BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120015025 


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 case be considered by a Medical Evaluation Board (MEB).

2.  Counsel states:

	a.  the applicant did not meet retention standards while on active duty but he was not placed in the Army Physical Disability Evaluation System (PDES).

	b.  he was ordered to active duty from the Minnesota Army National Guard (MNARNG) in 2004, he deployed in support of Operation Iraqi Freedom (OIF) in October 2004, and he was placed on medical hold status in September 2005.  On 20 July 2006, he was released from active duty (REFRAD) to the ARNG.

	c.  during his active duty period he served in Iraq.  He redeployed in September 2005 after 11 months of service in a war zone.  He served as a chaplain during that period.  While on duty in Iraq he participated in over 
35 memorial services, counseled families of the dead and Soldiers who had lost comrades in arms, attended the needs of the seriously wounded at field hospitals, counseled those who had killed in combat and took their personal 


confessionals, observed multiple death and horrific wounds, and he was subjected to incoming mortar.  He received the Combat Action Badge.

	d.  immediately upon his arrival at Fort McCoy, WI he completed a report of medical history and reported nervous trouble and frequent trouble sleeping.  He self-reported to behavioral health.  His clinical notes noted:

* Post-Traumatic Stress Disorder (PTSD)
* but could be displaying some bipolar traits
* referred to psychiatrist to rule out depression and bipolar traits

	e.  he was diagnosed with cyclothymics disorder and PTSD.  He left Fort McCoy in March 2006.  Treatment for PTSD was ongoing and he had not reached a stable condition either with medications or emotionally.  However, on 21 July 2006, he was REFRAD "not by reason of physical disability."  Given his condition an MEB was warranted.  He clearly did not meet retention standards.

	f.  during the period in question the Army was trying to come to grips with both the extent and severity of the PTSD problem.  Many Soldiers were discharged prematurely.  It should be obvious to all concerned that the absence of an MEB is not grounded in the absence of clinical evidence.  Rather it is grounded in the lack of administrative oversight.  When the applicant left Fort McCoy after only a brief period to be treated by civilians the prospect of an MEB faded to zero.  There was no one to initiate such a board that had both an interest in the applicant and the capacity to initiate.  This happened with regularity during this period.

	g.  from September 2006 to October 2008 the applicant's PTSD was treated at the Department of Veterans Affairs (DVA) Medical Center.  The VA rated him 30 percent for PTSD, service-connected.

	h.  he suffers from PTSD as the result of his service in war.  At the very least an MEB is required in this setting to ascertain a percentage of disability.

3.  Counsel provides numerous attachments outlined in his brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a first lieutenant in the U.S. Army Reserve, Chaplain Corps, on 9 October 1987.  He was appointed a major in the ARNG on 22 August 2002.

2.  He was ordered to active duty on 16 August 2004 in support of OIF.  He served in Iraq from 2 October 2004 to 14 September 2005.

3.  He provided a DD Form 2807-1 (Report of Medical History), dated 
15 September 2005, that shows he reported he had or was having nervous trouble and frequent trouble sleeping.

4.  On 16 September 2005, he was placed on medical hold for a urologist consult (enlarged prostate) and hearing test.

5.  He provided a medical record, dated 22 September 2005, that states "SM (service member) appears to be having some PTSD symptom, but could be displaying some bipolar traits; therefore, writer will referred [sic] SM to Dr. to R/O [rule out] Depression and Bipolar traits."

6.  A DA Form 3349 (Physical Profile), dated 16 March 2006, shows he was issued a permanent profile "2" for hearing loss.

7.  He provided a psychiatric assessment, dated 28 March 2006, that shows he was diagnosed with cyclothymic disorder and PTSD.

8.  On 21 July 2006, he was honorably REFRAD under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges) by reason of completion of required active service.  

9.  His DA Form 67-9 (Officer Evaluation Report (OER)) covering the period
28 November 2006 through 27 November 2007 shows he was rated "Outstanding Performance, Must Promote" by his rater and rated "Fully Qualified" by his senior rater.

10.  He provided DVA documentation that shows he was diagnosed with PTSD on 30 October 2007.

11.  He received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 5 November 2007.

12.  A DA Form 3349, dated 5 May 2009, shows he was issued a permanent profile "3" for hearing loss.

13.  His OER covering the period 6 January 2009 through 5 January 2010 shows he was rated "Outstanding Performance, Must Promote" by his rater and rated "Best Qualified" by his senior rater.
14.  In December 2009, a Military Occupational Specialty/Medical Retention Board (MMRB) found the applicant was fully capable of performing his primary branch in a worldwide environment and recommended the applicant be retained in his primary branch.  The separation authority approved the findings and recommendations of the MMRB.

15.  His OER covering the period 6 January 2010 through 5 January 2011 shows he was rated "Outstanding Performance, Must Promote" by his rater and rated "Best Qualified" by his senior rater.

16.  In June 2001, he was notified he had been selected for retention by the 2011 Selection Retention Board.

17.  On 7 November 2011, he was separated from the ARNG by reason of completion of maximum service and transferred to the Retired Reserve.

18.  He provided a DVA documentation that shows he was granted service-connection for PTSD (30 percent).

19.  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.

20.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

21.  Army Regulation 635-40 states 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 they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service.  It states the mere presence of an 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.  

22.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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.

23.  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 what 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

24.  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.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect that 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.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions and request for an MEB were carefully considered.  However, it appears the applicant was found qualified for separation on 21 July 2006.  It also appears he was medically fit to continue to serve in the ARNG and perform his military duties following his REFRAD.  His OERs for the periods November 2006 to November 2007 and January 2009 to January 2011 show he was rated "Outstanding Performance, Must Promote" for his performance during the rated periods and his potential for promotion.  They do not give any indication that he could not perform his duties.  In addition, an MMRB found he was fully capable of performing his primary branch in a worldwide environment in December 2009 and he was selected for retention by the 2011 Selection Retention Board.

2.  It is acknowledged the DVA has granted him a 30 percent disability rating for PTSD.  However, the rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

3.  The mere presence of an 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.  The available evidence shows the applicant was fully capable of performing his military duties.

4.  In view of the foregoing, there is no basis for granting the applicant's/counsel'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 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)                                         AR20120015025



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ABCMR Record of Proceedings (cont)                                         AR20120015025



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