IN THE CASE OF:	  

		BOARD DATE:  13 March 2012

		DOCKET NUMBER:  AR20110016211 


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 his release from active duty (REFRAD) on 27 June 2007 be voided.  He also requests that he receive back active duty pay and allowances from 27 June 2007 until the date he was placed on the Temporary Disability Retired List (TDRL).   

2.  The applicant defers his statement to counsel.

3.  The applicant defers submission of additional evidence to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's REFRAD on 27 June 2007 be voided and that he receive all back pay and allowances until he was placed on the TDRL.

2.  Counsel states the applicant was activated in support of Operation Iraqi Freedom from 17 June 2006 to 24 June 2007.  He suffered injuries and was treated for post-traumatic stress disorder (PTSD) prior to his REFRAD.  His conditions were found to be in the line of duty (LOD) and he was referred into the Physical Evaluation System (PDES).  He was found unfit for further duty and placed on the TDRL.

3.  Counsel states that, in accordance with Department of Defense Instruction (DODI) 1241.2 (Reserve Component Incapacitation System Management), a Reserve member on active duty for 31 days or more shall be retained on active duty while the member's illness is being evaluated in the PDES.  He states the applicant was diagnosed with an unfitting condition prior to his REFRAD and he should have been returned to active duty while he was being evaluated for fitness.

4.  Counsel provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status) dated 
30 September 2009
* U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort McCoy, Fort McCoy, WI Order 154-65, dated 3 June 2007
* Headquarters, Fort McCoy Permanent Orders 165-002, dated 14 June 2006
* two sets of orders assigning the applicant between troop program units (TPU)
* a typed unsigned, undated statement, apparently from the applicant
* a Department of Veterans Affairs (VA) Rating Decision, dated 27 June 2008
* three pages from a VA award letter, date unknown
* emails, dated from 4 March 2009 to 12 March 2009, between the applicant and U.S. Army Reserve (USAR), Army Medical Command (ARMEDCOM)
* the applicant's Physical Evaluation Board (PEB) Proceedings, dated 
12 April 2011
* U.S. Army Physical Disability Agency (USAPDA) Orders D126-20, dated 
6 May 2011

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the USAR on 15 July 1999.  He had previously served in the Army National Guard for 2 years, 2 months, and 20 days.   His military occupational specialty (MOS) was 68W (Health Care Specialist).

2.  He was ordered to active duty as a member of his USAR unit, to report 
17 April 2006, for mobilization for Operation Iraqi Freedom.  His unit was deployed to Iraq on or about 18 June 2006.  He served in Iraq from 18 June 2006 to 30 May 2007.

3.  He received a DA Form 2166-8 (NCO (noncommissioned officer) Evaluation Report)) (NCOER) for the period from 1 May 2006 to 30 April 2007.

	a.  His rater indicated he performed satisfactorily, providing first aid to military and civilian casualties, and he was technically and tactically proficient.

	b.  Part IV (Rater) b (Competence) is marked as Excellence and states he:
* performed flawlessly during a mortar attack as a combat medic,   treating 8 casualties on 21 December 2006
* rotated through the Combat Support Hospital treating combat wounded Soldiers to further his training in combat triage medicine

	c.  Part IVd (Leadership) is marked as Needs Improvement and states he:

* failed to set a good example by violating General Order Number One
* displayed a prime example of courage under fire, directing others during a mortar attack
* trained, supervised, and assisted Combat Lifesaver, organizing and standardizing Combat Lifesaver bags

	d.  His rater marked him as fully capable for overall potential for promotion and/or service in positions of greater responsibility.

	e.  His senior rater marked him successful for overall performance and superior for overall potential for promotion and/or service in positions of greater responsibility.

4.  On 24 June 2007, he was REFRAD by reason of completion of required active service.  U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort McCoy, Fort McCoy, WI Order 154-65, dated 3 June 2007, released him from active duty, not by reason of physical disability.  He completed 1 year, 2 months, and 8 days of active service that was characterized as honorable.

5.  He received an NCOER for the period 13 July 2007 to 12 July 2008.

	a.  His rater stated he:

* displayed loyalty during Operation Iraqi Freedom
* showed courage under pressure
* performed well during Operation Iraqi Freedom

	b.  Part IVb is marked Success and states he:

* was effective in the application of his skill
* practiced sound risk taking
* avoided hasty decisions
* had the ability to achieve desired results

	c.  Part IVd is marked Success and states he:
* sought personal growth and development
* expected and demands the best
* was always ahead of the action

	d.  His rater marked him as fully capable for overall potential for promotion and/or service in positions of greater responsibility.  

	e.  His senior rater marked him successful for overall performance and superior for overall potential for promotion and/or service in positions of greater responsibility.

6.  He received two medical examinations at the VA Medical Center, Columbia SC:

* a general medical examination on 11 April 2008
* a PTSD examination on 24 April 2008

7.  On 27 June 2008, a VA Rating Decision granted him service connection for:

* PTSD - 100 percent
* right wrist tenosynovitis - 10 percent
* right knee patellofemoral syndrome - 10 percent
* left knee patellofemoral syndrome - 10 percent
* bilateral plantar fasciitis - 10 percent
* bilateral tinnitus - 10 percent
* scar on head - 0 percent
* scar right leg - 0 percent
* scars left leg - 10 percent
* status post chronic compartment syndrome left calf - 10 percent
* status post chronic compartment syndrome right calf - 10 percent
* concussion with post concussive headaches and memory loss - 10 percent

8.  The DA Form 2173, dated 30 September 2009, submitted by counsel, shows the following conditions were determined to be incurred in line of duty:

* torn rotator cuff in Iraq
* PTSD developed during mobilization to Iraqi theater and persisted

9.  His Medical Evaluation Board (MEBD) Proceedings and Narrative Summary were not available for review.

10.  On 12 April 2011, a Physical Evaluation Board found him unfit for:

* PTSD - with a disability rating of 50 percent
* right sciatic nerve radiculopathy described by MEBD as reflex sympathetic dystrophy - with a disability rating of 20 percent
* left sciatic nerve radiculopathy described by MEBD as reflex sympathetic dystrophy - with a disability rating of 20 percent

11.  The PEB found that 29 other diagnoses listed on the MEBD met retention standards and were found by the PEB to not be unfitting either independently or in combination with any other conditions as a review of the case file supports that they are not a significant limitation on the Soldier's ability to perform his duties of his MOS.

12.  The PEB recommended a combined rating of 70 percent and that he be placed on the TDRL with a reexamination during December 2011.

13.  On 10 June 2011, he was placed on the TDRL with a 70 percent disability rating.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEBD.  Those members who do not meet medical retention standards based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness) will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

15.  Title 38, U.S. Code, 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.  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.

16.  Department of Defense Instruction (DODI) 1241.2, paragraph 6.6.3.2, states a Reserve component member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member's consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System determination.

DISCUSSION AND CONCLUSIONS:

1.  The first diagnosis of PTSD of record is the VA PTSD examination completed on 24 April 2008, 10 months after he was REFRAD.  There is no evidence he was either diagnosed or treated for this condition prior to his being REFRAD.  

2.  The two NCOERs for periods ending  30 April 2007 and 12 July 2008 show he was able to perform the duties of his MOS both prior to and after his REFRAD.

3.  The exact date he was referred to the PDES is not known.  However, the evidence shows that he was not referred to the PDES until well after his REFRAD.  The DODI counsel cites refers to those individuals who are referred to the PDES while still on active duty.  There is no evidence to show he was on active duty at the time he was referred to the PDES.

4.  He was found unfit for duty over 3 years after his REFRAD.  

5.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  Accordingly, it is not unusual for the VA to award a veteran a disability rating when the veteran was not separated due to physical unfitness.

6.  In view of the above, there is an insufficient basis to grant relief in this case.

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)                                         AR20110016211



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ABCMR Record of Proceedings (cont)                                         AR20110016211



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