IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110000961 


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, through counsel, that he be placed on the Retired List for physical unfitness rated 90 percent disabled in lieu of the administrative medical discharge he currently holds, and that he be given back pay from the date of his current discharge.  In the alternative, he requests that he be given a medical evaluation board (MEB).

2.  The applicant states, through counsel, that he was administratively discharged from the Army National Guard (ARNG) for medically disqualifying conditions (migraine headaches, Post-Traumatic Stress Disorder [PTSD], cognitive disorder, and major depressive disorder) that were not considered to be service connected.

3.  In August 2005, while serving in Iraq, he was knocked down by a 155mm howitzer cannon.  He returned from combat with migraines, PTSD, cognitive impairment, and major depressive disorder, all symptoms of Traumatic Brain Injury (TBI).

4.  On 19 September 2006, he was given a combined Department of Veterans Affairs (VA) disability rating of 80 percent.  On 21 May 2009, his VA rating was increased to 90 percent for dementia due to head trauma.

5.  He contends he should have received a TBI screening and been medically boarded before he was released from active duty.

6.  He inserts excerpts from medical records which are not identified by name or social security number which he contends validate that he was exhibiting symptoms which should have triggered a neuropsychological examination to determine whether he had TBI.

7.  The applicant provides documents which he lists in his request.

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’s military records show that he enlisted in the ARNG on 22 April 1991.  He was awarded the military occupational specialties of cannon crewman and combat engineer, and he was also promoted to pay grade E-6.

3.  On 7 June 2004, he entered active duty in support of Operation Iraqi Freedom and he deployed to Iraq from 28 November 2004 to 8 November 2005.

4.  The only military medical treatment record provided by the applicant is a post-deployment examination, dated 13 November 2005.  This examination indicated the applicant had undergone magnetic resonance imaging (MRI) (brain without contrast), and L-spine series (3) radiologies.  The examination was requested due to the applicant having problems sleeping.  The applicant reported having problems sleeping since he witnessed an improvised explosive device explosion and saw body parts.  He also stated that he began having headaches after he was knocked over by an explosion, which worried him because in the past when he experienced headaches, he was diagnosed with a non-malignant brain tumor.  He was diagnosed with an adjustment disorder, but was said to be able to perform his duties without a mental health profile.  However, it was recommended that he be referred to neuropsychology for evaluation for a possible closed head injury and a follow-up appointment with mental health upon return home if anger and sleep problems were not resolved.

5.  On 22 November 2005, he was honorably released from active duty and returned to his ARNG unit.

6.  On 15 April 2007, the ARNG State surgeon determined the applicant was medically disqualified for migraine headaches, PTSD, cognitive disorder, and major depressive disorder.  The State surgeon added the conditions were not incurred in line of duty.

7.  On 24 May 2007, the applicant's commander notified him that he was initiating action to separate him due to medical disqualification, but he could request a non-duty related physical evaluation board (PEB).  The applicant responded by stating he did not request a PEB.

8.  Accordingly, on 30 July 2007, the applicant was honorably discharged from the ARNG due to medical unfitness and transferred to the Retired Reserve.

9.  The VA rating documents provided by the applicant show that he was awarded a 50 percent disability rating for migraine headaches and a 50 percent rating for PTSD, effective 23 November 2005.  On 4 January 2007, he was awarded individual unemployability.  On 21 May 2009, his PTSD rating was changed to a rating for dementia due to head trauma and rated 70 percent disabling.

10.  A progress note, dated 26 February 2007, indicates the applicant reported that while standing behind a 155mm howitzer in Iraq, the howitzer was fired and he was exposed to shock waves which caused him to fall down to one knee and he was almost knocked out.  After that incident he experienced nausea, irritability, and chronic headaches.

11.  In the processing of this case, the applicant's counsel was contacted and asked to provide a copy of the applicant's Army medical records that supports his contentions.  Counsel was informed that if the applicant did not have the medical records, he could get copies from the VA Regional Office.  Counsel responded, stating that the original application contained the applicant's VA ratings, applicable medical records, and his post-deployment examination.  He concludes by saying "We respectfully request that the application be opened for consideration."

12.  Title 10, U.S. Code, Chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of Soldiers who incur a permanent physical disability in the line of duty while serving on active or inactive duty.  

DISCUSSION AND CONCLUSIONS:

1.  As the applicant's counsel was advised, there is insufficient Army medical records to show the applicant should have been given an MEB or, therefore, placed on the Retired List for physical unfitness.  

2.  The applicant reported having been knocked down due to a 155mm howitzer being fired while he was standing behind the howitzer.  It is highly unlikely a Soldier standing behind a howitzer would be knocked over and injured.  This is where the artillery crew stands when a howitzer is being fired.

3.  The applicant admitted that he had a brain tumor which was presumably surgically removed before he entered an active duty status.  

4.  Without evidence to substantiate that he was knocked over by a 155mm howitzer blast and that he was treated for a closed head injury as a result of that fall, there is insufficient evidence to show he incurred a closed head injury in line of duty.  In addition, without his complete medical records there is sufficient doubt as to whether his currently diagnosed TBI was due to an operation for his brain tumor.

5.  The fact that the VA, operating under its own laws and regulations, determined the applicant's TBI to be service connected does not indicate that his administrative separation was improper.  The VA does not cite any documents which support the applicant's account of what occurred to him in Iraq, such as accident reports, line of duty investigations, or after action reports.  Therefore, it is presumed that the VA took the applicant's word concerning what happened to him.  

6.  It is also noted that the VA rated the applicant for PTSD for 3 1/2 years before it changed the diagnosis to dementia due to head trauma.

7.  In this case we have the ARNG State surgeon stating that the medically disqualifying conditions did not occur in line of duty.  The State surgeon had the applicant's complete Army medical records when he made that determination.

8.  The Board starts with a presumption of regularity, that what the Army did was right.  It is up to the applicant to overcome this presumption.  Without Army records to show the ARNG State surgeon's determination was improper, there is insufficient evidence in which to grant the applicant's request.


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)                                         AR20110000961



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ABCMR Record of Proceedings (cont)                                         AR20110000961



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