IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110004978 


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 correction of his records to show he qualifies for a medical retirement, entitlement to enroll in the Army Wounded Warrior Program (AW2), Combat Related Special Compensation (CRSC), relief from the Individual Ready Reserve (IRR) muster requirement, and award of the Purple Heart.

2.  The applicant states, in effect, he was seriously injured by an exploding mine in June 2008 and he was told he would be receiving the Purple Heart.  He was not considered for medical retirement nor did he have a separation physical examination.  He contends that 5 months after separating from the Army, he received a combined rating of 80 percent from the Department of Veterans Affairs (VA) that includes service connection for post traumatic stress disorder (PTSD) and traumatic brain injury (TBI).  The history behind the injuries should have triggered the need for an examination to determine if he sustained a head injury.  

3.  The applicant states that he was qualified for and he should have received a Medical Evaluation Board (MEB) which would have resulted in a medical retirement.  The nature of his current discharge makes him ineligible to receive the services offered by a number of programs designed to assist disabled veterans.  He states that he sought treatment through the VA and pursued a VA disability claim.  Shortly after treatment began, the TBI team at the VA diagnosed him with a serious TBI and physicians have indicated that he is totally disabled and unable to enter the work force.  He further contends that his TBI went undetected at the time of discharge and affected his responses to the military training facility staff as well as his ongoing ability to provide effective/correct information to personnel processing his discharge.  Had he been evaluated by an MEB prior to discharge it is reasonable to believe they would have discovered his TBI and recommended a medical retirement. 

4.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), VA rating decisions, seven third-party statements, and VA treatment records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The American Legion, the applicant's counsel, did not provide additional evidence and/or argument.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 October 2005 and was awarded military occupational specialty 13F (Fire Support Specialist) upon completion of initial entry training.  

2.  He served in Afghanistan from 13 May 2007 to 14 July 2008.

3.  He was released from active duty on 21 March 2009 upon completion of required active service and transferred to the U.S. Army Reserve Control Group (Reinforcement).

4.  There is no evidence in the available records indicating he was unfit to perform his military duties prior to release from active duty.  There is also no evidence indicating he sustained injuries as a result of hostile action.  

5.  He provided VA rating decisions that show he is currently receiving service- connected disability compensation for a number of medical conditions.  He also provided seven third-party statements that support his request for a medical retirement and relief from military service obligations.  These statements do not show the applicant was unfit to perform military duties prior to his release from active duty or that he received injuries as a result of hostile actions while in Afghanistan. 

6.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness.
7.  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 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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

8.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

9.  CRSC, as established by Title 10, U.S. Code, section 1413a, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it were not for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for Reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10-percent disabling.  The 2008 National Defense Authorization Act expanded the CRSC eligibility to include anyone receiving military retired pay.

10.  Title 10, U.S. Code, section 12319 states that under regulations prescribed by the Secretary of Defense, a member of the Ready Reserve may be ordered without his consent to muster duty one time each year.  A member ordered to muster duty under this section shall be required to perform a minimum of two hours of muster duty on the day of muster.

11.  The U.S. Army Human Resources Command (USAHRC) web site provides that IRR Soldiers are required to keep USAHRC apprised of changes in their medical status that may render them unfit to serve.  USAHRC provides Soldiers with several means of notifying the Command of such changes.  IRR Soldiers also need to advise the Command of medical diagnoses or disability ratings they may receive from the VA after leaving active duty.  All mobilization orders for IRR Soldiers contain an 800 number that they may call to initiate a request for a delay or exemption.  Any IRR Soldier who receives mobilization orders, and formally submits a delay or exemption request, will not be mobilized until his case has been reviewed.  In addition, all mobilized IRR Soldiers are screened at mobilization stations for medical conditions that may render them non-deployable.

12.  The AW2 is the official U.S. Army program that assists and advocates for severely wounded, ill, and injured Soldiers, veterans, and their families.  AW2 supports the most severely wounded Soldiers and veterans who suffer from injuries or illness incurred in the line of duty after 10 September  2001, in support of overseas contingency operations since September 2011.  These Soldiers and veterans must receive or expect to receive an Army Physical Disability Evaluation System (PDES) rating of 30% or greater in one or more specific categories.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is requesting correction of his records to show he qualifies for a medical retirement, entitlement to enroll in the AW2, CRSC, relief from the IRR muster requirement, and award of the Purple Heart.

2.  He returned from Afghanistan on or around 14 July 2008 and continued to serve for almost 9 months.  There is no medical evidence available and he provided none showing he had any disabling medical conditions prior to his release from active duty on 21 March 2009 or that he warranted processing through medical channels.  There is also no evidence of record showing he was ever found to be medically unfit to perform his military duties.  Therefore, he is not entitled to a medical retirement and/or CRSC.  

3.  A disability rating granted by the VA would not call into question the application of the fitness standards by the U.S. Army.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  There is no evidence showing he was ever found to be medically unfit to perform his military duties.  As a result, he was not processed through the Army PDES at the time of discharge.  He is now properly being treated and compensated for all his service-connected conditions by the VA.

4.  There is no evidence in the available records substantiating his claim that he was wounded as a result of hostile action.  Therefore, there is insufficient evidence to confirm his entitlement to the Purple Heart.

5.  In reference to the applicant's requests for relief of IRR muster requirement, he should visit the USAHRC web site for further guidance in obtaining an exemption from involuntary mobilization/muster duty.

6.  Based on the foregoing, there is no basis 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)                                         AR20110004978



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ABCMR Record of Proceedings (cont)                                         AR20110004978



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