IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120002819 


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:

	a.  a medical retirement in rank/pay grade sergeant/E-5 and

	b.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show additional deployments.

2.  The applicant states:

* his DD Form 214 is missing deployments
* he received nonjudicial punishment (NJP) for sleeping on duty and no formal investigation was ever done
* his mental status or possible sleep apnea were never investigated
* he was diagnosed with sleep apnea, post-traumatic stress disorder (PTSD), and a traumatic brain injury (TBI)
* he was told he had no right to a medical evaluation board (MEB) or physical evaluation board (PEB) while he was still undergoing TBI analysis before his expiration of term of service
* he should have been placed on medical hold at a minimum

3.  The applicant provides:

* DD Form 214
* discharge orders
* letters from a neurologist, dated 5 February 2010 and 12 April 2010
* letter from a social worker, dated 10 December 2009
* medical records
* service personnel records
* Department of Veterans Affairs (VA) documentation
* Purple Heart orders
 
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 March 2002.  He completed his training and he was awarded military occupational specialty (MOS) 91K (Armament Repairer).  He served in Kosovo from 14 May 2002 to 14 November 2002.  He attained the rank of sergeant/E-5.  

2.  The Defense Finance and Accounting Service (DFAS) confirmed he received hostile fire/imminent danger pay (HF/IDP) and combat zone tax exclusion (CZTE) for:

* Kuwait/Iraq from 11 February 2004 to 15 February 2005
* Kuwait/Iraq from 17 October 2005 to 26 July 2006

3.  Medical records provided by the applicant indicate he was wounded during a mortar attack on 9 April 2004 in Iraq.  He sustained shrapnel wounds to his back and scalp/head.

4.  He arrived in Iraq on 6 November 2007.  

5.  In February 2008, NJP was imposed against the applicant for sleeping on his sentinel post in Iraq.  He was reduced to E-4/specialist.

6.  He departed Iraq on 27 September 2008.

7.  He underwent a neuropsychological report on 18/19 August 2009.  The report indicated he was on full duty in his assigned MOS of armament repairer.  The test concluded his intellectual functioning and memory were normal.  He was emotionally distraught with multiple physical complaints and his physical, cognitive, and emotional symptoms were interrelated.  His negative emotional states were focused on the Army and perceived injustices.  It stated cognitive improvement was a reasonable expectation if his emotional symptoms could be stabilized.  It also stated he had chosen to discontinue medication that could have improved his symptoms.  He was diagnosed with a cognitive disorder.

8.  His Enlisted Record Brief, dated 2 October 2009, shows his physical profile was 111111.

9.  On 7 January 2010, he was honorably discharged at the completion of required active service.  He completed 7 years, 9 months, and 11 days of creditable active service.

10.  Item 18 (Remarks) of his DD Form 214 shows he served in:

* Kosovo from 14 May to 14 November 2002
* Iraq from 6 November 2007 to 27 September 2008

11.  Medical records show he was treated for numerous conditions which include hearing loss, PTSD, adjustment disorder with anxiety and depressed mood, and sleep disorders.  There is nothing in the records that documents a head injury.

12.  He provided a letter from a social worker, dated 10 December 2009, who states:

* the applicant has been in treatment since June 2009
* he suffers from moderate to severe symptoms of PTSD from his first deployment in Iraq
* he was hit with shrapnel during his first deployment in Iraq  
* he wears hearing aids in both ears
* in 2008 his vehicle was hit by an improvised explosive device

13.  He provided letters from an Air Force neurologist, dated 5 February and 12 April 2010, who states:

* the applicant is under the care of the Neurology Clinic at Wilford Hall and Brooke Army Medical Centers in San Antonio, TX
* he has been treated in the neurology clinic for 6 months
* he underwent neuropsychologicial testing and a computed tomography (CT) scan and a magnetic resonance imaging (MRI)
of his brain demonstrated numerous focal abnormalities in several regions of his brain most consistent with chronic changes from TBI
* he suffers from considerable impulsivity, anxiety, and cognitive impairments from his combination of TBI and PTSD
* he was separated from the service prior to completion of his evaluation
* he was discharged from the Army prior to this diagnosis, he did not undergo an MEB and he requires continued treatment for TBI

14.  He provided VA documentation which shows he was granted service-connected compensation for:

* TBI with post concussive headaches (40%)
* PTSD cognitive disorder (70%)
* obstructive sleep apnea (50%)
* tinnitus (10%)

15.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of which duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):

* P – physical capacity or stamina
* U – upper extremities
* L – lower extremities
* H – hearing and ears
* E – eyes
* S – psychiatric

16.  Numerical designator "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

17.  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 office, rank, grade, or rating because of disability incurred while entitled to basic pay.

18.  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%.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty 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 was the proximate cause of performing active duty or inactive duty training.

20.  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.

21.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The regulation provides that for Item 18, for an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement "SERVICE IN (name of country deployed) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 is missing deployments has merit.  DFAS confirmed he served in Kuwait/Iraq from 11 February 2004 to 15 February 2005 and 17 October 2005 to 26 July 2006.  Therefore, his DD Form 214 should be corrected to show these two additional deployments.  

2.  He contends he should have been medically retired for his mental status or sleep apnea rather than honorably discharged.  However, he provides no evidence to show these conditions rendered him unfit to perform his military duties.  Throughout his medical record there is no discussion of an MEB while he was serving on active duty.  He was never referred for physical disability processing and his physical profile of 111111 at the time of his separation indicates he was fit for duty.

3.  The applicant provided a letter from an Air Force neurologist, dated 5 February 2010 (1 month after his separation), stating the applicant should be reinstated on active duty to perform an MEB.  The neurologist does not give any reason for an MEB other than the presence of a diagnosis of TBI.  A separate letter from the same neurologist, dated 12 April 2010, stated the applicant is unemployable because he reported losing a job since separation "because of his impulsivity and emotionality."  This letter also discusses two scenarios where the applicant was exposed to blasts and opines that the one in 2004 where he had altered consciousness and a ruptured ear drum likely caused his TBI.

4.  Clinic notes involving the exposure to a mortar blast in 2004 and an IED in 2008 shows the applicant did not have a head injury.  Later clinic notes during the applicant's last year of service repeat blast scenarios that were provided by the applicant but are contradicted by the treatment record at the time of the blast.  In 2004, the applicant received some small mortar fragments in his skin between his shoulder blades.  They were superficial and some were removed in the clinic.  A few remain and are still seen on x-ray.  They did not penetrate beyond the skin and, in fact, they are noted to be in the outer portion of the skin.

5.  In 2009, the applicant told his neurologist, neuropsychologist, and others that he was hit in the back of the neck by shrapnel and he had altered consciousness and a ruptured ear drum.  In fact, the record shows he denied loss of consciousness; he had only tiny, superficial fragments in his back; and his ear drum was not ruptured.  He was not thrown down by the blast and did not know he received superficial shrapnel wounds until a friend noticed some bleeding.  The morning after the mortar incident he went to the clinic complaining of left ear fullness and decreased hearing.  The ear drum was visualized and was intact.  Years later the applicant did have a perforated ear drum with onset of symptoms while he was in the shower.  It healed without sequelae (an aftereffect of disease, condition, or injury) and his hearing was normal.

6.  In 2008, the applicant was the gunner in an MRAP when an IED exploded, damaging the left front wheel rim.  The record shows no one in the MRAP was injured.  The applicant did not strike his head and did not have a loss of consciousness.

7.  The applicant underwent TBI testing in January 2009.  It does not indicate that he had any TBI diagnosis or symptoms, but the applicant continued to complain of memory problems.  In August 2009, a comprehensive neuropsychological evaluation conducted several months prior to his separation report indicated he was serving on full duty in his assigned MOS of armament repairer.  Although he was emotionally distraught with multiple physical complaints, his physical, cognitive, and emotional symptoms were interrelated and his negative emotional states were focused on the Army and perceived injustices.  It stated cognitive improvement was a reasonable expectation if his emotional symptoms could be stabilized, but it also stated the applicant had chosen to discontinue medication that could have improved his symptoms.

8.  During the applicant's last year of duty he was seen regularly by psychiatry staff.  The appointments are documented, but the applicant did not provide the details.  The problem list indicates the applicant had PTSD, although it did not appear to be active.  At times he denied PTSD symptoms when questioned.  He was taking medications at times but was often not compliant.  At least one clinic note states he refused medications.  He was also diagnosed with an adjustment disorder, although the specifics are not provided.  There is no mention of any need for an MEB and there were no limitations imposed by his physical profile.

9.  The Air Force neurologist's opinion appears to be based on an erroneous history of head injuries that is contradicted by the record.  There is nothing in the clinical record that documents or is suggestive of a head injury.  The radiologist reading the MRI cites nonspecific findings that are common to a host of disorders including idiopathic (unknown cause), degenerative diseases, West Nile Virus, and trauma.  He noted the history of head injuries (provided by the applicant, not the clinical record) and concluded these non-specific findings are likely due to trauma.  Without an erroneous history of head trauma, it appears the MRI report would have been read significantly different.  

10.  There is no evidence to show the applicant was unable to perform his duties.  A June 2010 developmental counseling form states, "your duty performance has been good," "you have been teaching and mentoring the new Soldiers while we work," and "you have demonstrated great responsibility with the task you have been given."  It is clear that the applicant functioned well in his MOS until his separation.  Therefore, he was appropriately denied an MEB/PEB and there is insufficient evidence to show his medical retirement in pay grade E-5 was warranted.  

11.  It is acknowledged the VA has granted him a 70% disability rating for PTSD cognitive disorder, a 50% disability rating for obstructive sleep apnea, and a 40% disability rating for TBI with post-concussive headaches.  However, the rating action by the VA does not necessarily 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 

____x___  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the entries "SERVICE IN KUWAIT/IRAQ FROM 20040211-20050215" and "SERVICE IN KUWAIT/IRAQ FROM 20051017-20060726" to item 18 of his DD Form 214. 

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his medical retirement in pay grade E-5.  



      ____________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)                                         AR20120002819



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ABCMR Record of Proceedings (cont)                                         AR20120002819



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