IN THE CASE OF:	  

		BOARD DATE:	    8 March 2012

		DOCKET NUMBER:  AR20110011357 


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, the opportunity to be processed under the Physical Disability Evaluation System (PDES) and be retired by reason of physical disability.

2.  The applicant states he was erroneously discharged from the Puerto Rico Army National Guard (PRARNG) and he was transferred to the Retired Reserve after being determined unfit for retention by a Fit for Duty Determination Board (FFDDB) for his medical condition.  He states his Post Traumatic Stress Disorder (PTSD) condition occurred while on active duty in support of Operations Noble Eagle and Enduring Freedom and his unit failed to complete a line of duty determination.  Additionally, he was never afforded the opportunity to appear before a medical or physical evaluation board (MEB/PEB).  

3.  The applicant provides a copy of:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* documents from the Combat Stress Control Team
* his FFDDB
* his discharge orders
* documents from the Department of Veterans Affairs (VA)


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 PRARNG on 9 July 1994.  He completed his training as an infantryman and continued to serve through continuous reenlistments.  He was advanced to the pay grade of E-4 on 4 November 1996.

3.  On 14 February 2003, he was ordered to active duty in support of Operations Noble Eagle and Enduring Freedom.  He then served in Guantanamo Bay, Cuba from 4 August 2003 to 13 January 2004 and he served on Marine duty from
13 April 2003 to 19 May 2003.  He was honorably released from active duty on 23 February 2004 due to completion of required service and he was returned to his PRARNG unit.

4.  On 30 June 2005, an FFDDB convened at Camp Santiago, Salina, Puerto Rico.  While all of the documents associated with the FFDDB are not present in the available records, the available documents show the applicant was diagnosed as having PTSD and major depressive disorder.  He was issued a permanent profile and he was deemed unfit for retention in the PRARNG.  On
11 July 2005, he was honorably discharged from the PRARNG.

5.  On 20 January 2011, the applicant was granted the following disability compensations:

* PTSD, chronic with depression – 100% from 24 February 2004
* Left Shoulder Impingement Syndrome, status post left shoulder strain – 30%
* Arthritis of left ankle – 10%
* Arterial Hypertension – 10%
* Diabetes Mellitus, type II – 10%
* Peripheral Neuropathy, right upper extremity – 10%

6.  National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26 j(1), in effect at the time, provides that commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination.  Commanders who do not recommend retention will request the Soldier’s discharge.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.  It states MTF (medical treatment facility) commanders who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his/her office, grade, rank, or rating.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.

8.  Army Regulation 635-40 states MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s contentions have been noted and appear to lack merit.  While the applicant was treated for major depression and informed the physician that he had PTSD prior to his separation, the applicant has failed to show through the available evidence that he was diagnosed with PTSD prior to his separation. 

2.  The available records show that despite being treated for depression for at least 2 years, the applicant was not initially rated by the VA for depression or PTSD but was subsequently rated by the VA in 2008, 3 years after his discharge.   

3.  The applicant has not provided and the evidence of record does not contain sufficient evidence to show the applicant was denied due process, that he was not afforded his rights, or that he was not properly counseled at the time.  The applicant has also failed to produce any evidence of any traumatic events that occurred during his deployments that would support a diagnosis of depression or PTSD.  Therefore, it must be presumed in the absence of evidence to the contrary that the applicant’s administrative discharge was accomplished in accordance with the applicable regulations with no violations of any of the applicant’s rights. 

4.  It must also be presumed, in the absence of evidence to the contrary, that at the time the applicant underwent his FFDDB, the medical personnel properly determined that his medical condition did not warrant consideration under the PDES and/or referral to an MEB/PEB.  Accordingly, it appears he was properly discharged under administrative procedures in accordance with the applicable regulations.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request for review under the PDES more than 7 years after the fact.

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)                                         AR20110011357



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ABCMR Record of Proceedings (cont)                                         AR20110011357



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