IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110021096 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's records be corrected to show:

* the applicant's traumatic brain injury (TBI) was found unfitting
* the applicant is rated at least 70-percent disabled from the residuals of his TBI
* the applicant's injuries be found combat-related
* the applicant was permanently retired by reason of physical disability

2.  Counsel states the applicant sustained a TBI caused by an improvised explosive device (IED) blast during his deployment to Iraq.  The injury interfered with his ability to reasonably perform the duties required of his grade and military specialty.  He should have been found to have failed retention standards by a physical evaluation board (PEB).  Counsel provides a chronology of the applicant's military service, deployment to Iraq, injury, treatment in various clinics, redeployment from Iraq, and discharge from the Army.

3.  Counsel provides:

* Standard Forms 600 (Chronological Record of Medical Care)
* radiological reports
* Post-Deployment Health Assessment

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 3 March 1998 and he held military occupational specialty (MOS) 55D (Explosive Ordnance Disposal Specialist) – later redesignated as MOS 89D.  He executed a 4-year reenlistment on 15 December 2004.

2.  He served in Kuwait/Iraq from 1 December 2003 to 1 May 2004 and from 22 July 2006 to 29 March 2007.

3.  His service medical records are not available for review.  However, he and counsel provide multiple chronological records of medical care that show:

	a.  On 5 October 2006, the applicant was a tactical commander in a military vehicle when an IED went off on the side of the road near the back right.  He reported that the vehicle got messed up pretty good.  He also reported having headaches, a tight neck, sinus pain, ringing in his ears, and that he was 
90-percent deaf in his right ear due to the blast.  He was released to duty with no limitations.

	b.  On 15 February 2007, he was seen by medical personnel in Iraq for post-concussive syndrome after he reported having blurry vision with increased loss of visual acuity in the dark.  He was released to duty with no limitations.

	c.  On 6 March 2007, he was seen by medical personnel in Iraq for a head injury.  He was issued a referral to neurology for what appeared to be a cognitive disorder.  He was released to duty with no limitations and instructed to follow up.

	d.  On 12 March 2007 subsequent to a radiological evaluation, the applicant reported he had moderate, aching, dull-type pain mostly localized in the frontal and temporal area of the head.  He took medications to alleviate the pain.  The medical doctor indicated the applicant's neurological examination was quite non-focal and opined that the applicant may have some stress-related, tension-type headache and memory problems.

	e.  On 26 March 2007, he was seen by medical personnel in Iraq for post-concussion syndrome, refractive error (myopia), astigmatism, vitreous floaters in the right eye, and concussion.  His disposition was release to duty with no limitations.

	f.  On 3 April 2007, he was seen by medical personnel after he related loss of focus and concentration, making poor choices, and struggling remembering things.  He stated he had been experiencing headaches and dizziness.

	g.  On 4 April 2007, he was seen at the Opthalmology Clinic, Landstuhl Medical Center, Germany, in relation to his concussion.  He reported difficulty seeing clearly.  He was released to duty with no limitations.

	h.  On 5 April 2007, he was seen by medical personnel at Landstuhl for tendonitis rotator cuff, post-concussion syndrome, refractive error (myopia), astigmatism, vitreous floaters in the right eye, and cognitive disorder.  He was released to duty with unspecified work/duty limitations.

	i.  On 5 April 2007, he was seen at the Neurology Department, Landstuhl, for the above conditions.  Doctors determined his blurred vision was likely caused by eye strain, poor sleep, and mild stress.  He was released from this department with no limitations.

	j.  On 9 April 2007, he was again seen for the same conditions and he was released to duty with work/duty limitations of no airborne operations for 30 days.  He was also issued a temporary physical profile from 9 April to 9 May 2007 for post-concussion syndrome.

	k.  On 17 April 2007, he was seen for the above conditions and he was released with unspecified work/duty limitations due to post-concussion syndrome.  He was issued a temporary physical profile from 17 April to 17 May 2007.

	l.  On 16 May and 25 June 2007, he was seen at a medical clinic at Fort Bragg, NC, for the above conditions.  He was released to duty with no limitations.

	m.  On 11 July 2007, he was seen at Fort Bragg for the above conditions and he was again released with no limitations.  The medical provider indicated that according to the neurologist, his testing had improved but it was still abnormal.  He showed poor mathematical ability and displayed short-term memory loss.  His main issue was a partial loss of vision in one eye.  He indicated he would rather medically retire than face the possibility of MOS reclassification.

4.  The applicant's records show the following:

	a.  He received an annual DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the rating period 1 February 2006 through 31 January 2007 for his duties as an EOD team leader.  He passed the Army Physical Fitness Test (APFT) and met height and weight standards.  His rater rated his competence (duty proficiency, MOS competency) as "Excellent" and his other NCO values/responsibilities as "Success."  His rater rated his overall potential for promotion and/or service in positions of greater responsibility as "Fully Capable."  His senior rater rated his overall potential for promotion and/or service in positions of greater responsibility as "Superior."

	b.  He received a change-of-rater NCOER covering the rating period 1 February 2007 through 30 September 2007 for his duties as an EOD team leader.  He passed the APFT and met height and weight standards.  His rater rated his NCO values/responsibilities as "Success" and his overall potential for promotion and/or service in positions of greater responsibility as "Fully Capable." 
His senior rater rated his overall potential for promotion and/or service in positions of greater responsibility as "Superior."

	c.  He received an annual NCOER covering the rating period 10 October 2007 through 9 October 2008 for his duties as an EOD supervisor.  He passed the APFT and met height and weight standards.  His rater rated his NCO competence, leadership, and training as "Excellent" and his other values/
responsibilities as "Success."  His rater rated his overall potential for promotion and/or service in positions of greater responsibility as "Among the Best."  His senior rater rated his overall potential for promotion and/or service in positions of greater responsibility as "Superior."

5.  On 4 December 2008, he underwent a separation/enlistment physical at the Indian Head Center, Bethesda Medical Center, MD, for the purpose of separation from the Regular Army and subsequent enlistment in the Maryland Army National Guard (MDARNG).

6.  The medical indicated in item 77 (Summary of Defects and Diagnosis) of the applicant's DD Form 2808 (Report of Medical Examination) the entry "TBI from IED 2006, gets mild headaches."  He was assigned a physical profile (PULHES) of "111111," indicating he had no physical limitations and he was found fully qualified for separation and/or enlistment.

7.  There is no indication in his available records that at the time of his separation:

* he suffered from an injury, illness, or any medical condition that rendered him physically unfit or unable to perform the duties required by his grade or military specialty
* he was issued a permanent physical profile
* he suffered from a condition that would have warranted his entry into the Army Physical Disability Evaluation System (PDES)

8.  He was honorably discharged from active duty on 14 December 2008 by reason of having completed his required active service.  He completed 10 years, 9 months, and 12 days of active service.

9.  On 19 December 2008, he executed a 6-year enlistment in the MDARNG.  He was assigned to the 1st Battalion, 70th Regiment, Reisterstown, MD.

10.  The facts and circumstances surrounding his discharge from the ARNG are not available for review with this case.  However, his records contain a National Guard Bureau Form 22 (Report of Separation and Record of Service) that shows he was honorably discharged from the ARNG on 9 April 2009 in accordance with paragraph 8-35i(1)a of National Guard Regulation 600-200 (Enlisted Personnel Management).

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  It provides for medical evaluation boards 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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

12.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Paragraph 9-12 states that Reserve Component Soldiers with 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.

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

14.  National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of the ARNG and the ARNG of the United States enlisted Soldiers in the functional areas of classification and reclassification, personnel management, assignment and transfer (including interstate transfer), special duty assignment pay, enlisted separations, and the Command Sergeant Major Program.  Chapter 8 of the regulation in effect at the time (1 March 1997) provides for separation of enlisted Soldiers.

	a.  Paragraph 8-27 provides for the discharge of Soldiers medically unfit for retention standards of chapter 3, Army Regulation 40-501, from State ARNG and/or Reserve of the Army.  This regulation provides that if a commander suspects a Soldier may not be medically qualified for retention, he or she will direct the Soldier to present him or herself for a medical examination in accordance with Army Regulation 40-501.  If retention is not recommended, a request for discharge will be submitted to the State Adjutant General.

	b  Paragraph 8-35 of National Guard Regulation 600-200 provides for the separation/discharge from the State ARNG and/or Reserve of the Army.  This paragraph lists reasons, applicability, codes and board requirements for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both.  These reasons may be used for separation from the State ARNG only.

	c.  Paragraph 8-35i(1)(a) of National Guard Regulation 600-200 stipulates the separation of a Soldier for acts or patterns of misconduct under the Uniform Code of Military Justice, State Military Code, or similar laws.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was medically retired by reason of physical disability upon his release from active duty in December 2008.

2.  The purpose of the PDES is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system.

3.  The available evidence shows the applicant was involved in an IED blast in Iraq in October 2006.  He subsequently underwent various types of treatment at multiple treatment facilities for blurry vision and mild headaches.  Meanwhile, he continued to perform the duties required of his grade and military specialty.  Nowhere in his service records does it show he suffered an injury/wound or illness that rendered him physically unfit that warranted processing through the PDES.

4.  On the contrary, upon his discharge, his assessment was that of Soldier who was fit for duty and was able to perform his military duties.  He was judged to be medically fit for separation and subsequent enlistment in the ARNG.  This was further confirmed by his NCOER's from the date of his injury in October 2006 through the date of his discharge in December 2009 which clearly show his rater rated his performance successful or excellent and his overall potential as fully capable or among the best.  His senior rater rated his overall performance or potential as successful and superior.  Additionally, he enlisted in the ARNG after his discharge from active duty.  These are clear indicators that he was able to perform the duties required of his MOS and grade at the time of release from active service.

5.  It is possible that his condition may have worsened since his discharge from the Regular Army in December 2008.  However, the fact remains that there is no evidence in the available records and he did not provide any evidence that shows he was diagnosed with a medical condition that rendered him physically unfit or unable to perform the duties required by his grade or military specialty or that would have warranted his entry into the Army PDES.

6.  When identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

7.  In view of the lack of sufficient medical documents and the overall circumstances in this case, there is insufficient evidence to grant the 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 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)                                         AR20110021096



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021096



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1