IN THE CASE OF:	  

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20120022475  


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, in effect, correction of his record to show he was medically retired.

2.  He states, in effect, he was improperly denied the opportunity to have his medical records reviewed by a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB).  He was discharged from the Virginia Army National Guard (VAARNG) in 2004 because he did not meet retention standards due to a preexisting condition.  His discharge contradicts Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), which states the PEB is the sole body within the Army that can determine a Soldier's fitness.  A unit cannot determine fitness, and his discharge was unjust.  The State Adjutant General states he was diagnosed with post-traumatic stress disorder (PTSD) in 2006, which is not true.  He was diagnosed at a National Guard medical treatment facility on 23 November 2003 after he was referred by his commander.  He received a Department of Veterans Affairs (VA) service-connected disability rating, effective 17 December 2004, the same year he was discharged.  The State Adjutant General further stated there was no documentation of aggravation of his symptoms.  He is saddened that his unit stated there was no documentation of his symptoms.  He is appealing to this Board because he has exhausted all other administrative remedies.

3.  He provides:

* a self-authored statement
* correspondence from the Adjutant General, Commonwealth of Virginia
* records pertaining to his discharge from the VAARNG
* several pages from a website 
* excerpts from Army Regulations 40-501 (Standards of Medical Fitness), 135-178 (Enlisted Administrative Separations), and 635-40 
* service and VA medical records
* VA records pertaining to his service-connected disability rating
* correspondence from the Chief, Review Boards Office, Department of the Air Force
* correspondence from the Social Security Administration

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 11 May 1988, the applicant enlisted in the Regular Army (RA).  

3.  His record shows he served in Saudi Arabia from 6 October 1990 to 3 April 1991.  

4.  On 15 February 1996, he was honorably discharged from the RA, and he enlisted in the VAARNG.  

5.  On 25 November 1996, he was discharged from the VAARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

6.  Effective 21 October 1997, he was released from the USAR Control Group (Annual Training) and assigned to a USAR unit.  Effective 24 August 2001, he was honorably discharged from the USAR.

7.  On 22 August 2002, he enlisted in the VAARNG.  On 5 April 2004, he was honorably discharged from the VAARNG by reason of being medically unfit for retention.  

8.  His complete service medical records are not available for review.

9.  He provides numerous documents in support of his application.  

	a.  A Standard Form 600 (Chronological Record of Medical Care) shows he was seen by the Social Services Section at Madigan Army Medical Center on 28 September 1994.  The form shows the note "suffering psychosocial function" and the note "stress/depression…currently on Zoloft-Prozac (Desert Storm)."  

	b.  Page 3 of a DD Form 2808 (Report of Medical Examination) signed by a physician on 19 August 2002 shows his records indicated he had a stress disorder since 1991-1992 after serving in Saudi Arabia and Kuwait.  This form shows a further review was requested because the applicant was using Zoloft.  

	c.  An untitled document, dated 21 November 2003, showing he was screened by a Medical Corps officer who found that he was non-deployable for the following reasons:

* "depression, stress currently taking psychotropic medications"
* "medication side effects could be problematic [in a] tactical, hot environment"
* "hypertension"
* he was recommended for discharge in accordance with paragraph
3-32c, Army Regulation 40-501

	d.  An undated Standard Form 600 bearing the heading "FITNESS FOR DUTY EVALUATION" shows diagnoses of depression, anxiety, and high blood pressure.  This form also indicates he had family problems and he was being followed at a VA clinic for anxiety.  He did not meet the standards of Army Regulation 40-501, paragraph 3-32c.  This form was signed by a Medical Corps officer.  

	e.  A DA Form 4856 (General Counseling Form) shows he was counseled on 23 November 2003 regarding his pending discharge from the VAARNG for being medically unfit for retention in accordance with Army Regulation 40-501, paragraph 3-32c, and National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1).

	f.  A partial copy of a VA Rating Decision, dated 20 September 2006, shows he was granted a 50 percent service-connected disability rating for "major depression, also claimed as PTSD" effective 17 December 2004.  The Rating Decision indicates his service medical records showed he had been diagnosed with depression on 28 September 2004 and 19 August 2002 due to his service in the Persian Gulf.  On 27 October 2005, he was diagnosed with recurrent major depressive disorder, and on 1 August 2006, he was diagnosed with PTSD due to a previously corroborated stressor of an explosion in Iraq for which service connection had been established for his skin conditions.  

	g.  A VA Rating Decision, dated 15 July 2008, shows his service-connected disability rating for major depression, also claimed as PTSD, was increased to 70 percent effective 15 November 2006, and an evaluation of 100 percent was assigned from 25 September 2007.  

	h.  A letter, dated 24 July 2009, from the Director, PTSD Program, Hunter Holmes McGuire VA Medical Center, Richmond, VA, written to the Board of Veterans Appeals, shows the applicant was initially assessed as meeting the clinical criteria for PTSD on 26 September 2005.  He was later diagnosed with concurrent major depressive disorder, recurrent, severe, without psychotic features.  He was enrolled in a 10-12 week PTSD educational series that he was unable to complete, but he had been seen for individual follow-up for PTSD.  The author of the letter stated it was his professional opinion that the applicant met the diagnostic criteria for PTSD.  He noted the applicant had reported serving for 6 months in Kuwait and Iraq.  While in Iraq, an artillery shell hit the tent he had just been in and a gas canister blew up in his face.  This caused injuries to his face as well as a rash and skin irritation that continued to affect him.

	i.  A memorandum, subject:  Request for PEB Consideration, dated 19 September 2012, shows the Virginia Adjutant General denied his request to be processed by an MEB.  The memorandum shows he was discharged from the VAARNG in 2004 by reason of being medically unfit for retention "as a result of a pre-existing condition from the Active Component."  The memorandum indicates the applicant's request was based on his diagnosis of PTSD by the VA in 2006.  The Virginia Adjutant General stated the applicant should request consideration for an active component MEB through this Board.

10.  National Guard Regulation 600-200, paragraph 6-35 (formerly paragraph 
8-35), lists the reasons for discharge from the ARNG.  Paragraph 6-35l(8) provides for the discharge of Soldiers found medically unfit for retention per Army Regulation 40-501.  Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination.  Commanders who do not recommend retention will request the Soldier's discharge.  When a medical condition was incurred in the Line of Duty (LOD), the procedures of Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations) will apply.  Discharge will not be ordered while the case is pending final disposition.  

11.  Army Regulation 135-178 states:

	a.  Discharge will be accomplished when it has been determined a Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is:

		(1)  Granted a waiver under Army Regulation 40-501, as applicable.

		(2)  Determined fit for duty under a non-duty related PEB fitness determination.

		(3)  Eligible for transfer to the Retired Reserve.

	b.  A Soldier who does not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training, will be processed as specified in Army Regulation 
635-40 if otherwise qualified.

12.  Army Regulation 600-8-4 prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  It provides standards and considerations used in determining LOD status. 

	a.  Paragraph 2-3a states an LOD determination is presumed to be "Yes" without an investigation in the case of disease.  A formal investigation is required if:

		(1)  an injury, disease, death, or medical condition occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence; or 

		(2)  when a USAR or ARNG Soldier serving on an active duty tour of
 30 days or less is disabled due to disease.

	b.  Paragraph 4-8f(3) states any physical condition having its inception in LOD during one period of service or authorized training in any of the Armed Forces that recurs or is aggravated during later service or authorized training, regardless of the time between, should be in LOD. 

13.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and 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.  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.

14.  Army Regulation 635-40, chapter 4, contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  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.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  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.

15.  Army Regulation 40-501 governs medical fitness standards for retention and separation, including retirement.  

	a.  Paragraph 3-32 states mood disorders may be cause for referral to an MEB if there is: 

		(1)  Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or

		(2)  Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or

		(3)  Persistence or recurrence of symptoms resulting in interference with effective military performance.

	b.  Chapter 10 provides the basic policies, standards, and procedures for medical examinations and physical standards for the ARNG.  Paragraph 10-25 states, in part, Soldiers pending separation for injuries or illnesses incurred in the LOD will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence indicates the applicant was diagnosed with a stress disorder and depression while he was serving in the RA.  The available evidence further shows depression was the basis for the applicant's discharge from the VAARNG.  There is no documentary evidence that would contradict a presumption that the condition was incurred in LOD.  

2.  Even though the applicant's condition originated while serving in the RA many years earlier, by regulation the VAARNG still had the responsibility to refer him for processing through the PDES.  Notwithstanding the fact that several years have passed since he was discharged from the VAARNG, he should now be afforded the opportunity to be processed through the PDES for a determination of fitness.  

3.  The applicant requests that he be medically retired.  To do so would be premature.  If warranted based on MEB/PEB findings, the proper authority will direct such action be taken.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by the OTSG contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant.

	a.  In the event a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.

	b.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

	c.  If a determination is made that he should have been separated through the PDES, these Proceedings serve as the authority to:
      
* void his administrative discharge from the ARNG
* issue the appropriate disability separation 
* pay him all back retired/severance pay less any entitlements already received

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to medically retiring him.



      _______ _   _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)                                         AR20120022475



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ABCMR Record of Proceedings (cont)                                         AR20120022475



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