IN THE CASE OF:	   

		BOARD DATE:	  23 May 2013

		DOCKET NUMBER:  AR20120011361 


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 an evaluation by a Medical Evaluation Board (MEB) to determine whether he met retention standards at his discharge from the California Army National Guard (CAARNG).

2.  The applicant states, in effect, that he was not given the opportunity to be processed through the Physical Disability Evaluation System (PDES) for the purpose of establishing the proper basis for his separation.  He was medically discharged due to post-traumatic stress disorder (PTSD) without an evaluation by an MEB.  He was deployed to Iraq in 2003-2004.  He is currently rated at 60 percent disabled by the Department of Veterans Affairs (VA).  Due to being discharged in this manner he is unable to apply for Army Combat-Related Special Compensation (CRSC) or his military pension as he is unable to provide information regarding an MEB and physical evaluation board (PEB). 

3.  The applicant provides copies of his discharge records and VA disability rating.

CONSIDERATION OF EVIDENCE:

1.  On 7 February 2003, he entered active duty in support of Operation Enduring Freedom/Operation Iraqi Freedom from his ARNG unit.

2.  He provides a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60, dated 2 June 2003 (also known as a 20-year letter). 

3.  On 10 June 2004, he was released from active duty due to completion of required active service (return from deployment).

4.  He provides a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 17 June 2006.  This form shows the applicant injured his back and shoulder while performing police call and armory maintenance.  The form showed his injury was not likely to result in a claim against the government for future medical care.  On 27 June 2006, a line of duty (LD) was approved for this injury. 

5.  An ARNG Retirement Points History Statement, dated 13 November 2006, shows at the time he had 20 qualifying years of service for retirement at age 60. 

6.  His records contain a Headquarters, CAARNG memorandum, subject:  Selection for Retention under Army Regulation 135-205 (Enlisted Personnel Management), dated 19 April 2007, stating the applicant was approved for continued retention in a unit in the ARNG.

7.  His records contain five DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Reports) completed after his return from deployment in 2004.  These DA Forms 2166-8 covering the rating periods from June 2004 through 30 September 2008 show he received two "fully capable" and three "among the best" ratings.  One of these forms states "profile doesn't limit his performance."

8.  On 2 March 2009, the CAARNG issued Orders 61-1329 discharging the applicant and transferring him to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) effective 30 August 2009.  He was assigned an assignment loss reason code of CC/SC (completed 20 years active or inactive service/ selective or qualitative retention action).

9.  A DA Form 3349 (Physical Profile), dated 19 August 2009, shows a permanent profile of "S4" for PTSD was not approved for the applicant.  The State Surgeon's Office was identified as the issuing clinic.  It does not contain a countersignature (authorizing authority).

10.  On 20 August 2009, the CAARNG State Surgeon's Office stated it had completed a medical determination on the applicant and he had been recommended for separation based on his medical condition.  There is no mention of what medical condition this recommendation was based on.  It further stated the division commander would review all separation recommendations from the State Surgeon and if the separation was approved instructions on an appeal would be mailed to the applicant.

11.  On 28 August 2009, the CAARNG issued Orders 240-1011 revoking Orders 61-1329.

12.  On 28 August 2009, the CAARNG issued Orders 240-1008 discharging the applicant and transferring him to the USAR Control Group (Retired Reserve) effective 30 August 2009.  He was assigned an assignment loss reason code of MG/CC (medical, physical or mental condition retention/completed 20 years service, active or inactive).

13.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant was discharged from the CAARNG on 30 August 2009 under the provisions of Section 260, California Military and Veterans Code (M/VC) and National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27a (not selected for retention by a qualitative retention board).  He was assigned to the USAR Control Group (Retired Reserve).  This form shows he had completed 28 years of service for retired pay purposes at the time of his retirement. 

14.  An NGB Form 22A (Correction to NGB Form 22), dated 23 February 2010, shows the authority and reason for his separation from the ARNG was changed to show Section 260, California M/VC and National Guard Regulation 600-200, paragraph 8-27l (placement on the permanent disability list).

15.  The applicant's complete medical record is not available for the Board's review.

16.  A VA Rating Decision, dated 10 August 2011, shows he received an overall combined 60 percent disability rating for the following conditions:

* PTSD (effective 17 March 2010)
* lumbosacral strain (effective 11 June 2004)
* tinnitus (effective 11 June 2004)

17.  In connection with the processing of this case, an advisory opinion was obtained from the NGB Patient Administration Officer.  This official stated that based solely on the documentation provided, it was his professional opinion that administrative relief was not necessarily warranted or possible in this case.  He stated it appeared the applicant wanted to go through the PDES in order to receive a separation specifically for disability.  The assumption was that the applicant sought this for some monetary separation benefit.

	a.  The official further stated entry or referral into the PDES requires a physical capacity or stamina, upper extremities, lower extremities, hearing and ears, eyes, psychiatric (PULHES) code of either three or four and signed by both the profiling officer and a senior profiling officer (approving authority).  The documentation provided in this request contains a profile with the function "S" (psychiatric) rated as a 4.  He noted the profile document was not countersigned by an approving authority.  If the applicant were to be further evaluated in the PDES and even if the condition was considered unfitting, there is no guarantee at this point that the applicant would receive a rating for the condition that would warrant separation compensation despite the VA rating he received.

	b.  If the profile had been reviewed and concurred with by an approving authority, the proper procedure should have been for the Soldier to be counseled prior to his retirement on the potential for PDES processing versus continuing his retirement processing.  Upon such counseling, describing the potential benefits and drawbacks of both courses of action, it would then be left to the applicant to decide which to pursue.

	c.  It is possible the applicant did receive some form of counseling mentioned above, and that he decided to continue retirement processing, and then subsequently decided it may have been more advantageous to enter the PDES.  However, that can be neither confirmed or denied by the documentation provided.

18.  In connection with the processing of this case, the Deputy State Surgeon, Headquarters, CAARNG stated the applicant had three open medical consults which were reviewed for medical determination by Lieutenant Colonel SPR on 18 August 2009.  The applicant was recommended for separation in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-32 and 3-33.  LTC SPR entered a permanent "P4" [sic, "S4"] profile on 19 August 2009, which was countersigned by the State Surgeon on 2 October 2009.  The separation memorandum, dated 20 August 2009, was sent by certified mail and received by the applicant on 22 August 2009.  Medical notes indicate the Lead Case Manager, Ms. MF, was approached by the applicant and discussed options on or about 22 August 2009 regarding his medical issues and documents needed.

	a.  The current Medical Review Officer (MRO), Captain RC, reviewed the case file and opined that the applicant's medical record did not justify an S4 level profile, as there was no evidence of prior psychotic episode.  If deployment is the only limiting factor, then S3 would have been appropriate.  The VA provider note from 20 March 2009 did not clearly state that limitations on deployment were permanent.  The official stated that while the applicant's attending VA provider expressed some concerns regarding the applicant's fitness for deployment, she recommended that he remain compliant on prescribed medications and with outpatient treatment for "at least several more months" from 20 March 2009.  The official stated the applicant's Noncommissioned Officer Evaluation Reports (NCOERs) indicated his military performance was exceptional, which is not the typical performance of someone who is significantly impaired due to PTSD.
  
	b.  The official further stated that on 2 March 2009, the applicant was non-retained by an Enlisted Qualitative Retention Board (EQRB) and an order was processed for him to be discharged on 30 August 2009.  Since the applicant was not referred to an MEB at the time of adjudication of the administrative board (EQRB) the applicant was presumed fit in accordance with Department of Defense Instruction (DoDI) 1332.38, and therefore the administrative board action took precedence.

19.  In connection with the processing of this case, an advisory opinion was also obtained from the Chief, Personnel Policy Division, NGB.  

	a.  The official stated that upon initial review in December 2011, the Chief, Surgeon General Division, NGB, did not recommend administrative relief in this case.  The applicant's argument was that he was separated administratively due to PTSD, with a 60 percent disability rating from the VA.  He stated because he was not allowed an MEB, he was unable to apply for CRSC or a military pension.

	b.  The Chief, Surgeon General Division, NGB stated that in order for this applicant to be entered in the PDES he would require a physical profile of a permanent condition with a PULHES code of three or four, and signed by both the profiling officer and a senior profiling officer (approving authority).  He did receive a code of four in the S category; however, it was electronically signed by the profiling officer on 19 August 2009, which was 11 days prior to his effective retirement date of 30 August 2009.  This would not have allowed enough processing time for a disability evaluation.  Also, the profile provided was not signed by an approving authority.

	c.  The State could not determine why there was a change to the applicant's NGB Form 22 showing he was placed on the permanent disability list with the entry deleted that showed he was separated due to being not selected for retention.  The Chief, Surgeon General Division, NGB could not determine what the permanent disability list was, or whether there was a typographical error to mean permanent disability retirement list as specified in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	d.  The advisory official recommended the applicant's records be corrected by the Office of the State Surgeon General (OTSG), by contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant.  In the event the applicant requires an MEB or PEB, the applicant would be afforded all the benefits normally afforded to individuals on active duty who are undergoing an MEB and/or PEB.  Should the determination be made that the applicant should have been separated under the PDES, these proceedings would serve as the authority to void his administrative discharge and to issue him the appropriate separation retroactive to his original separation date with entitlement to any pay and allowances, less any entitlements already received.  The Chief, Surgeon General Division, NGB agrees with this recommendation.

20.  On 12 March 2013, the advisory opinions were forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not submit a response.

21.  National Guard Regulation 600-200, paragraph 8-27a, in effect at the time, shows that Soldiers not selected for retention by a qualitative retention board in accordance with chapter 4, Army Regulation 135-205 could elect to be reassigned to the USAR Control Group (Reinforcement or Retired Reserve).
 
22.  National Guard Regulation 600-200, paragraph 8-27l provided for placement on the permanent disability retired list.  

23.  National Guard Pamphlet 25-10 (Standard Installation/Division Personnel System (SIDPERS)-ARNG Data Element Dictionary) provides the definitions of data elements and data codes used in SIDPERS-ARNG.  Appendix A shows the definitions of assignment loss codes.  It shows the following pertinent definitions:

* CC -- completed 20 years service, active or inactive
* MG -- medical, physical or mental condition retention
* SC -- selective or qualitative retention action

24.  Army Regulation 135-205, chapter 2, provides policy governing the selective retention of Soldiers in Army National Guard of the United States (ARNGUS) units and USAR Troop Program Units (TPU).  It states the purpose of the Qualitative Retention Program (QRP) is to determine retention potential and acceptability for reenlistment or extension of enlistment.  In general, the QRP provides for a review every 2 years of Reserve Component (RC) Soldiers serving in ARNGUS units and USAR TPUs who have 20 or more years of qualifying service for non-regular retired pay and who are within the zones of consideration.

25.  Army Regulation 635-40 establishes the PDES according to the provisions of Title 10, U.S. Code, chapter 61 (Retirement or Separation for Physical Disability) and DoD Directive 1332.18.  It contains the rules and policies for disability processing of RC Soldiers on active duty or on inactive duty for training.  It states an RC Soldier will be referred for medical processing through the Army PDES when a commander or other proper authority believes a Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  It further 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.  Separation by reason of disability requires processing through the PDES.

26.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and MOS with the medically-disqualifying condition.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

27.  Department of Defense Instruction 1332.38, paragraph E3.P3.5 states the “Presumption of Fitness” rule will be applied to a Soldier who enters the PDES and his request for voluntary retirement has been approved; when an officer has been approved for Selective Early Retirement; when an officer is within 12 months of mandatory retirement due to age or length of service; or when an enlisted member is within 12 months of his retention control point (RCP) or expiration of active obligated service (EAOS) but will be eligible for retirement at his RCP/EAOS.

28.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30 percent.  Section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.

29.  Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the LD while serving on active or inactive duty.  However, the disability must have been the proximate result of performing military duty.  It further provides for 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.

30.  Title 38, U.S. Code, sections 1110 and 1131, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be referred to an MEB/PEB for a disability rating determination due to being medically discharged due to PTSD rated at 60 percent disabling by the VA.  He indicates this was caused by his service in Iraq in 2003-2004.

2.  The evidence of record shows he injured his back and shoulder in 2006 while performing police call and armory maintenance in the LD.  However, the form showed his injury was not likely to result in a claim against the government for future medical care and there is no evidence he was unable to perform his duties due to this injury.

3.  His NCOERs covering his rating periods after his return from Iraq all contain "fully capable" and "among the best ratings."  One of these forms states his profile didn't limit his performance.

4.  In April 2007, he was approved for retention beyond 20 qualifying years of service for retirement purposes.  Therefore, it is reasonable to presume he was considered fit for duty in accordance with Army Regulation 40-501. 

5.  On 2 March 2009, the CAARNG transferred him to the Retired Reserve effective 30 August 2009 based on not being selected for retention after completion of 20 years or more active or inactive service.

6.  A DA Form 3349, dated 11 days prior to his retirement date shows an "S4" rating for PTSD was marked "not approved" by the profiling officer.  The form does not show an approving authority signature.  It appears this may be the earliest medical documentation related to PTSD available for the applicant. 

7.  A memorandum for the applicant, dated the next day, states the CAARNG State Surgeon had recommended him for separation based on his medical condition.

8.  There is no evidence the applicant was ever recommended for an MEB.

9.  His NGB Form 22 shows he was transferred to the Retired Reserve due to being not selected for retention.  An NGB Form 22A, dated 23 February 2010, changed the reason for his separation to placement on the permanent disability list.

10.  The MRO reviewed the applicant's case and opined that the applicant's medical record did not justify a S4 level profile, as there was no evidence of prior psychotic episode.  He stated that if deployment was the only limiting factor, the S3 would have been appropriate.  The MRO stated the applicant's NCOERs indicated his military performance was exceptional, which is not the typical performance of someone who is significantly impaired due to PTSD.  He further stated that on 2 March 2009, the applicant was non-retained by an EQRB.  Since the applicant had not been referred to an MEB at the time of adjudication of the administrative board (EQRB) he was presumed fit in accordance with DoDI 1332.38, and therefore the administrative board took precedence.

11.  The NGB advisory opinion stated the Chief, Surgeon General Division, NGB did not recommend administrative relief in this case.  The NGB stated he did receive a code of four in the S category and the document was electronically signed by the profiling officer on 19 August 2009, which was 11 days prior to his effective retirement date.  However, it is noted that the DA Form 3349 provided to the Board shows the S4 was marked "not approved" and it was not signed by an approving authority.

12.  The State could not determine why there was a change to the applicant's NGB Form 22 showing he was placed on the permanent disability list with the entry deleted that showed he was separated due to being not selected for retention.  The Chief, Surgeon General Division, NGB could not determine what the permanent disability list was, or whether there was a typographical error to mean permanent disability retirement list as specified in Army Regulation 635-40.



13.  The advisory official recommended the applicant's records be corrected by the OTSG by contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant.  The Chief, Surgeon General Division, NGB agreed with this recommendation.

14.  Notwithstanding the NGB advisory opinion, the applicant's NCOER's do not reflect any evidence he was unable to satisfactorily perform the requirements of his duties.  To the contrary, his ratings were that of "fully capable" and "among the best."

15.  On 10 August 2011, the VA rated him at 50 percent disabling for PTSD effective 17 March 2010 (several months after his retirement).  The award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

16.  Based on the available evidence and information provided by the Patient Administration Officer, NGB and CAARNG Deputy State Surgeon, it appears the applicant was properly administratively separated/retired due to not being selected for retention.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.

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)                                         AR20120011361



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011361



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1