IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20110017551 


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 discharge be changed from an honorable to a medical based on his service in Iraq.

2.  He states he should have received a medical discharge because he is unable to meet the Army standards due to injuries caused by improvised explosive devices (IED), traumatic brain injury (TBI), and other medical problems that occurred in Iraq, leaving him unfit for military duty.
    
3.  He provides the following:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 4187 (Personnel Action)
* Standard Form (SF) 507 (Clinical Record - Functional Capacity Certificate)
* SF 600 (Chronological Record of Medical Care) 
* Certification of Health Care Provider
* Department of Veterans Affairs (VA) Rating Decision, dated 30 November 2009 
* 281 pages of progress notes from the VA

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the U.S. Army Reserve (USAR) on 28 April 2003.  He held military occupational specialty 12B (Combat Engineer).  He was ordered to active duty (AD) in support of Operation Iraqi Freedom on 30 September 2004.  He served in Iraq from 1 January to 13 December 2005.

2.  He submitted a DA Form 4187, dated 7 March 2005, which shows he was recommended for award of the Purple Heart based on burns he received to his hand and head on 26 February 2005, due to an IED detonating and engulfing his vehicle in flames.  His DD Form 214 shows he was awarded the Purple Heart.

3.  On 15 January 2006, he was released from AD and returned to the USAR after serving for 1 year, 3 months, and 15 days.  The DD Form 214 he was issued shows in:

* Item 9 (Command to Which Transferred), Detachment 1, 467th Engineer Battalion, Greenwood, MS
* Item 23 (Type of Separation), Release from AD
* Item 24 (Character of Service), Honorable
* Item 28 (Narrative Reason for Separation), Completion of Required AD

4.  He submitted a page from his medical record, dated 28 January 2007, from the North Florida/South Georgia Veterans Health System, which stated he had been under the care of the Tallahassee Out-Patient Clinic, Mental Health Clinic, since 2005 and 
the clinical psychologist saw him for psychological care and a doctor saw him for psychiatric care.  The clinical psychologist also stated that he was diagnosed with post-traumatic stress disorder (PTSD).

5.  He provided an SF 507 (completed by the applicant and physician), dated 18 March 2008, which shows the applicant was diagnosed with PTSD/TBI.  In the examining physician's section it shows in:

	a.  Item 1 (Examiner's findings:  I find the following diagnoses to contribute to the physical limitations claimed above) the entry "PTSD/TBI with associated headache and dizziness."

	b.  Item 2 (Examiner's Statement) "I have reviewed the Soldier's functional capacity certificate and ‘CONCUR’ with his self assessment."

	c.  Item 3.  these limitations  are "permanent." 

6.  His SF 600, dated 18 March 2008, shows due to his diagnosis of PTSD/TBI he was permanently unable to perform any events of a physical fitness test.  

7.  He submitted a U.S. Department of Labor, Certificate of Health Care Provider, dated 20 May 2008, which indicated he had applied for enrollment in the Family Medical Leave Act, due to his diagnoses of PTSD, depression, TBI with headaches, dizziness, memory problems, and visual problems that commenced in 2005, and were permanent.


8.  His record contains:

	a.  a Periodic Health Assessment (USAR & ARNG) and allied documents which show he underwent a periodic health assessment on 13 February 2009.  The provider noted he had a history of a TBI, chronic headaches, dizziness, memory loss, PTSD, and some head injury in 2005.  The provider also stated that the applicant received a 70 percent (%) disability from the VA. 
   
	b.  an SF 507, dated 13 February 2009, which shows the applicant stated he was diagnosed with TBI/PTSD.  In the examining physician's section it shows in:

		(1)  Item 1, the entry "depressed, chronic headache, personality adjustment disorder, and forgetfulness."

		(2)  Item 2, "I have reviewed the Soldier's functional capacity certificate and "CONCUR" with his self assessment.

		(3)  Item 3 these limitations are "permanent."  

	c.  an SF 600, dated 13 February 2009, which noted a history of TBI while deployed, chronic headaches, mental disturbances, "depressed, PTSD, dizziness, and forgetfulness."  

	d.  a TBI questionnaire, dated 13 March 2009, completed by the applicant and the provider shows he sustained a TBI as a result of being hit by an IED in March 2005.

	e.  A DA Form 3349 (Physical Profile), dated 27 April 2009, shows he was recommended for a permanent “3” profile due to PTSD with suicidal ideations and TBI.  

		(1)  item 4c (If a Permanent Profile with a 3 or 4 PULHES, does Soldier Meet Retention Standards in accordance with Chapter 3, Army Regulation 40-501(Standards of Medical Fitness)), shows the box military occupational specialty (MOS)/Medical Retention Board was checked.   

		(2)  item 10 (other, i.e. functions and capabilities) shows he reported a 70 percent disability rating and could perform a limited walk in combat boots and a limited walk with field gear and rucksack.
   
   f.  A Reserve Health Readiness Program form, dated 10 September 2009, Subject:  Results of Periodic Health Assessment, which shows:
   
   	(1)  The applicant was not fit for retention under the provisions of Army Regulation 40-501.  
   	(2)  The results of the periodic health assessment required the command surgeon to review and/or take appropriate action.
   
   	(3)  The Service Member did not meet the criteria for the cardiovascular screening program and was referred to a medical provider outside of the military system for follow.
   
   	(4)  The Service member had one or more abnormal findings that required follow up with a civilian medical provider.
   
   	(5)  Physical abnormalities were noted; however, there were no documented limitations for profiles at that time.  The noted abnormalities included the Service Member's noting of a history of heart trouble/chest pain, frequent headaches, joint and back pain, high blood pressure, and hives.

9.  HRC's integrated web services shows on:

	a.  2 May 2009, the surgeon general received the applicant’s physical health assessment review.

	b.  4 May 2009, the initial screen was completed.

	c.  5 May 2009, the applicant was asked by email and mail to provide additional medical documentation.  There is no evidence he provided additional documentation.

	d.  11 May 2010, the case was closed.  The physical health assessment expired.  

10.  Orders Number D-05-107440, issued by the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 3 May 2011, show he was honorably discharged from the USAR.

11.  The VA Certificate, dated 10 August 2010, shows he received a service connected disability rating of 100%.  He did not submit his initial VA Rating Decision.  

12.  He submitted 281 pages of progress notes from the VA, which show he was rendered treatment from 27 July 2007 to 10 August 2011. 

13.  None of his service records from his active duty service are available.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.
	a.  Paragraph 3-1 (Standards of unfitness because of physical disability) provides 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.

	b.  Paragraph 3-2 (Presumptions), subparagraph b, provides that when a Soldier is being separated or retired for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit.  The presumption of fitness can be overcome if the evidence establishes that he/she was unable to perform his/her duties, or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

15.  Title 38, U.S.Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of any VA rating does not establish error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, 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's contention that his record should be corrected to show he was medically retired due to his diagnoses of PTSD/TBI was carefully considered.

2.  The applicant contends that he was unfit while in Iraq.  However, although he provides a large volume of VA medical records he provides no medical documentation of any injury that occurred in Iraq.

3.  The evidence of record shows that the applicant had a periodic physical assessment in 2009.  The assessment recommended he follow up with his civilian physician regarding some physical abnormalities and while he required some activity limitations, there is no evidence the applicant provided the requested documentation or was found unqualified for service based on medical unfitness.  Therefore, in the absence of evidence to the contrary, it is presumed the applicant was medically qualified for continued/further service at that time.

4.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency's examinations and findings.

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 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)                                         AR20110017551





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ABCMR Record of Proceedings (cont)                                         AR20110017551



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