IN THE CASE OF:	  

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120022117 


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 correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 8 October 2005 to show he was medically retired vice honorably released from active duty by reason of completion of his required active service.

2.  The applicant states:

	a.  The reason for his October 2005 separation is shown as completion of required active service.  He was given an honorable discharge.  When he was released from active duty, his unit was still in Iraq.  He was injured in Iraq by a suicide bomber on 30 March 2005.  He requests amendment of the reason for his discharge to medical reasons or disability retirement for Department of Veterans Affairs (VA) education purposes.  He applied for and received the 
Post-9/11 GI Bill and it was approved at 70 percent.  It was then raised to 100 percent because he sent in the documents stating where he was injured and retired because he was injured in combat.  About 3 weeks later it was decreased to 70 percent because his DD Form 214 shows he was released from active duty and not medically retired.

	b.  He was released from active duty and sent back to the Kentucky Army National Guard (KYARNG).  Once he was sent back, the ARNG sent him for a medical evaluation board (MEB) and he was placed on the Temporary Disability Retired List (TDRL).  He was permanently retired on 23 November 2010 after a 2-year period.  He had a blue retiree identification card and everything.  He was discharged because of his injuries and he still deals with those every day.  He takes online classes because he has to keep his mind active.  If he did not, he would go crazy.  With just 70 percent of the Post-9/11 GI Bill, he cannot afford to go to college.  He just wants to be able to go to school and maybe have a normal life one day.

3.  The applicant provides:

* Congressional correspondence
* DD Form 214 for the period ending 8 October 2005
* DA Form 4187 (Personnel Action) - retention waiver
* DA Form 4187 - Purple Heart
* DA Form 4187 - Combat Action Badge
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* ARNG Bonus Annex

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Marine Corps and the ARNG, the applicant enlisted in the KYARNG on 4 May 2000 and he held military occupational specialties 11B (Infantryman), 31B (Military Police), and 13B (Cannon Crewmember).

2.  He entered active duty in support of Operation Noble Eagle on 5 May 2003.  He was honorably released from active duty on 6 February 2004 in accordance with Army Regulation 635-200 (Personnel Separations), chapter 4, by reason of completion of his required service.

3.  He again entered active duty on 7 November 2004.  He subsequently served in Kuwait/Iraq from 13 January 2005 to 5 April 2005.  While in Iraq, he executed a 6-year extension of his ARNG enlistment commitment on 9 February 2005.

4.  Also while in Iraq, he sustained injuries while serving as the driver for a convoy security escort mission when a vehicle-borne improvised explosive device (IED) exploded on 30 March 2005 and caused burns to his hands and face.

5.  He was retained on active duty to voluntarily participate in the Reserve Component Medical Retention Processing Program for completion of medical care and treatment.  He was assigned to the U.S. Army Armor Center, Fort Knox, KY.

6.  Upon completion of his medical care, the U.S. Army Human Resources Command (HRC), Alexandria, VA, approved a request from the Commander, U.S. Army Armor Center, Fort Knox, KY, to release the applicant from active duty in accordance with Army Regulation 635-200, chapter 4, by reason of completion of his required active service.

7.  The applicant was honorably released from active duty on 8 October 2005.  His DD Form 214 shows he was released from active duty under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of his required active service.  He was transferred to the control of his state ARNG.

8.  Subsequent to his release from active duty, the applicant continued his assignment with his unit, Battery C, 2nd Battalion, 138th Field Artillery, Bardstown, KY.

9.  His medical records are not available for review with this case.  However, the available records show he was issued a permanent physical profile for lower back pain, right wrist pain, major depressive disorder, and post-traumatic stress disorder (PTSD) on 5 May 2008.

10.  His narrative summary is not available for review with this case.  However, based on the permanent physical profile it appears he was found to have medical conditions that did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  It also appears that after the State Surgeon General made a determination that the applicant was medically unfit for retention in the ARNG, the applicant produced evidence that his medical condition(s) were either incurred while serving on active duty or were aggravated by his active duty service.  As such, he was recommended for entry into the Physical Disability Evaluation System (PDES).

11.  On 24 April 2008, an MEB convened.  After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of moderate recurrent major depressive disorder, PTSD, chronic low back pain of unknown etiology, and chronic right wrist pain of unclear etiology.  The MEB recommended his referral to a physical evaluation board (PEB).  The back page of the DA Form 3947 (MEB Proceedings) is not available for review with this case.  

12.  On 9 July 2008, an informal PEB convened at Fort Lewis, WA.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to various conditions coded under the VA Schedule for Rating Disabilities (VASRD) as follows:
	a.  Code 9434 – for major depressive disorder emerging from PTSD from combat injury while deployed to Iraq in March 2005 when he sustained flash burns to his face and hands from a car bomb associated with PTSD, which is inextricably intertwined, cannot be separately evaluated, and is included in the rating for depression.  After evacuation from theater, the record shows he was diagnosed with acute stress reaction and released from active duty on 8 October 2005 after receiving physical therapy for ulnar nerve entrapment.  He subsequently returned to civilian work as a grocery store manager but was unable to sustain employment and never returned to ARNG drill (scheduled training).  He was taking medication; however, the evaluation indicates ongoing symptoms of anhedonia (inability to experience pleasure from activities usually found enjoyable), poor concentration, guilt, sleep disturbance, memory problems, impulsiveness, and crying.  He was determined unfit due to risk of decompensation in a high-demand military environment.  He was not stable for a final rating.  He was rated 30-percent disabled for impairment due to depressed mood, anhedonia, difficulty concentrating, and sleep disturbance that would cause occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

	b.  Code 5237 – for chronic low back strain.  He was determined unfit due to limitations in ability to perform bending, heavy lifting, and wearing interceptor body armor, first documented several months after injury in an lED explosion.  Record notes complaint of low back pain several months after injury; radiographs are normal.  The examination shows full range of motion without tenderness or spasm with forward flexion to 90 degrees with notation of painful motion.  He was rated 10-percent disabled for satisfactory evidence of painful motion in accordance with VASRD 4.59, with consideration given to VASRD 4.10 (functional impairment) and 4.40 (functional loss).

	c.  Codes 5099/5003 – for chronic right wrist pain.  He was determined unfit due to limitations in ability to perform heavy lifting persisting after injury in an IED explosion in March 2005.  Magnetic resonance imaging done a month later showed a small amount of fluid in the triangular fibrocartilaginous (meniscus of the wrist) joint without a definite tear.  The examination shows palmar (palm of the hand) flexion to 50 degrees, a 15-degree limitation in palmar flexion compared to the opposite side.  He was rated 10-percent disabled for limitation of motion, with consideration given to VASRD 4.10 (functional impairment) and 4.40 (functional loss).

13.  He was assigned a 40-percent combined disability rating.  The PEB recommended his temporary retirement and placement on the TDRL.  He initially did not concur and demanded a formal hearing of his case.  A formal PEB was scheduled for 5 August 2008.
14.  Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  His counseling culminated on 25 July 2008, when he was counseled by a PEBLO regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law.  Subsequent to this counseling and after discussing his option with his legal counsel, he withdrew his demand for the formal PEB and concurred with the PEB's findings and recommendation.

15.  On 12 August 2008, the U.S. Army Physical Disability Agency (USAPDA) published Orders D225-03 releasing him from his duties by reason of physical disability and placing him on the TDRL in the rank/grade of specialist (SPC)/E-4 effective 16 September 2008.

16.  On 11 September 2008, the KYARNG published Orders 255-812 discharging him from the ARNG by reason of medically unfit for retention effective 16 September 2008.   He was issued a National Guard Bureau Form 22 (Report of Separation and Record of Service) that captured his ARNG service through 16 September 2008.

17.  On 8 November 2010, an informal TDRL PEB convened and found the applicant's condition did not improve to the extent that he was considered fit for duty and that he remained unfit to reasonably perform the duties required by his previous grade and military specialty.  However, his condition was considered sufficiently stable for final adjudication.  He was rated 40 percent disabled for his Major Depressive Disorder and Chronic Low Back Pain.  The TDRL PEB recommended he be permanently retired from the service.  He concurred.

18.  On 22 November 2010, the USAPDA published Orders D326-11 removing the applicant from the TDRL effective 22 November 2010 and permanently retiring him the next day in the rank/grade of SPC/E-4.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  The PDES involves two distinct stages of case processing:  the MEB and the 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.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  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 temporarily or permanently retired, depending on the severity of the disability and length of military service.

	b.  Paragraph 3-2b 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 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 or retirement 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 creates a presumption that the Soldier is fit.

20.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records, specifically medical records, are incomplete.  However, the available records show he was mobilized on 7 November 2004 and subsequently served in Kuwait/Iraq from 13 January to 5 April 2005.  While serving in Iraq, he was involved in an IED explosion on 30 March 2005 that caused burns to his hands and face.

2.  He was extended on active duty to participate in the Reserve Component Medical Retention Program in order to receive or continue to receive medical assistance.  Although his separation physical is not available for review with this case, it appears that medical authorities at Fort Knox determined he was medically cleared for separation in October 2005 and requested approval from HRC to separate him.

3.  He was honorably released from active duty on 8 October 2005.  His DD Form 214 for this period shows he was released from active duty under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of his required active service.  He was transferred to the control of his State ARNG.  There is insufficient evidence to show he was medically unfit at the time of his release from active duty.  As such, the narrative reason for separation shown on his DD Form 214 appears to be correct and there is insufficient evidence to change it.

4.  The available evidence also shows in May 2008, some 3 years after his release from active duty, he showed symptoms of inability to perform his duties and was issued a physical profile at that time for lower back pain, right wrist pain, major depressive disorder, and PTSD, with functional limitations related to lifting and bending.

5.  It also appears his State Surgeon General reviewed his medical records and determined he was unfit for retention in the ARNG.  The applicant appears to have produced the evidence that shows his condition occurred in or was aggravated by active service.  This warranted his entry into the PDES with subsequent consideration by an MEB and PEB.

6.  The PEB considered his conditions and assigned him a 40-percent disability rating with placement on the TDRL effective 16 September 2008.  This is the date he was determined to be physically disabled, not 8 October 2005, the date he was released from active duty.  There is insufficient evidence to show he was medically disabled on the date he was released from active duty in 2005.  He was ultimately removed from the TDRL and permanently retired on 22 November 2010.

7.  The fact that he was found medically disabled in October 2008 does not mean he was medically disabled in October 2005.  A key element of the Army PDES is the Soldier's condition at the time of separation.  In the absence of corroborating evidence in the form of a physical profile, separation physical, medical diagnosis, or other medical evidence that shows he was medically unfit in October 2005, it must be presumed that he was medically qualified for retention at the time and this is why he was released from active duty after completing his required active service.

8.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the aforementioned circumstances, there is insufficient evidence to grant the 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 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)                                         AR20120022117



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ABCMR Record of Proceedings (cont)                                         AR20120022117



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