IN THE CASE OF:	  

		BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110015913 


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 military records to show he was discharged from the Tennessee Army National Guard (TNARNG) due to a physical disability.

2.  The applicant states he was told he would receive a medical discharge but instead he was discharged due to being unfit for duty.  He contends his discharge is wrong.  He has been rated by the Department of Veterans Affairs (VA) resulting in a physical disability determination of 40 percent (%) for a traumatic brain injury (TBI) and 50% for post traumatic stress disorder (PTSD).  He believes no one read this VA rating determination; but rather, just rushed the paperwork through.  He contends he has letters from doctors to support his case.

3.  The applicant further states when he was in Afghanistan in 2006, he was hit by an improvised explosive device (IED).  After returning home he went to the VA for a medical examination.  He was still drilling with his unit.  When his unit was notified that they were going overseas again, the State Medical Review Board (SMRB) said he had some problems.  He went the VA for a mental health examination resulting in a finding of TBI and PTSD.  After this he was told he could not perform any more drills with his unit.  He was informed by mail that he was unfit for duty.  He feels he should have been medically discharged or retired because he has 15 years of service.  He contends that other stuff was done under the table and wants his case relooked.


4.  The applicant provides approximately 250-300 pages of documents that were apparently copied from his service personnel records, service medical records, and VA medical records.  Many of these documents are submitted multiple times.  The packet of documents was not organized, labeled, or otherwise identified as to what importance the applicant attaches to these documents relative to his issue.  Additionally, no supporting letters were received from any doctors.

CONSIDERATION OF EVIDENCE:

1.  On 1 March 2005, the applicant, a prior service Soldier, in the rank/grade of sergeant (SGT)/E-5, enlisted in the TNARNG and as a Reserve of the Army.

2.  On 10 November 2009, the Deputy Chief of Staff, Personnel, TNARNG, advised the applicant by memorandum that an SMRB determined he had failed to meet the medical retention standards for continued service in the TNARNG.

	a.  He was informed that the basis for this SMRB was Army Regulation
40-501 (Standards of Medical Fitness), paragraph 3-32c (Mood Disorders - Persistence or recurrence of symptoms resulting in interference with effective military performance) and paragraph 3-41e (General and miscellaneous conditions and defects - Miscellaneous conditions and defects).

	b.  He was informed that the SMRB unanimously recommended his involuntary separation.

	c.  He was informed that Soldiers who fail to meet the medical retention standards for duty by any authority will not perform Inactive Duty for Training (IDT), Annual Training (AT), Active Duty for Special Work (ADSW)

	d.  He was advised that if he wished to appeal this decision he had 30 days from receipt of the letter to submit a written request to the Deputy State Surgeon's Office requesting a non-duty physical evaluation board (PEB).

	e.  He was informed that the request was to be included in a packet sent through unit channels and he was to include the original evaluation packet.

	f.  He was referred to Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for further information concerning the appeals process.

	g.  He was further not allowed to perform any type of military duty during the appeal process.

3.  On 8 December 2009, the applicant wrote in a memorandum addressed to the Deputy State Surgeon's Office, located in Nashville, TN, that he had received the SMRB fitness determination.

	a.  He acknowledged his right to request a non-duty related PEB; however, he instead requested the SMRB start the medical evaluation board (MEB) process because his medical conditions were duty-related.

	b.  He further requested that if the SMRB was unwilling to start the MEB process, then he asked to be referred to the PEB.

	c.  He stated the conditions mentioned in the SMRB memorandum are related to his depression and inability to stay awake.  These conditions are also related to his VA diagnoses of PTSD.

	d.  He contends his inability to perform the Army physical fitness training is due to the injuries to his knees and back that occurred during a jump at Fort Bragg, NC while he was on active duty.

4.  The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 10 December 2009, indicates he was honorably discharged from the TNARNG and as a Reserve of the Army due to being medically unfit for retention.  He had completed 13 years, 10 months, and 
13 days of total service for pay.

5.  The applicant provided a partial copy of his appeal of a VA rating decision that was made in 2006.  The available documents indicate the first determination of his obstructive sleep apnea was changed to service-connected and rated at 30% effective 4 April 2007 and to 50% effective 25 August 2008.  His overall or combined rating varied from 60 to 100% during the period from 4 April 2007 through 7 March 2011.  The portion of the VA rating decision concerning TBI and PTSD raised by the applicant is not discussed in the available VA documents.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating.

	a.  This regulation provides for MEBs which 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 qualifications for 


retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board recommends referral of the Solider to a PEB.

	b.  Chapter 4 of this regulation provides for the separation of enlisted Soldiers who are found unfit buy a PEB due to a condition which existed prior to service or occurred in the line of duty and not due to a Soldier's misconduct.  Paragraph 
4-24b(4) provides for separation for physical disability without severance pay.

	c.  This regulation further states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.

7.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

8.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U.S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected to show he was discharged from the TNARNG due to a physical disability.  He argues that his medical conditions are duty-related and he should have been evaluated by an MEB and/or a PEB.

2.  The evidence of record shows the applicant was separated from the TNARNG in 2009 for failing to meet medical retention standards.  At the time his conditions were determined to have been non-duty related.

3.  The available evidence shows the TNARNG gave the applicant an opportunity to show that his disqualifying conditions of mood disorder and miscellaneous condition were in the line of duty.  Unfortunately, the applicant did not do so, and has not provided any such evidence for review now.

4.  In addition to the medically disqualifying conditions for which the applicant was separated, he now contends he was diagnosed by the VA with PTSD and TBI.  However, he has not provided any documentation suggesting that either of these conditions were present or unfitting at the time of his separation.

5.  The applicant's contention that he has completed 15 years of service is not supported by the available evidence.  His NGB Form 22 clearly shows a total of 13 years, 10 months, and 13 days of service for pay.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110015913



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ABCMR Record of Proceedings (cont)                                         AR20110015913



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