IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110002588 


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 to be medically retired with the corresponding benefits.

2.  He states he requested reenlistment and was told he was no longer fit for duty.  The Department of Veterans Affairs (VA) Regional Office in Portland, OR gave him a service-connected disability rating of 100% within 1 year of returning from Iraq.  He would have made a career out of the military had he not become disabled.

3.  He provides a self-authored statement, a DD Form 214 (Certificate of Release or Discharge from Active Duty), a letter from the VA informing him of his disability rating and monthly entitlement amount, a copy of his VA rating decision, and VA medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Oregon Army National Guard (ORARNG) for a period of 6 years on 30 September 2004.  On 29 September 2010, he was honorably discharged from the ORARNG and transferred to the U.S. Army Reserve Control Group (Individual Ready Reserve) to complete his military service obligation.

2.  His record includes a DD Form 214 showing he served on active duty in support of Operation Iraqi Freedom from 2 May 2009 to 11 May 2010 with service in Iraq from 6 July 2009 to 10 April 2010.  He was released from active duty under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.

3.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) in his record shows he was discharged from the ORARNG under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35a, upon reaching his expiration term of service (ETS).  Item 18 (Remarks) shows the statement "RE (Reentry eligibility) [code] 3 due to open flag for PHA (periodic health assessment) and APFT (Army Physical Fitness Test (APFT)."

4.  His record is void of documentation showing the results of a PHA and his service medical records are not available to the Board for review.  His record does show he was flagged for APFT failure and the weight control program on 4 October 2008.  The record is void of documentation showing these flags were removed prior to his ETS.

5.  He provides the following self-authored statement:

In April 2009 my unit went for training to Fort Hunter Leggett, California, while there I got a concussion from a conex.  I was taken to the medic and put on 24 hour watch for a moderate to severe head injury.

When I was deployed to Iraq I noticed that I was getting more and more irritable and could not sleep.  Then in October 2009 I was responsible for cleaning out [a Mine Resistant Ambush Protected (MRAP) vehicle] that had just been hit by an [improvised explosive device] in which two of my battle buddies were killed.  After cleaning the brain matter from the inside of the vehicle and smelling the decaying flesh I can no longer get this exposure out of my mind.

While there my behavior became erratic.  I was crying one minute and going into a fit of rage the next.  I was put on unofficial suicide watch twice and official suicide watch twice.  To avoid unnecessary paperwork I was "strongly" encouraged to volunteer for weekly therapy meetings (which I went to).

My chain of command chose not to send me home because of the need for the manpower plus they thought they could keep a closer watch on me and that I would have better support from my battle buddies rather than at home.

I feel that when I came home, I should have gone in front of a medical review board because I think I would have been found to be no longer fit for military service due to my mental conditions.  I believe I should have been given a medical retirement discharge!  I did not have any problems before my deployment, and I wanted to make the military my career, and now I can barely function in society.

6.  He provides a VA rating decision showing he has been given a 100 percent (%) combined disability rating.  The letter shows he received ratings for:

* post-traumatic stress disorder (PTSD) with depression and cognitive disorder (70%)
* sleep apnea with chronic fatigue (50%)
* post-concussive headaches from traumatic brain injury (TBI) (50%)
* asthma (30%)
* tinnitus (10%)
* left carpal tunnel syndrome (10%)
* right carpal tunnel syndrome (10%)

He also received 0% ratings for left and right plantar fasciitis, left ear hearing loss, and allergic rhinitis.  All ratings were effective 12 May 2010, the day after his release from active duty.

7.  Army Regulation 40-501 (Standards of Medical Fitness) provides the medical fitness standards for retention and separation.  

	a.  Chapter 3 lists the various medical conditions and physical defects which, if incurred or aggravated by an Army National Guard Soldier during an active duty period, may render a Soldier unfit for further military service and require referral to a Medical Evaluation Board (MEB) and further referral to a Physical Evaluation Board (PEB) for determination of fitness or unfitness.  

	b.  Paragraph 3-36 (adjustment disorders) states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.  

	c.  The regulation also provides that Army National Guard Soldiers will undergo an annual PHA.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 her or her office, grade, rank, or rating.  The regulation provides that commanders will refer a Soldier to the servicing medical treatment facility for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

9.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) states, in pertinent part, a flag will be initiated when a Soldier fails to pass the APFT and when a Soldier enters the Weight Control Program.  Flags for APFT failure block promotion, reenlistment, and extension only.  Flags for weight control block only attendance at full-time civil or military schooling, promotion, awards and decorations, assumption of command, and reenlistment or extension.

10.  National Guard Regulation 600-200 states a Soldier will be separated/discharged at ETS with RE code 3 if the Soldier is ineligible for reenlistment or extension due to overweight or APFT failure, but is not barred from reenlistment or extension at the time of ETS.  Table 6-1 (Definition of Reentry Eligibility Codes) states RE code 3 indicates an individual is not fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.

11.  Title 38, U.S. Code, sections 1110 and 1131, 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 authorized 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 evidence of record does not support the applicant's request to be medically retired.  
2.  The record does not show nor has he provided evidence showing he suffered from unfitting conditions at the time of his release from active duty on 11 May 2010 or when he was discharged from the ORARNG.  His statements regarding a concussion and the events leading to him being placed on "unofficial suicide watch twice and official suicide watch twice" while in Iraq are not confirmed by the available records.  Although he states he was told he was no longer fit for duty, the available evidence indicates the flags he received for APFT failure and his PHA may have been the basis for this statement.  

3.  It is noted the VA gave him a 100% combined disability rating shortly after he was discharged from the ORARNG.  While a rating of this magnitude given shortly after his discharge raises questions regarding his fitness to perform his assigned duties, a VA rating alone is not evidence of unfitness for military service.  

4.  He has failed to overcome the presumption of fitness.  The presumption is overcome if he can show, through a preponderance of evidence, that because of a disability, he was physically unable to perform adequately the duties of his office, grade, rank or rating prior to his discharge from the ORARNG.  In the absence of medical evidence to the contrary, administrative regularity is presumed in his separation processing.  

5.  In view of the foregoing, there is an insufficient basis for granting 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)                                         AR20110002588





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ABCMR Record of Proceedings (cont)                                         AR20110002588



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