medical unfitness unless the member requests and is granted a waiver or is eligible for transfer to the Retired Reserve.  RC members who do not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, requires reservists who are eligible for retention on active duty due to a physical disability to submit an affidavit requesting retention on active duty.  This affidavit must be submitted prior to a reservist’s release from active duty, must be endorsed by the Medical Treatment Facility Commander, and must be approved by the commander exercising general court-martial authority.

20.  NGR 600-200 prescribes the criteria, policies, processes, procedures and responsibilities to classify; assign; utilize; transfer within and between states; provides Special Duty Assignment Pay; and separate ARNG enlisted Soldiers.  Chapter 8 provides for separation of enlisted Soldiers.  Paragraph 8-35 provides for various types of separation.  Paragraph 8-35(l)8 provides for the separation of an enlisted Soldier who is found medically unfit for retention in the ARNG per Army Regulation 40-501. 
21.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of any VA rating does not establish error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her records should be corrected to show she was medically retired from active duty by reason of temporary disability.

2.  The purpose of the PDES is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system. 

3.  The available evidence shows she was ordered to active duty on 1 December 2004 and she served in Iraq from 13 January to 22 December 2005. During her service, she was subjected to various environmental conditions (exposure to human waste, indigenous plants and animals, composite material fires, petrochemical waste and fumes, gases, fumes and dust of unknown origin, continuous loud noises, and airborne pathogens) as well as an incident of alleged rape coupled with the operational tempo may have resulted in certain ailments.  However, nowhere in her service records does it show she suffered an injury, wound, or illness that rendered her physically unfit or warranted her entry into the PDES.


4.  On the contrary, subsequent to her release from active duty, she was found fully qualified for a transfer to a State ARNG unit.  She also attended a training course and performed various drills.  These are clear indicators that show she was able to perform the duties required of her MOS and grade at the time of release from active service.  

5.  There is no evidence in her records and she did not provide any evidence that shows her 2007 or 2008 VA diagnosis of PTSD was made during a service medical examination and she was determined not to have met the medical retention standards of Army Regulation 40-501.  Additionally, her official records do not contain and she did not provide sufficient medical documents to show the complete facts and circumstances - specifically the nature of her medical conditions and their origin - that led to her medical disqualification and ultimate discharge from ARNG.

6.  An award of a rating by another agency does not establish error by the Army. Operating under different laws and its own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

7.  In view of the lack of sufficient medical documents and the overall circumstances in this case, there is insufficient evidence to grant the 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)                                         AR20100030112



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ABCMR Record of Proceedings (cont)                                         AR20100030112



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