BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120010582 


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 the Army Board for Correction of Military Records (ABCMR) decision denying him a discharge for medical reasons.

2.  The applicant states he was seriously injured on 9 August 2009 and he received a traumatic brain injury (TBI) as a result.  He was never given the option of a medical evaluation board (MEB).  The physician who gave him his Phase II physical indicated to him that an MEB should have taken place.  He is still suffering from his injuries with memory loss and severe headaches.  He is unable to work now and he may never be able to.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 7 May 2010
* Enlisted Record Brief
* service medical records from 12 July 2007 to 10 February 2010
* a Department of Veterans Affairs (VA) Regional Office (VARO), Winston-Salem, NC, Rating Decision, dated 3 November 2010
* a VA award letter from VARO Winston-Salem, dated 4 November 2010
* Progress Notes from VA Medical Center (VAMC), St. Louis, MO, dated
1 November 2011
* a Notice of Decision from the Social Security Administration (SSA), dated 3 April 2012
* two pages from his DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States)
* DA Form 2166-8 (NCO (noncommissioned officer) Evaluation Report) (NCOER) for the period 1 May 2009 to 28 March 2010

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 AR20110014866, on 22 February 2012.

2.  His service medical records from 12 July 2007 to 10 February 2010, the Progress Notes from the VA, and the SSA Notice of Decision are new evidence that warrant reconsideration by the Board.

3.  He enlisted in the Regular Army on 9 January 2007.  He completed training and he was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).

4.  His service medical records he submitted provided the following information.

	a.  On 8 August 2009, he was treated at Landstuhl Regional Medical Center in Germany for a closed skull fracture malar/maxillary/upper jaw, fracture of nasal bones, closed skull fracture of orbital floor (blow-out), and alcohol intoxication.  He was assaulted by 5 other Soldiers.  He was released to quarters for 48 hours with a follow-up in the Ear, Nose, and Throat (ENT) Clinic.

	b.  He was seen and treated in the ENT Clinic on 10 and 14 August 2009.  He was released with a temporary profile from 13 - 27 August 2009 for closed skull fracture malar/maxillary/upper jaw and placed on light duty.

	c.  On 21 October 2009, he was seen for an initial TBI evaluation.  His chief complaint was migraine headaches, blurry vision, facial pain, and sleep disturbances.  He was released without limitations.  He was told not to operate a motorized vehicle or a weapon while under the influence of prescribed medication.  He was given strict instructions regarding the use of his migraine medication to include the risks and potential side effects.  He was told to use Imitrex only as an alternative to Topamax.

	d.  On 29 October 2009, he was seen in the Neurology Clinic.  He indicated he was suffering from pain in the left eye, headaches, memory difficulties, 

memory loss, and sleep disruption with difficulty initiating and maintaining sleep.  He stated he had been told several years ago he had sleep apnea.  He was having headaches well before the assault and the closed head injury only made the problem worse.  He was released with work/duty limitations (not shown) and told to return in 1 month and bring all his medications with him.

	e.  He continued to receive treatment for TBI, pain in the left eye, headaches, memory difficulties, memory loss, and sleep disruption from 25 November 2009 through 10 February 2010.  On 2 December 2009, he reported that his sleep aid was "working really good and he was sleeping a lot better."

	f.  DA Form 3349 (Physical Profile), dated 6 January 2010, gives him a temporary P3 profile for P - physical capacity or stamina, U - upper extremities, and L - lower extremities due to a severe closed head injury.  The temporary profile expired on 5 April 2010.  There is no record of an extension of this profile or of a permanent profile having been issued.

	g.  DD Form 2303 (Report of Medical Examination), dated 18 February 2010, noted his TBI with facial fractures and indicated he should continue treatment for headaches, memory loss, post-concussive syndrome.  The examining physician determined the applicant to be qualified for service.

5.  His NCOER covering the rated period 1 May 2009 through 28 March 2010 for his duties as an Operations NCO in Charge, Service Battery, 1st Battalion,
84th Field Artillery shows:

* His rater rated his competence (duty proficiency, MOS competency, and technical and tactical skills) as excellent
* His rater also rated his performance (Values/NCO Responsibilities) as successful or excellent and his overall potential as "Among the Best"
* He met the height and weight standards and passed the Army Physical Fitness Test (APFT) on 6 October 2009
* His senior rater rated his overall performance or potential as successful and superior

6.  On 7 May 2010, he was honorably released from active duty by reason of completion of required active service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.  He completed 3 years, 3 months, and 29 days of creditable active service.

7.  A letter from the TBI Clinic at the VAMC (Atlanta), Decatur, GA, dated          18 October 2010, shows he was evaluated during the months of August to October 2010.  He was evaluated through history and physical on 7 September 2010, neuropsychological evaluation on 13 October 2010, and speech linguistic memory evaluation on 5 October 2010.  His major complaint was short term or working memory difficulties but he admitted to being able to perform all activities of daily living and all instrumental activities of daily living without significant difficulty.  In terms of the diagnosis of TBI it was determined the applicant was well able to work but may have to utilize calendars, reminders, lists, and notes for recall of new information for a time.

8.  The VARO Winston-Salem Rating Decision, dated 3 November 2010, granted him service-connection for TBI (claimed with migraine headaches and memory loss).  He was assigned a 40% disability rating effective 8 May 2010 (the day after he left active duty).

9.  The Progress Notes he provided from VAMC, St. Louis, dated 1 November 2011, show his initial care plan for TBI Rehabilitation/Integration Plan at VAMC, St. Louis since relocating there.

10.  The Notice of Decision from the SSA, dated 3 April 2012, determined the applicant to be disabled since 8 August 2009.  However, medical improvement was expected with appropriate treatment.  Consequently, a continuing disability review was recommended in 12 months.  

11.  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.  It is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.

	a.  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, and 
S - psychiatric. 

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

		(2)  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.

		(3)  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	b.  To make a profile serial more informative, two modifiers are used:  "P" (permanent) and "T" (temporary).  The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

12.  Army Regulation 635-40, in effect at the time, established the Army Physical Disability Evaluation System and set forth policies, responsibility, and procedures that applied in determining whether a member was unfit because of physical disability to perform the duties of his office, grade, rank, or rating.

	a.  The medical treatment facility commander with the primary care responsibility evaluated those referred to him and would, if it appeared as though the member was not medically qualified to perform duty or failed to meet retention criteria, refer the member to a MEB.  Those members who did not meet medical retention standards were referred to a physical evaluation board (PEB) for a determination of whether they were able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

	b.  Paragraph 2-2b(1) stated that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

	c.  Chapter 3 states that 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.  Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.  

13.  Title 38, U.S. Code, permits 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.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  His service medical records show he was injured due to an assault on him on 8 August 2009 in Germany.  He was treated for TBI, pain in the left eye, headaches, memory difficulties, memory loss, and sleep disruption from 
8 August 2009 to 10 February 2010.  However, there are no entries in his service medical records stating he did not meet retention standards.

2.  There is no evidence he was unable to perform the duties of his office, grade, rank or rating.  The NCOER rendered by his chain of command clearly shows he was a fully capable Soldier who excelled in the performance of his duties as late as 28 March 2010, 6 weeks prior to his separation.  He passed his APFT on       6 October 2009.

3.  His separation physical noted his TBI with facial fractures and indicated he should continue treatment for headaches, memory loss, post-concussive syndrome.  However, the examiner determined him to be qualified for separation.

4.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for 

conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  Accordingly, it is not unusual for the VA to award a veteran a disability rating when the veteran was not separated due to physical unfitness.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.  Therefore, a rating awarded by the VA does not, in of itself, establish physical unfitness for Department of the Army purposes.

5.  Disability decisions by the SSA are made in accordance with their own policies and regulations and do not establish physical unfitness for Department of the Army purposes.

6.  In view of the foregoing, there is an insufficient evidentiary 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 to amend the decision of the ABCMR set forth in Docket Number AR20110014866, dated 22 February 2012.



      _________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)                                         AR20120010582



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ABCMR Record of Proceedings (cont)                                         AR20120010582



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