BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110019737 


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 reconsideration of his earlier request for a medical retirement and applicable rating.

2.  The applicant states, in effect, he was injured in the line of duty.  He contends that he requested a discharge because he was told he was not eligible for a medical retirement because he did not have 15 years of service.  He misunderstood this to mean he was not eligible for a medical evaluation board (MEB).  He currently suffers from Post Traumatic Stress Disorder (PTSD), and he is in both physical and emotional pain.  If not for his injuries he believes he would still be serving today.

3.  The applicant provides:

* DD Form 2795 (Pre Deployment Health Assessment), dated 7 March 2005
* Standard Form (SF) 513 (Medical Record), dated 14 June 2005
* SF 600 (Health Record -Chronological Record of Medical Care), for the period 28 June 2005 through 7 September 2005
* DA Form 2176 (Statement of Medical Examination and Duty Status), dated 8 September 2005
* Appointment of Line of Duty (LOD) Investigating Officer memorandum, dated 31 October 2005
* LOD Investigating Officer Findings, dated 17 November 2005
* DD Form 261 (Report of Investigation LOD and Misconduct Status), dated 29 November 2005
* Department of Veterans Affairs (VA) letter, dated 19 September 2008
* Department of VA letter, dated 14 October 2010

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110000185, on 30 August 2011.

2.  The applicant provides LOD findings and medical documents which were not previously considered.  Therefore, it is considered new evidence and warrants consideration by the Board.

3.  During the original review of this case, his complete medical records, discharge packet, nor LOD determination were available for review.  The Board concluded that he elected to be discharged in lieu of a medical board.  Further, there was no evidence to show his medical condition was incurred in the LOD or while entitled to basic pay; therefore, it was presumed he had been properly discharged.

4.  Having over 4 years of active service, he enlisted in the U.S. Army Reserve (USAR) on 6 August 2000.  He reenlisted in the USAR on 7 March 2004.

5.  He was ordered to active duty in support of Operation Iraqi Freedom effective 22 March 2005.  He returned to the United States on 11 July 2005.

6.  The 81st Regional Support Command (RSC) Assistant to the Command Surgeon completed his periodic health assessment with physical examination on 16 September 2009, with the following comments/findings:

* PTSD, anxiety, panic attacks
* major depressive disorder
* obstructive sleep apnea
* left substantial hallux valgus; left foot and ankle pain
* low back pain, significant left ankle and foot pain; multilevel lumbar degenerative changes; L4-5 moderate central canal stenosis, L4-5 mild bilateral impingement of the L5 nerve roots, L3-4 bilateral neural foraminal stenosis
* L3-4 broad based bulging disc with annular tear, encroaching spinal canal
* L3-4 spondylolysis; L4-5 grade 1 spondylolisthesis
* right carpal tunnel with surgery planned for June 2009
* right shoulder pain with signs and symptoms of impingement
7.  The ABCMR analyst contacted his last unit and obtained copies of his separation counseling documents which show:

   a.  On 30 June 2010 he requested an honorable discharge.  His request read:

"As a result of a medical record review I was found medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).  I received notification of medial unfitness memorandum from the 81st RSC Health Service Branch with instructions on different separation options.  In accordance with Army Regulation 135-178 (Army National Guard and Army Reserve- Enlisted Administrative Separations), paragraph 15-1, k (Medically Unfit for Retention).  I request an honorable discharge."

   b.  On the same day, his battalion commander counseled him regarding his request for separation in lieu of a medical board and he acknowledged counseling with his signature.  In Part III (Summary of Counseling) of his DA Form 4856 it states he was notified of medical unfitness and elected an honorable discharge in lieu of a medical board.  Further, it lists his known conditions as:

* PTSD
* Depression
* Obstructive sleep apnea
* Left foot and ankle pain
* Right shoulder pain

   c.  He was given an Acknowledgement of Notification of Medial Unfitness for Retention and Election of Options with the following elections:

* Reassignment to the Retired Reserve with 20 qualifying service
* Reassignment to the Retired Reserve with early qualification of eligibility based on at least 15 years but less than 20 qualifying years
* Honorable Discharge from the USAR
* Informal Physical Evaluation Board (PEB) review of his medical record for a final determination of his medical fitness for retention

   d.  On 24 November 2009, he elected to receive an honorable discharge from the USAR.



8.  The evidence provided by the applicant shows:

	a.  On 7 March 2005, he stated his health was "Very Good" on his pre-deployment health assessment.

	b.  Medical documents show he was initially treated at the Balad Internal Medicine Clinic on 14 June 2005 for:

* right arm/shoulder pain
* splinter hemorrhage of thumb and index finger
* Raynaud's type phenomenon of the right hand

   c.  Between 28 June 2005 through 7 September 2005 he was treated at Landstuhl Regional Medical Center for various medical conditions related to his deployment to Iraq to include:
   
* Arthropathy
* Arterial Thrombosis
* Joint Pain Fingers
* Carpal Tunnel Syndrome
* Limb Pain
* Lumbago
* Tendonitis Supraspinatus
* Back Stain Lumbar
* Shoulder Sprain Anterior Glenoid Labrum Lesion
* Tendonitis Rotator Cuff

	d.  DA Form 2173, dated 8 September 2005, stated that on or about 15 May 2005, while deployed to Taji, Iraq, in support of OIF, he was diagnosed with an anterior glenoid labrum lesion after wearing full battle gear and he was still undergoing physical therapy.   His injury was determined to be in the LOD.  Subsequent LOD findings and the report of investigation support this determination.

	e.  He provided two letters from the VA which address how his PTSD resulting from his combat exposure in OIF and his Major Depressive Disorder led to his unemployability, his inability to sustain employment, lack of self worth, inability to deal with the public and relationship issues in his family life.



9.  The applicant's service medical records are not available for review.

10.  Army Regulation 135-178 (Enlisted Administrative Separations), establishes the policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.

11.  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 incurred while entitled to basic pay.  It states 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 his or her office, grade, rank, or rating.  Under the laws governing the Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically-unfitting disabilities must meet several LOD criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or must have been the proximate cause of performing active duty or inactive duty training.

12.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement.  Paragraph 9-12 states that Reserve Component (RC) Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities.  Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the U.S. Army Reserve Command Regional Support Command or the AHRC Command Surgeon's office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.
   
13.  Army Regulation 135-178 sets policies and procedures for administrative separation of Army National Guard of the United States and USAR enlisted Soldiers.

	a.  Paragraph 15-1k states discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is:

   (1)  granted a waiver under Army Regulation 40-501, as applicable;

      (2)  determined fit for duty under a non-duty related PEB fitness determination under the provisions of Army Regulation 635-40; or

   (3)  eligible for transfer to the Retired Reserve under the provisions of Army Regulation 140-10.
   
   b.  Soldiers who do not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training will be processed as specified in Army Regulation 635-40 if otherwise qualified.

14.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his military records be corrected to show he was retired due to physical disability.

2.  The evidence of record shows:

   a.  On 29 November 2005, he received a LOD determination for anterior glenoid labrum lesion which he sustained on or about 15 May 2005 while serving on active duty in support of OIF.

   b.  On 30 June 2005, as the result of a physical health assessment, he was notified that he was found to have several medical conditions that did not meet retention standards.  His DA Form 4856 listed those conditions as:

* PTSD
* Depression
* Obstructive sleep apnea
* Left foot and ankle pain
* Right shoulder pain



	c.  He was notified of his medical unfitness based on the conditions listed above and informed of the options available to him.  He did not have sufficient service to be eligible for transfer to the Retired Reserve, which left two options available to him:  request honorable discharge from the USAR or request a PEB to review his medical records for a final determination of his medical fitness for retention.  He requested honorable discharge from the USAR in lieu of a medical board.

3.  The severity of his medical conditions and the impact they have had on his professional and personal life are not in question; however, in order to receive a physical disability retirement a member must have at least 20 years of active service or a disability rated at least 30 percent by a PEB.  He voluntarily elected to be discharged in lieu of a medical board and as such did not receive a rating.  Lacking evidence to the contrary, he was properly discharged.

4.  Based on the available evidence, his requests for reconsideration should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110000185, dated 30 August 2011.



      __________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)                                         AR20110019737



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ABCMR Record of Proceedings (cont)                                         AR20110019737



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