IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120004332 


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’s request, statements, and supporting documents are submitted through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier petition to the Board requesting medical discharge/retirement with back pay and associated allowances.

2.  Counsel states the Army bureaucracy failed the applicant who clearly should have been processed for disability retirement/separation through the Physical Disability Evaluation System (PDES) prior to being released from active duty (REFRAD) on 31 May 2006.

3.  Counsel provides a 7-page statement and the exhibits identified therein in support of the request.

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 AR201000016467 on 3 March 2011.

2.  During the original review of the case, the Board found the applicant had no diagnosed unfitting conditions at the time of his REFRAD that required processing through the PDES and, as a result, there was no basis to grant the applicant's requested relief.

3.  The applicant, through counsel, argues he now suffers from a traumatic brain injury (TBI) resulting from exposure to nine improvised explosive device (IED) explosions while serving in Iraq, the most serious of which was on 2 July 2005, and has since been treated for migraine headaches which occur two to three times a week.  He further states the applicant has been awarded service connection from the Department of Veterans Affairs (VA) for the following conditions at the percentage ratings indicated:

* right shoulder tendinitis, 10 percent
* post-concussion syndrome with mild memory loss (residuals of TBI), 10 percent
* migraines, 10 percent (VA)
* PTSD, 100 percent

4.  Counsel states he is providing a letter to the Board from the licensed psychologist who has been treating the applicant.  He indicates the applicant's diagnosis from this psychologist includes a history of TBI and he outlines the doctor's summary of her treatment of the applicant.

5.  The letter to the Board from the licensed psychologist provided by counsel confirms she has been seeing the applicant since 5 November 2010 for treatment related to PTSD.  She states his diagnosis includes a history of TBI and, as such, his treatment has been individualized to accommodate memory loss.  She indicates the applicant's prognosis related to PTSD is unknown.  

6.  New evidence/argument is provided that warrants reconsideration.

7.  The applicant's record shows he enlisted in the Georgia Army National Guard (GAARNG) on 17 May 1995.  He completed initial active duty for training on 19 January 1996 and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).

8.  On 6 December 2004 while still serving in the GAARNG, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  He served in Kuwait/Iraq from 15 May 2005 through 20 April 2006.

9.  On 31 May 2006, the applicant was honorably REFRAD upon completion of required active service.  He completed 1 year, 5 months, and 25 days of net active service during this period.  The record shows the applicant was awarded the Purple Heart for wounds received on 2 July 2005 and the Combat Infantryman Badge for participating in ground operations under hostile fire in Iraq on 2 July 2005.

10.  The applicant's record is void of any medical treatment records.  An excerpt from his military medical record provided by the applicant shows he received medical treatment on 3 July 2005 for pain in his neck and shoulder due to injuries sustained from an IED on 2 July 2005.

11.  The applicant continued to serve satisfactorily in the GAARNG until 16 May 2008 at which time he was honorably discharged from the GAARNG by reason of expiration of his term of service.

12.  The applicant provides VA Rating Decisions, dated 6 February 2008 and 18 May 2009, which show he has been granted service connection for the conditions already outlined in the original Board Record of Proceedings and that he was denied service connection for pancreatitis which was not found to be related to his military service.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's 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.

14.  Paragraph 3-1 of Army Regulation 635-40 outlines the standards of unfitness because of physical disability.  It states 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.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

15.  Title 38, U.S. Code, sections 1110 and 1131, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for medical retirement through counsel and the supporting documents submitted have again been carefully considered.  Other than the supporting letter provided by the licensed psychologist treating the applicant, all the argument and evidence submitted by counsel with this request was considered in some form during the original review of the case.  A review of the new evidence and argument fail to provide a compelling evidentiary basis that would support revising the original decision of the Board.

2.  There is no evidence of record or independent evidence provided by the applicant through his counsel that would support a conclusion the applicant's service-connected medical conditions rendered him unfit for further service and supported his processing through the PDES at the time of his REFRAD on 31 May 2006.  This is supported by his continued satisfactory performance of duty while remaining on active duty through the date of his REFRAD at the completion of his required active duty service and in the GAARNG through his honorable discharge on 16 May 2008.

3.  Absent evidence to the contrary, there is a presumption the applicant's separation processing was accomplished in accordance with the applicable regulation and that he received all required medical examinations and screening necessary prior to his REFRAD in 2006.

4.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based upon the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the conditions(s) exist(s) at the time of his or her processing through the PDES.

5.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA's ratings are based upon an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.  The VA is the appropriate agency to provide compensation and treatment for service-connected conditions that were not found to be unfitting for further military service at the time of a member's separation, retirement, or discharge.

6.  In view of the foregoing, there remains an insufficient evidentiary basis to support amendment of the original Board decision and/or 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 to amend the decision of the ABCMR set forth in Docket Number AR201000016467, dated 3 March 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)                                         AR20120004332



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ABCMR Record of Proceedings (cont)                                         AR20120004332



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