IN THE CASE OF:	   

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110022838 


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, in effect, correction of his record to show he received a medical retirement.

2.  The applicant states:

	a.  He should have been medically retired by the Wisconsin Army National Guard (WIARNG).  He was severely wounded by enemy forces on 24 July 2006.  He was medically evacuated from Iraq to Germany and then to Walter Reed Army Medical Center (WRAMC), Washington, D.C.  He received numerous surgeries and he was hospitalized until October 2006.  He was discharged from active duty on 10 November 2006.  The reason for separation was completion of required active service when it should have been a medical retirement.

	b.  He was rated as 100 percent (%) totally and permanently disabled by the Department of Veterans Affairs (VA).  He received service-connected disability for 21 different disabilities and/or injuries due to being wounded by enemy forces.  For 2 years he asked his unit readiness noncommissioned officer why he was not being retired due to his severe wounds but never received a straight answer.  He feels it is a miscarriage of justice that he was discharged for completion of required service rather than being medically retired.

3.  The applicant provides:

* an undated Line of Duty (LOD) request


* an LOD Investigation (LODI), dated 8 September 2006
* a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 September 2006
* 3 Standard Forms (SF) 600 (Chronological Record of Medical Care), dated 8 - 18 August 2006
* 13 photographs of injuries/treatment
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 November 2006
* a DD Form 215 (Correction of DD Form 214), dated 19 November 2009
* Orders 102-502, issued by the Joint Force Headquarters Wisconsin, WIARNG, Madison, WI, dated 12 April 2007
* Orders 312-519, issued by the same headquarters, dated 7 November 2008

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the WIARNG on 24 January 1998 and held the military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained while serving in the WIARNG was staff sergeant (SSG)/E-6.

3.  On 6 June 2005, he was ordered to active duty as a member of his ARNG unit in support of Operation Iraqi Freedom (OIF).  He subsequently served in Kuwait/Iraq from 17 August 2005 to 26 July 2006.

4.  He provided an undated request for an LODI that states he was injured as a result of an Improvised Explosive Device (IED) blast in Iraq on 24 July 2006.  His diagnosis included pyogenic granuloma, stenosis of his external ear canal, and optic neuritis.


5.  Orders Number A-08-620929, issued by the U.S. Army Human Resources Command (HRC), dated 10 August 2006, ordered his retention on active duty as a medical holdover for medical retention processing and completion of his medical care and treatment at WRAMC for a period of 179 days, ending on
3 February 2007.

6.  He provided three SFs 600, dated between 8 - 18 August 2006, that show he was seen on an outpatient basis in the Ophthalmology and Otolaryngology clinics at WRAMC.  His medical forms show the following maladies:

* Acquired stenosis of the external ear canal
* Pyogenic Granuloma
* Muscle weakness
* Joint stiffness of the shoulder
* Subconjunctive hemorrhage
* Facial injury
* Papilledema
* Optic neuritis
* Open wound of the upper extremity
* Dysphagia

7.  He provided an LODI memorandum/determination and a DA Form 2173, dated 8 September 2006, that shows his injuries were determined to be in the LOD.

8.  He provided several photographs that show the interior and exterior condition of his High-Mobility Multipurpose Wheeled Vehicle (HMMWV) after the IED blast.  These photographs also contain pictures taken during his surgical procedures and recovery.

9.  His record does not contain any medical documentation or medical records from WRAMC showing his physicians determined he was unfit to return to military duty.

10.  His record contains a memorandum from HRC, dated 26 September 2006, to the commander of the Transition Center, Fort McCoy, WI.  The memorandum stated "your request for Early Release from Active Duty (REFRAD) for [the applicant] was reviewed in accordance with Army Regulation 635-200 (Enlisted Separations), chapter 4, and is approved.  The [applicant] will be released no later than 27 October 2006."


11.  His record contains Orders 290-063, issued by Headquarters, Fort McCoy, WI, dated 17 October 2006, that REFRAD him, not by reasons of physical disability, and assigned to the WIARNG effective 10 November 2006.

12.  On 10 November 2006, he was honorably REFRAD under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.  He was transferred back to the WIARNG.  On 19 November 2009, a
DD Form 215 was issued adding the Purple Heart to his DD Form 214 for the period ending 10 November 2006.

13.  He provided Orders 102-502, dated 12 April 2007, that promoted him to SSG/E-6 with a date of rank of 9 February 2007.

14.  His service record contains a signed Declination of Fort Knox Medical Evaluation Board (MEB), dated 25 September 2008.  He acknowledged:

* he understood he made the decision to waive his right to an MEB, and by doing so he was waiving his right to an Active Duty Board that may determine his eligibility for a physical disability rating through the military
* he understood that by waiving this right, he would be discharged from the WIARNG and he would no longer be eligible to receive TRICARE Select coverage
* he acknowledged his understanding that if he was medically retired, he would not be eligible for retirement pay or TRICARE until age 60 and that he could continue to receive medical care from the VA (if necessary) for his injuries, which were documented by an LODI

15.  His service record contains a memorandum from the Deputy State Surgeon of the WIARNG, Health Systems Services, Madison, WI, dated 6 October 2008.  This memorandum stated on 3 October 2008, the State Surgeon reviewed the applicant's medical records and documentation for Traumatic Brain Injury (TBI) and PTSD and determined the applicant did not meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-30j and 3-33c.  Additionally, the applicant did not request an MEB; therefore, he should be processed for a medical discharge.

16.  His record contains two DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 December 2006 through
31 October 2007 and 31 October 2007 through 30 October 2008, rating his performance of duties as an anti-armor section sergeant.


	a.  The first report shows he passed his Army Physical Fitness Test (APFT) on 7 October 2007 and his rater rated him as successful in all values and NCO responsibilities, fully capable for overall potential, and successful (3) in his overall performance.  His senior rater rated him as superior (2) for overall potential.

	b.  The second report shows he was unable to take the APFT due to a physical profile.  His rater commented that the applicant was on a permanent profile for multiple injuries he incurred during his deployment in support of OIF.  His rater rated him as successful in all values and NCO responsibilities, fully capable for overall potential, and successful (3) in his overall performance.  His senior rater rated him as superior (2) for overall potential.

17.  He provided an undated medical assessment/evaluation.  The therapist who prepared the assessment notes the applicant was referred by the Brown County Veterans Office and was seen on 14 March 2008, 20 March 2008, and 28 March 2008.  He was diagnosed with:

* Axis I – PTSD Severe-Chronic
* Axis II – None
* Axis III – Vestibular Disorder, Heads, Jaw, Shoulder, Back Injuries from IED explosion
* Axis IV – None
* Global Assessment of Functioning (GAF) – 45

18.  His record contains a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that shows the applicant was honorably discharged from the WIARNG on 6 November 2008.  The authority and reason for separation was listed as National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-35I(8), by reason of being medically unfit for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness).

19.  He provided a VA rating decision, dated 24 March 2009, that shows the following ratings for service-connected injuries incurred in combat:

* Status post mandible fractures with loss of structure of the right body of the mandible, impairment of the jaw function, and temporomandibular disorder (also claimed as broken jaw and facial fractures with residual shrapnel) - 50%
* Cognitive disorder, not otherwise specified, mild cognitive disorder due to traumatic brain injury (TBI), chronic PTSD, panic disorder, not otherwise specified - 50%
* Cranial nerve damage (right trigeminal nerve) and temporal regional headaches (also claimed as facial paralysis, no feeling on right side) - 30%
* Strain of the muscles of the pectoral girdle with left shoulder limitation of motion (claimed as chest, sternum, and left shoulder conditions) (nondominant) associated with ligamentous separation of the xiphoid (claimed as rib pain) - 20%
* Patellofemoral syndrome, left knee (claimed as knee pain) - 10%
* Patellofemoral syndrome, right knee (claimed as knee pain) - 10%
* Contusion of the cervical spinal cord (claimed as neck pain and tingling hands) - 10%
* Strain of the thoracic spine (claimed as back pain) - 10%
* Through and through shrapnel injury of the right upper arm (dominant extremity) - 10%
* Right ear hearing loss - 10%
* Benign paroxysmal positional vertigo (BPPV) with underlying weakness of the right side vestibular nerve (claimed as nerve damage, vestibular disorder, dizziness and vertigo) - 10%
* Tinnitus - 10%
* Nasal obstruction - 10%
* Burn injury scar of the anterior neck, 1 1/2 inches by 1 inch - 10%
* Scar at the right angle of the mandible, 3 centimeters by 1 centimeter - 10%
* Scar anterior to the right tragus, 2 centimeters by 1 centimeter - 10%
* Tracheostomy scar, 1 3/8th inches by 1/4th inch - 10%
* Ulnar nerve damage, right upper extremity, residual of shrapnel injury to the right upper arm (dominant extremity) - 10%
* Loss of 4 teeth due to trauma - 10%
* Ligamentous separation of the xiphoid (claimed as rib pain) - 0%
* Scar on the right chin, one and a half centimeters - 0%

20.  National Guard Regulation 600-200, paragraph 8-35I (Separation/Discharge from State ARNG and/or Reserve of the Army) in effect at the time, states commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501.  Commanders who do not recommend retention will request the Soldier’s discharge.

21.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the 


member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, HRC, is responsible for administering the Army PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB, receive a permanent physical profile rating of P3 or P4 and are referred by a Military Occupational Specialty Medical Retention Board (MMRB); are command-referred for a fitness-for-duty medical examination; or are referred by the Commander, HRC.

	b.  The PDES assessment process involves two distinct stages – the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.

	c.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based on disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

22.  Army Regulation 635-40 establishes the PDES.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

23.  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 (VASRD).  Ratings can range from 0% to 100% rising in increments of 10%.

	a.  Paragraph 3–30j (Neurological disorders) states there will be cause for an MEB for any other neurologic conditions, TBI or other etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, uncoordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty.  The diagnosis must include a minimum psychiatric evaluation of Axis I, II, and III.

	b.  Paragraph 3–33c (Anxiety, somatoform, or dissociative disorders) states there will be cause for an MEB if there is a persistence or recurrence of symptoms resulting in interference with effective military performance.

24.  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%.  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 at less than 30%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the ARNG between 24 January 1998 and 
6 November 2008.  He was mobilized on 6 June 2006 and served in Kuwait/Iraq from 17 August 2005 to 26 July 2007.  He was extended on active duty to receive maximum medical care for injuries he sustained during his mobilization.  He was ultimately released from active duty on 10 November 2006 and he was returned to his ARNG unit. 

2.  There is no evidence in his service records and he provides insufficient evidence to show that at the time of his release from active duty the medical authorities at WRAMC found him physically unfit to perform the duties require of his grade and military specialty.  His DD Form 214 honorably released him from active duty, not by reasons of physical disability and returned him to his unit in the WIARNG.

3.  The evidence of record shows that after his release from active duty he performed the duties of his infantry MOS extremely well.  This is evident in his receipt of two outstanding NCOERs which rated him superior in overall potential.   


Additionally, his success in his ability to perform the duties of his MOS is further reflected in his promotion from sergeant/E-5 to staff sergeant/E-6.  He would not have been promoted if he was incapable of performing successfully in his MOS.

4.  He received a physical profile at some point between October 2007 and October 2008.  This profile prohibited him from participating in the APFT.  Further, it is clear his commander in the WIARNG suspected he was not medically qualified for retention in the ARNG and directed he complete a full medical examination.  The results of this medical examination were not made available; however, it is evident he was found medically unfit based on medical issues which included TBI and PTSD.

5.  The evidence of record confirms he was recommended for and given the opportunity to undergo an MEB; however, he signed a declination statement, wherein he indicated he did not wish to undergo an MEB.

6.  Medical retirement from military service requires the service member to enter the PDES and undergo an MEB and then a PEB.  The PEB must issue a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  Additionally, in order to receive a physical disability retirement the PEB must have granted them a disability rating of at least 30%.

7.  When he waived the MEB, the first step in the process of establishing disability, he rendered himself ineligible to be evaluated by a PEB where he could have been granted a 30% or greater disability rating and possible medical retirement.

8.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110022838



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ABCMR Record of Proceedings (cont)                                         AR20110022838



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