IN THE CASE OF:	  

		BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20120021337 


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 his previous request to correct his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged instead of honorably released from active duty.  

2.  The applicant states the Army Board for Correction of Military Records (ABCMR), Docket Number AR20110017551, dated 30 August 2012, stated on:

	a.  page 4 (Consideration of Evidence), paragraph number 8f(5), that "Physical abnormalities were noted; however, there were no documented limitations for profiles at that time.  The noted abnormalities included the Service Member's noting of a history of heart trouble/chest pain, frequent headaches, joint and back pain, high blood pressure, and hives."

* nowhere in his medical records is it documented, nor has he ever complained about having a history of heart problems, chest pain, joint pain, high blood pressure, or back pain
* the ABCMR needs to double check his medical records

	b.  page 5 (Discussion and Conclusions), paragraph number 2, that "The applicant contends he was unfit while in Iraq.  However, although he provides a large volume of Department of Veterans Affairs (VA) medical records he provides no medical documentation of an injury that occurred in Iraq."

* he received an award of the Purple Heart, which proves he was wounded in Iraq, on 26 February 2005, as a result of hostile enemy action
* his records were lost; therefore, he provided several medical documents and a letter from the VA dated between 18 March 2008 and 4 October 2012 to prove he was injured by an improvised explosive device (IED) in Iraq in 2005

	c.  page 5 (Discussion and Conclusions), paragraph number 3, that "The evidence of record shows the applicant had a periodic physical assessment in 2009.  The assessment recommended he follow up with his civilian physician regarding some physical abnormalities and while he required some activity limitations, there is no evidence the applicant provided the requested documentation or was found unqualified for service based on medical unfitness.  Therefore, in the absence of evidence to the contrary, it is presumed the applicant was medically qualified for continued/further service at that time."

* He provided a profile that shows his physical limitation
* He has no documentation to show he followed up with a civilian physical about physical abnormalities

	d.  page 5 (Discussion and Conclusions), paragraph number 4 that "The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated."

* He provided a memorandum showing his unit was aware of his Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), which restricted his ability to attend drills and unit functions
* It is unjust that a medical separation was never initiated

3.  The applicant provides:

* A Self-authored statement, dated 11 October 2012
* Permanent Orders (PO) Number 070-01, awarding him the Purple Heart, dated 11 March 2005
* DD Form 214
* Standard Form (SF) 507 (Clinical Record - Functional Capacity Certificate), dated 18 March 2008
* SF 600 (Chronological Record of Medical Care), dated 18 March 2008 
* Certification of Health Care Provider, dated 20 May 2008
* Letter from the VA, dated 10 August 2010


* Memorandum for Record, dated 2 September 2011 
* A 5-page document titled Problem List from the VA, dated 4 October 2012

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 ABCMR in Docket Number AR20110017551 on 30 August 2012.

2.  The applicant provided new arguments, a self-authored statement, PO awarding him the Purple Heart, a Memorandum for Record, and a 5-page list titled Problem List which he believes constitute a new argument and new evidence.  These new arguments and evidence were not previously considered by the Board; therefore, they warrant consideration by the Board.

3.  On 28 April 2003, he enlisted in the U.S. Army Reserve (USAR) for 6 years (plus a 2-year obligation in the Individual Ready Reserve (IRR)) and held military occupational specialty (MOS) 12B (Combat Engineer).  The highest rank/grade he attained was sergeant/E-5.

4.  His records show he served on active duty from 30 September 2004 to 
15 January 2006.  During this period he served in Iraq in support of Operation Iraqi Freedom from 1 January to 13 December 2005.

5.  His record contains a DA Form 4187, dated 7 March 2005, which shows he was recommended for award of the Purple Heart due to burns he received on his hand and head, on 26 February 2005, as a result of an IED detonation that engulfed his vehicle in flames.

6.  On 15 January 2006, he was honorably released from active duty by reason of completion of required active service.  His DD Form 214 shows he completed 1 year, 3 months, and 15 days of net active service.  His DD Form 214 also shows he was awarded the Purple Heart.

7.  His records do not contain any of the sources below that normally help in making a determination regarding fitness or unfitness for duty:

* Pre-deployment medical screenings
* Post-Deployment Health Assessment or Post Deployment Health Reassessment
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Line of Duty Investigation
* 
Mental Status Evaluation
* Medical or treatment records for PTSD or TBI

8.  His record contains three DA Forms 2166-7 (Noncommissioned Officer Evaluation Reports (NCOER)) that reveal during the period covered from:

	a.  December 2004 through November 2005 it was noted that he met the height and weight standards but failed the 2-mile run portion of the Army Physical Fitness Test (APFT); however:

* his rater rated him successful in the area of competence and indicated he was "fully capable" for promotion and/or service in positions of greater responsibility 
* his senior rater indicated his overall performance was successful and his overall potential for promotion and/or service in positions of greater responsibility was "superior"

	b.  1 December 2006 through 30 November 2007 and 1 December 2007 through 30 November 2008 he met the height and weight standards but he did not take the APFT during the rating period because he was undergoing evaluation and treatment for injuries he sustained in Iraq; however:

* his rater again rated his competence as successful and indicated he was "fully capable" for promotion and/or service in positions of greater responsibility 
* his senior rater indicated his overall performance was successful and   his overall potential for promotion and/or service in positions of greater responsibility was "superior"

9.  His record contains an SF 507, dated 18 March 2008, which shows the examining physician diagnosed him with PTSD/TBI and associated headaches and dizziness which contributed to numerous physical limitations. 

10.  His record contains an SF 600, dated 13 February 2009, which shows he had a history of TBI while deployed.

11.  His record contains a TBI Questionnaire, dated 13 February 2009, wherein:

* he indicated he received various injuries in a vehicle/blast incident, including being dazed, confused, or seeing stars, a loss of consciousness for 1-20 minutes, symptoms of concussion, and a head injury
* he indicated he experienced symptoms (as a result of the injuries he noted) of headache, dizziness, memory problems, balance problems, ringing in his ears, irritability, sleep problems, and pain in his joints and back
* as a result of his entries on the TBI Questionnaire, his health care provider diagnosed him with TBI as a result of an IED blast

12.  His record contains a Reserve Periodic Health Assessment (RPHA) dated 13 February 2009 which shows he was physically fit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) and able to deploy to austere environments.  It noted/indicated that the applicant: 

* had a history of TBI, chronic headaches, dizziness, memory loss, PTSD, and some head injury in 2005  
* had other abnormalities including a history of heart trouble/chest pain, frequent headaches, joint and back pain, high blood pressure, and hives

13.  His record contains a physical profile, dated 27 April 2009, which indicated he suffered from PTSD with suicidal ideation and TBI.  His physician indicated his profile was permanent and he met retention standards in accordance with Army Regulation 40-501, chapter 3.

14.  The previous Record of Proceedings (ROP) noted that the U.S. Army Human Resources Command (HRC), Integrated Web Service shows on:

	a.  2 May 2009, the Surgeon General received the applicant’s physical health assessment review.

	b.  4 May 2009, the initial screen was completed.

	c.  5 May 2009, the applicant was asked by email and mail to provide additional medical documentation.  There is no evidence he provided additional documentation.

	d.  11 May 2010, the case was closed.  The physical health assessment expired.  

15.  The HRC Integrated Web Service also shows the applicant was transferred to the IRR around July 2009.

16.  Orders Number D-05-107440, issued by HRC, dated 3 May 2011, show he was honorably discharged from the USAR (IRR).

17.  He resubmitted the following documents which were considered in the previous ROP:
	a.  A U.S. Department of Labor, Certificate of Health Care Provider, dated 20 May 2008, which indicated he had applied for enrollment in the Family Medical Leave Act, due to his diagnoses of PTSD, depression, TBI with headaches, dizziness, memory problems, and visual problems that commenced in 2005, and were permanent.  

	b.  A VA Certificate, dated 10 August 2010, showing he received a service connected disability rating of 100%.  

18.  He provided a Memorandum for Record, dated 2 September 2011, wherein the detachment commander stated the applicant was permitted to "[expiration term of service] ETS" from the USAR when his contractual obligation expired on 27 April 2009.  The unit was aware of his medical limitations and ongoing battle with PTSD and TBI which restricted him from commuting long distances to participate in unit functions.  Since the unit does not have his medical records, it is uncertain if a medical discharge was initiated.

19.  The applicant’s Retirement Points Detail Statement on HRC’s Integrated Web Services shows he performed inactive duty training on 14 May and 23 June 2007; 13 March, 20 March, 9 April, and 13 June 2008; and 9 February 2009.  It also shows he performed 18 days of active duty from 5 – 22 June 2007 and        3 days of active duty from 9 – 11 January 2009.

20.  He provided a 5-page problem list from the VA, dated 4 October 2012, which shows the following problems or conditions were annotated on:

* 27 July 2007: headache, allergic rhinitis (hay fever), vertigo, myalgia (muscle pain), depressive disorder, diplopia (double vision), PTSD
* 31 October 2007: hyperlipidmia (high lipid levels)
* 2 January 2009: concussion
* 13 January 2009: hyperglycemia (high blood sugar)
* 3 August 2011: dyspnea (shortness of breath)
* 15 November 2011: obesity

21.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, HRC, is responsible for administering the U.S. Army Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).
	a.  Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a Medical Evaluation Board (MEB), receive a permanent physical profile rating of P3 or P4 and are referred by a Military Occupational Specialty Medical Retention Board; are command-referred for a fitness-for-duty medical examination; or are referred by the Commander, HRC.

	b.  The PDES assessment process involves two distinct stages – the MEB and the Physical Evaluation Board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.

	c.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based on disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

22.  Army Regulation 635-40 establishes the PDES.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

	a.  Paragraph 3-1 (Standards of unfitness because of physical disability) provides 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 their office, grade, rank, or rating.

	b.  Paragraph 3-2 (Presumptions), subparagraph b, provides that when a Soldier is being separated or retired for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit.  The presumption of fitness can be overcome if the evidence 

establishes that he/she was unable to perform his/her 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.

23.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities. Ratings can range from 0% to 100% rising in increments of 10%.

	a.  Paragraph 3–30j (Neurological disorders) states there will be cause for an MEB for any other neurologic conditions, TBI or other etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, uncordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty.  The diagnosis must include a minimum psychiatric evaluation of Axis I, II, and III.

	b.  Paragraph 3–33c (Anxiety, somatoform, or dissociative disorders) states there will be cause for an MEB if there is a persistence or recurrence of symptoms resulting in interference with effective military performance.

24.  The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the publication that defines the criteria used in diagnosing mental disorder, classifies PTSD as an anxiety disorder that arises from “exposure to a traumatic event that involved actual or threatened death or serious injury.

25.  Title 10, U.S. Code (USC), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

26.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of any VA rating does not establish error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, 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.  The applicant served in the USAR between 28 April 2003 and 27 April 2011.  He was mobilized on 30 September 2004 and served in Iraq from 1 January to 13 December 2005.  On 26 February 2005, he received burns on his hand and head as a result of an IED detonation.  However, after this injury he was able to continue his deployment in Iraq which ended about 10 months later.

2.  There is no evidence in his service records and he provides insufficient evidence to show that at the time of his release from active duty that medical authorities found him physically unfit to perform the duties required of his grade and military specialty.  His DD Form 214 honorably released him from active duty, not by reasons of physical disability, but for by reason of completion of required active service, and returned him to his unit.  

3.  His record does not contain and he has not provided evidence such as a pre-deployment medical screening or post deployment medical screening immediately following the deployment, a line of duty investigation/determination, or medical treatment records from a medical facility in Iraq to show the injury he received in Iraq caused PTSD or TBI.  

4.  The evidence of record shows that after his release from active duty he capably performed the duties of his MOS.  This is evident in his receipt of three outstanding NCOERs which rated him superior in overall potential.  Nowhere did his raters indicate he was unable to perform the duties required of his MOS or that a physical profile hindered his duty performance.

5.  The applicant provided a Memorandum for Record, dated 2 September 2011, wherein the detachment commander stated the unit was aware of his medical limitations and ongoing battle with PTSD and TBI which restricted him from commuting long distances to participate in unit functions.  However, that statement is contradicted by the NCOERs the applicant received, which indicate the applicant could perform his duties, and by his Retirement Points Detail Statement, which indicates he was attending inactive duty training and even active duty on a fairly regular basis.

6.  The evidence of record shows:

	a.  He had a RPHA in February 2009.  The assessment recommended he follow up with his civilian physician regarding some physical abnormalities, he was physically fit for retention under the provisions of Army Regulation 40-501, and he was able to deploy to austere environments.  

	b.  He received a physical profile in April 2009.  This profile prohibited him from participating in the APFT and indicated he had PTSD with suicidal ideation TBI.  However, his profile also stated that he met retention standards in accordance with Army Regulation 40-501, chapter 3.

	c.  The surgeon general received his RPHA review and completed the initial review/screening in May 2009.  After the review/screening was complete he was contacted by email and mail and asked to provide additional medical documentation.  However, there is no evidence of record and the applicant has not provided evidence to show provided the requested documentation or was found unqualified for service based on medical unfitness.  Therefore, based on the fact that the surgeon general closed his case and in the absence of other evidence to the contrary, it is presumed the applicant was medically qualified for continued/further service at that time.

7.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency's examinations and findings.

8.  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 AR20110017551, dated 30 August 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)                                         AR20120021337



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ABCMR Record of Proceedings (cont)                                         AR20120021337



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