BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120007778 


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 to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's record be corrected to show he was found medically unfit for duty, granted a physical disability retirement, and provided retroactive pay. 

2.  Counsel states the applicant was wounded in 2004 when his vehicle was hit by an improvised explosive device (IED).  He was not afforded a Medical Evaluation Board (MEB) although he was treated for a number of problems while on active duty.  Initially, in 2011, he was granted a disability rating by the Department of Veterans Affairs (VA), which was within 1 year of his date of release from active duty.  The VA granted him a 90 percent disability rating for post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), lumbar strain, tinnitus, and post-traumatic headaches.  The applicant clearly warranted an MEB at the time of discharge.  The applicant appears to have slipped through the cracks 

3.  Counsel provides copies of the applicant's service medical records, VA medical records, and his 2011 VA rating decision.  


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.  On 21 February 1998, the applicant enlisted in the delayed entry program.  On 1 September 1998, he enlisted in the Regular Army, completed the training requirements, and was awarded military occupational specialty 11B (Infantryman). 

3.  The service medical records provided by counsel contain the following facts, findings, and information. 

     a.  On 30 August 1999, the applicant sustained acoustic trauma when a mortar round exploded near him.  He was treated for bilateral tinnitus and given ear protection. 

     b.  Between August 1999 and 2004, the applicant was also treated for several conditions including vision correction, warts, rashes, upper respiratory infections, the flu, and a right knee problem. 

     c.  In April 2004, he was treated for constant low back pain (LBP) for 2 months and in June 2004 he was medically cleared for deployment.

     d.  The only medical record that is available for the date of the reported IED incident is a record that shows the applicant was treated for a cold, and this record is dated 3 November 2004.

     e.  On 12 December 2004 and again on 24 January 2005, he was treated for LBP.  He reported the pain was constant but on these dates it had worsened.


     f.  The applicant's post-deployment physical, dated 3 August 2005, shows the applicant complained of several problems and was referred for additional evaluation for a symptomatic TBI and LBP.

     g.  A Fort Carson, Colorado TBI Questionnaire indicates the applicant was involved in an incident, on 3 November 2004, when his vehicle was hit by two IEDs.  The applicant reported having headaches, dizziness, memory problems, ringing in the ears, and sleep problems.  Right after the incident, he reported that he still has headaches, memory, and sleep problems. 

4.  A Chronological Record of Medical Care, dated 16 August 2005, shows the applicant had mild post-concussion syndrome, lumbago (an umbrella term for LBP), insomnia, and acute PTSD.

5.  The applicant's last Noncommissioned Officer Evaluation Report (NCOER), ending in August 2005, shows he executed over 250 combat missions with outstanding results.  He also consistently scored 300 on the Army Physical Fitness Test and was rated among the best.

6.  At an undocumented point in 2005, but prior to separation, the applicant changed his last name from J____ to W____.

7.  The applicant was honorably discharged on 26 November 2005.  His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) provides the following:

* involuntarily extended on active duty (Stop Loss) for 396 days
* service in Kuwait/Iraq from 31 July 2004 through 17 March 2005
* his narrative reason for separation is listed as completion of required active service

8.  On 8 December 2011, the U.S. Army Human Resources Command awarded the applicant the Purple Heart for injuries sustained on 3 November 2004 while assigned to Company B, 1st Battalion, 506th Infantry Regiment (Air Assault), United States Forces-Iraq.

9.  Prior to discharge, the applicant applied for VA benefits.  He has undergone several VA examinations and evaluations with ratings as follows:







Condition








Dates
1/06
8/06
8/07
3/08
5/09
12/09
3/10
7/11
PTSD
30%
NA
30%
50%
NA
NA
NA
50%
TBI
10%
NA
10%
10%
40%
NA
NA
40%
LBP/Lumbar Strain
10%
NA
NA
NA
NA
NA
NA
20%
Tinnitus
10%
NA
NA
NA
NA
NA
NA
10%
Rosacea
NA
60%
NA
60%
0%
0%
NA
0%
Post-Traumatic Headaches
NA
NA
NA
NA
10%
NA
NA
10%
Right Knee
NA
NA
NA
NA
NA
NA
10%
10%
Left Knee
NA
NA
NA
NA
NA
NA
10%
10%
*NA-Not Addressed








10.  Title 10, U.S. Code (USC), 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.

11.  Title 38, USC, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically 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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), provides that:

	a.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and he can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 

	b.  When a member is being separated by reason other than physical disability, their continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that they were unable to perform their duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  On behalf of the applicant, counsel requests correction of the applicant's record to show he was medically unfit for duty, granted a physical disability retirement, and retroactive pay.

2.  The award of VA compensation does not mandate changing a discharge, nor does it demonstrate an inequity in a military disability rating.  The VA operates under its own policies and regulations and may determine that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find an individual physically unfit before the individual can be medically retired or separated.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

3.  The applicant's current VA disability rating has little bearing on his medical condition as it was at the time of his separation and does nothing to overcome the presumption of fitness.

4.  The record does not contain any evidence and the applicant and/or counsel have not provided any evidence that shows the applicant was unable to perform the duties of his office, rank, grade or rating at the time of discharge, or that his service was interrupted as a result of a physical disability.  In fact, his August 2005 NCOER indicates he was performing his duties quite well.

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)                                         AR20120007778



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ABCMR Record of Proceedings (cont)                                         AR20120007778



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