IN THE CASE OF:
BOARD DATE: 7 June 2012
DOCKET NUMBER: AR20110022376
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 requests for award of the Purple Heart and a medical discharge.
2. The applicant states:
a. The new evidence is a Department of Veterans Affairs (VA) rating decision for service-connected disability for lumbar strain (10 percent) which was granted on 27 January 2009.
b. He receives treatment from his primary care doctor at the McClellan Air Force Base (AFB) VA in Sacramento, CA, and he receives pain management treatment at the Mather AFB VA in Sacramento, CA. All doctors are aware and confirm the problems he is experiencing since his injury in Iraq are caused from a concussion blast resulting from an improvised explosive device (IED) attack that occurred while performing combat operations.
c. His injury was incurred in the line of duty while performing combat operations in support of Operation Iraqi Freedom. Because he has this injury that prevents him from performing airborne operations, he asks that his airborne status pay be returned to him. It was taken from him because he was discharged. When he sought treatment and evaluation at the Joel Medical Clinic at Fort Bragg, NC, he never received a magnetic resonance image (MRI) showing he had a back injury.
3. The applicant provides:
* VA rating decision, dated 27 January 2009
* medical record progress notes, dated 10 June 2011
* letter from his VA physician, dated 3 October 2011
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 AR20100010526 on 28 October 2010.
2. The ABCMR records show the applicant previously requested reconsideration of ABCMR Docket Number AR20090000308 for award of the Purple Heart. His previous request for reconsideration was acted upon in ABCMR Docket Number AR20100010526 on 28 October 2010. This decision on his request for reconsideration was the final administrative action taken by the Secretary of the Army. There is no further action contemplated by the ABCMR since he is not eligible for further reconsideration by this Board. Therefore, this portion of his request for award of the Purple Heart will not be discussed further in this Record of Proceedings.
3. He provides a VA rating decision, a letter from a VA physician, and medical record progress notes which are new evidence that warrant consideration by the Board.
4. The VA rating decision, dated 27 January 2009, shows he was granted service-connected disability compensation for:
* post-traumatic stress disorder and depressive disorder not otherwise specified (30 percent)
* tinnitus (10 percent)
* lumbar strain (10 percent)
* left shoulder degenerative changes and strain (0 percent)
* right shoulder strain (0 percent)
* left sensorineural hearing loss (0 percent)
* right wrist ganglion cyst (0 percent)
5. He provides a letter from a VA physician, dated 3 October 2011, who states:
* the applicant has been a patient since October 2008
* during this time he has consistently complained of lower back pain that makes it difficult for him to stand or sit for extended periods of time and affects the quality of his sleep at night
* his back pain is exacerbated daily by normal activities and he has experienced only moderate temporary relief with multiple treatment modalities
* he reported his back pain first began a short time after an IED explosion damaged his vehicle in May 2007
* although he did not complain of pain immediately, he sought treatment at the first opportunity he had and complained of back pain multiple times while still in theater
* he underwent an MRI in October 2009 that showed axial findings
* at L3-L4 there is a moderate broad-based disc bulge which narrows the central canal without stenosis it is also causing mild left neural foraminal stenosis
* at L4-L5 there is a mild diffuse disc bulge but no central canal or neural foraminal stenosis
* at L5-S1 there is no central canal or neuroforaminal stenosis
* without any other known back injury, it is more likely than not that an injury he received as a result of the IED explosion in May 2007 is the cause of his degenerative disc disease and the pain he experiences today
6. He also provides medical record progress notes, dated 10 June 2011, which show he was treated for chronic back pain due to lumbar disc disease.
7. The applicant enlisted in the Regular Army on 9 January 2006. He completed training and was awarded military occupational specialty 92R (parachute rigger). He served in Iraq from 27 March 2007 to 30 April 2008. On 29 August 2008, he was released from active duty for completion of required active service.
8. There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to his discharge on 29 August 2008.
9. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 4 provides for the discharge or release from active duty upon termination of enlistment and other periods of active duty or active duty for training.
10. 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. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.
11. 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/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.
12. Title 38, U.S. Code, sections 310 and 331, permit 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his back injury was incurred in the line of duty while performing combat operations in support of Operation Iraqi Freedom.
2. The documentation provided by the applicant was carefully considered. However, the evidence shows he was honorably released from active duty at the expiration of his term of service on 29 August 2008. There is no evidence of record which shows he was diagnosed with any mental or medical condition prior to his separation.
3. There is insufficient evidence to show the applicant was unable to perform his duties or that he was eligible for physical disability processing prior to his release from active duty on 29 August 2008. Therefore, there is no basis for granting the applicant's request for a medical discharge.
4. The rating action by the VA does not demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.
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 to amend the decision of the ABCMR set forth in Docket Number AR20100010526, dated 28 October 2010.
____________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) AR20110022376
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ABCMR Record of Proceedings (cont) AR20110022376
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