IN THE CASE OF:	  

		BOARD DATE:  2 July 2013

		DOCKET NUMBER:  AR20120021361 


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 earlier request for a medical retirement.

2.  The applicant states:

	a.  He doesn't believe the Board understands exactly what happened to him or any of the injuries he currently has.  The Board even fails to understand the position he held during the deployment.  He was not a mechanic.  He trained as a combat medic in 1994 and this is the military occupational specialty he held while deployed in Iraq.

	b.  He deployed to Iraq in March 2003 and he was injured on 16 May 2004 in Iraq.  He was the medic assigned to two military police squads.  They came under mortar fire on 16 May 2004.  A mortar landed 1-2 meters from him and he fell backward in between two air conditioning units.  He attempted to stand and fell on his face.  He rolled over to find his legs were smoking, so he attempted to extinguish the burning only to find that he was bleeding.  He was treated at the field hospital and he was transported to a medical surgical hospital in Babylon, Iraq.  He was evaluated by a surgeon who took x-rays of his legs and noted his shrapnel injuries.  Two weeks later, he returned to his company.  A couple of weeks later, he arrived at Fort Leonard Wood, MO, for out-processing.

	c.  He scheduled an appointment with the Department of Veterans Affairs (VA) for an evaluation of his injuries in August 2004.  The VA took x-rays of his injuries from his knees down.  He then applied for VA disability.

	d.  In November 2008 while working for the Colorado State Patrol, he injured his back.  His legs were x-rayed and were found to be full of shrapnel.  He found out he had a piece of shrapnel in his heart in 2009.  He was also advised that he had a traumatic brain injury in 2009.  He was diagnosed with post-traumatic stress disorder in February 2009.

	e.  He served as a combat medic, not a wheeled vehicle mechanic.  He was awarded the Combat Medical Badge for his service as a combat medic in a combat area.

	f.  His VA experience started in 2004 and the documents were printed in 2009.

	g.  He believes he has proven he was unable to perform his duties as a medic post-incident.  There was never an evaluation as to whether he could have performed his duties post-incident.  After his service in Iraq, he was unable to return to his duties as a paramedic due to his injuries.

	h.  He returned to his company but was advised that he would not return to combat duty with his company due to the injuries he received on 16 May 2004.

	i.  He doesn't understand why he wasn't considered by a medical evaluation board prior to leaving active duty.  He was out-processed and released from active duty (REFRAD) to the control of the Army National Guard (ARNG) in 4 days.

3.  The applicant provides:

* letter from a sergeant first class (SFC), undated
* various statements from Soldiers regarding a mortar attack
* VA medical records
* letter from a Member of Congress, dated 25 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120004201 on 4 September 2012.

2.  The applicant provides an undated letter from an SFC who attests:

* the applicant served as a line medic with his medical section in Iraq from 15 March 2003 to 7 May 2004
* the applicant was injured by mortar fire in Iraq

3.  He provided various statements from Soldiers attesting to a mortar attack on 16 May 2004 in Iraq.

4.  He also provided numerous VA medical records, dated 2004, 2005, and 2009, which show his diagnoses, consultation requests, radiology reports, laboratory reports, progress notes, and surgical information.

5.  The documentation provided by the applicant is new evidence that warrants consideration by the Board.

6.  Having prior service in the ARNG, the applicant enlisted in the ARNG on 31 July 2001 for a period of 6 years.  He was ordered to active duty on 4 October 2001 in support of Operation Joint Guardian.  His records show he served as a medical specialist in Macedonia from 25 October 2001 to 28 October 2001 and in Kosovo from 28 October 2001 to 4 May 2002.  On 31 May 2002, he was REFRAD.

7.  He was again ordered to active duty on 15 March 2003 in support of Operation Enduring Freedom.  His records show he served as a health services specialist in Kuwait from 7 June 2003 to 12 June 2003, in Iraq from 12 June 2003 to 10 July 2004, and in Kuwait from 10 July 2004 to 11 July 2004.  On 2 June 2004, he was awarded the Purple Heart for wounds received in action on an unspecified date.  On 15 August 2004, he was REFRAD to the control of the ARNG.

8.  On 30 July 2007, he was honorably discharged from the ARNG at the expiration of his term of service.  His record is void of evidence and he did not provide any evidence showing he was physically unfit to perform his duties.

9.  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 or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

10.  Title 10, U.S. Code, 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 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  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, or rank.  It states that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically retired rather than honorably discharged.

2.  The evidence shows he was REFRAD on 15 August 2004 following his deployment to Iraq.  He continued to serve in the ARNG until he was honorably discharged on 30 July 2007 at the expiration of his term of service.

3.  There is no evidence of record and the applicant did not provide any evidence that shows a medical condition rendered him unable to perform his duties.    Therefore, there is insufficient evidence to show his medical retirement was warranted.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120004201, dated 4 September 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)                                         AR20120021361



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ABCMR Record of Proceedings (cont)                                         AR20120021361



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