IN THE CASE OF:	  

		BOARD DATE:  3 September 2013

		DOCKET NUMBER:  AR20130000481 


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:

* consideration by a Medical Evaluation Board (MEB) and/or a Physical Evaluation Board (PEB) for a traumatic brain injury (TBI)
* any awards he is entitled to as a result of his deployment to Iraq
* assignment to the Army Wounded Warrior (AW2) Program 

2.  The applicant states:

	a.  At the time of his separation he was led to believe the Department of Veterans Affairs (VA) could deliver the same service, benefits, and entitlements.  He knows this was not true at that time and is not true today.

	b.  He served as a civil affairs noncommissioned officer (gunner) from March 2006 through June 2007.  During this time, he was struck about the head by a steel plate dozens of times causing him to see stars.  He specifically sustained a TBI from a large flying object while gunning on 26 January 2007.  His commander was killed in this action and three of his service members were medically evacuated.

	c.  This was verified by his chain of command and sergeant major who also served as a gunner on this mission and ordered him to the combat support hospital after he had complained of ringing in his ears and headache.  The 

team diagnosed him with a TBI and pulled him off the mission for 24 hours as his team recuperated.

	d.  He requested and a number of lines of duty (LOD) were approved on clearing physicals by the commander.  The best advice he had at the time was to clear and see his family soon or face "another in limbo" at Fort Bragg, NC.  He chose to be discharged and he was seen 2 weeks later in Dr. H----- S-----'s office. He has been on Topomax ever since and mostly deals with it, but he now has a seizure disorder.  The debate over when the seizures started is endless.  He is requesting a fair consideration for a man who has put his health on the line for his nation.

3.  The applicant provides:

* Mobilization and deployment orders
* Four DA Forms 2173 (Statement of Medical Examination and Duty Status)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Board of Veterans' Appeals orders
* A letter from the VA certifying his receipt of service-connected disability compensation
* A letter of support from his first sergeant (1SG)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests consideration of the documents provided by the applicant for an MEB, awards, and assignment to the AW2 Program.

2.  Counsel states the applicant was injured during combat operations in Iraq and had documents "solidifying" this.

3.  Counsel provides no additional evidence.

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.  With prior enlisted service, the applicant enlisted in the U.S. Army Reserve (USAR) on 12 December 2005 in pay grade E-4.  He completed training and he was awarded military occupational specialty 38B (Civil Affairs Specialist).

3.  He was ordered to active duty in support of Operation Iraqi Freedom (OIF) on
11 April 2006.  He served in Iraq from 26 April 2006 through 15 April 2007.

4.  He provides copies of four DA Forms 2173, each dated 30 April 2007, that show he was seen as an outpatient at a military treatment facility at Fort Bragg, NC, for:

* hearing loss and tinnitus as a result of an improvised explosive device (IED) blast during his deployment; LOD -- Yes
* right wrist pain as a result of an injury incurred during his deployment; LOD -- (unspecified)
* headaches in theater as a result of an IED blast; LOD -- Yes
* back pain during deployment; LOD -- (unspecified)

5.  On 3 June 2007, he was honorably released from active duty by reason of completion of required active service and he was transferred to a Reserve unit.  He completed 1 year, 1 month, and 23 days of net active service with no time lost.  His DD Form 214 shows he was awarded or authorized the:

* Army Commendation Medal
* Army Good Conduct Medal
* National Defense Service Medal (2nd Award)
* Global War on Terrorism Service Medal
* Iraq Campaign Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Armed Forces Reserve Medal with "M" Device and 20 Year Device
* Combat Action Badge

6.  On 19 August 2008, he was assigned to the Standby Reserve based on his overseas residency/employment.

7.  He was honorably discharged from the USAR on 13 December 2011.

8.  His available records do not contain his service medical records and does not reveal the following:

* Permanent physical profile or finding of medical unfitness
* A finding of a medical condition that did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness)
* A diagnosis for referral to the Army Physical Disability Evaluation System (PDES) 
* A diagnosis of TBI or any condition or injury that rendered him unable to perform the duties required of his grade and military specialty
* Commander's statement of inability to perform the duties required of his grade and military specialty 

9.  He also provides:

	a.  A Board of Veterans Appeals order, dated 9 August 2012, that shows he was awarded an increased rating of 30 percent and 40 percent for residuals of head injury, to include headaches and mild memory loss prior to 23 October 2008.  The order also stated his unemployment had been attributed to his
non-service connected seizure disorder rather than any service-connected disability.

	b.  A letter from the VA, dated 26 September 2012, certifying his receipt of service-connected disability compensation with a 60 percent disability rating.

	c.  A letter from his former 1SG, 404th Civil Affairs Battalion, dated 1 November 2012.  The 1SG stated the applicant was one of the primary gunners for Company B.  He had been on numerous missions where his convoy had come under attack.  On 26 January 2007, they were on a combat patrol and the applicant was his rear gunner.  They came under a severe enemy attack and as a result their company commander was killed and three other Soldiers were wounded in action.  When they returned to the forward operating base, the applicant was complaining of headaches and ringing in the ears.  He ordered the applicant to the troop medical center (TMC) for a medical evaluation.  The results indicated he had a mild concussion and he was ordered to stand-down for
24-48 hours.  During the last 4 months in theater the applicant complained of headaches and ringing in his ears.  He was seen several times at the TMC for his injuries.  He instructed the applicant to get a full evaluation as soon as they demobilized.

10.  The AW2 Program is a U.S. Army program that assists and advocates for severely wounded, ill, or injured Soldiers.  Soldiers who qualify for AW2 are assigned to the Warrior Transition Unit.  To qualify for AW2, a Soldier must suffer from wounds, illness, or injuries incurred in the LOD after 10 September 2001, and receive or expect to receive at least a 30 percent rating from the Integrated Disability Evaluation System (IDES) from one the following conditions, or receive a combined 50 percent IDES rating for any other combat/combat-related condition:

* Post-traumatic stress disorder
* Severe TBI
* Severe loss of vision/blindness
* Severe hearing loss/deafness
* Fatal/incurable disease with limited life expectancy
* Loss of limb
* Spinal cord injury
* Permanent disfigurement
* Severe burns
* Severe paralysis

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 office, grade, rank, or rating.  The regulation states that:

	a.  MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

	b.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

	c.  LOD decisions are reached according to policies and procedures prescribed in Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations).  Copies of the LOD decision, DA Form 2173), or DD Form 261 (Report of Investigation - LOD and Misconduct Status) must be included in the official records of a PEB case.

12.  Army Regulation 40-501, chapter 3, provides that an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.

13.  Army Regulation 600-8-4 states the LOD determination is presumed to be "in LOD - Yes" without an investigation in the case of injuries incurred as a result of enemy action.  In all other cases of death or injury (with two listed exceptions) a LOD investigation must be conducted.

14.  The Veterans Affairs Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

16.  Army Regulation 600-8-22 (Military Awards) states the Iraq Campaign Medal is awarded to members who have served in direct support of OIF.  The area of 

eligibility encompasses all the land area of the country of Iraq, the contiguous water area out to 12 nautical miles, and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 through 
31 December 2011.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  During his service in Iraq, he participated in the following two campaigns:

* National Resolution (16 December 2005 - 9 January 2007)
* Iraqi Surge (10 January 2007 - 31 December 2008)

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was deployed to Iraq from April 2006 through April 2007.  Upon his return on 30 April 2007 he was seen at a medical facility at Fort Bragg for hearing loss and tinnitus as a result of an IED blast, right wrist pain, headaches, and back pain, also occurring during this deployment.  His hearing loss and tinnitus were considered to have been incurred in LOD.  There is no evidence he was diagnosed with headache syndrome and/or tinnitus evaluated as residual to TBI resulting from an IED blast at the time.

2.  No medical evacuation was ever initiated nor is there sufficient evidence he was treated for head injuries or diagnosed with TBI during combat operations during his deployment.  He was issued a DD Form 214 honorably releasing him from active duty on 3 June 2007 by reason of completion of required active service.

3.  His contentions and the documents he provided were carefully considered.  The key element in the disability system is the presence of a medical condition that renders a Soldier unable to reasonably perform the duties required of his office, grade, rank or rating.  There is no evidence of record and he did not provide sufficient evidence to show he was unable to perform the duties required of his grade and military specialty as a result of TBI.

4.  He believes, in effect, that since the VA awarded him service-connected disability for TBI, the Army should have done the same.  However, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and an award of a rating by another agency do not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

5.  In this case, there is no evidence of a single medical condition actively limiting his ability to perform his military duties during his deployment and prior to his discharge from the USAR in 2011.  There was no diagnosis of any conditions that failed retention standards or were being disabling at the time of his release from active duty in 2007 or discharge in 2011.

6.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

7.  With respect to entitlement to additional awards for his period of service in Iraq, the evidence of record shows he participated in two campaigns that entitle him to two bronze service stars for wear on his already-awarded Iraq Campaign Medal.  Therefore, his DD Form 214 should be corrected to show these bronze service stars.

8.  With respect to his assignment to the AW2 Program, the Board does not have the authority to grant the requested relief.  Veterans who meet the eligibility requirements as stated in this Record of Proceedings and who are not currently enrolled should contact the AW2 Call Center for assistance at toll-free
877-393-9058 or email the AW2 Contact Center at usarmy.pentagon.medcom-wtc.mbx.contact-center@mail.mil.

9.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
	a.  deleting from his DD Form 214 for the period ending 3 June 2007 the Iraq Campaign Medal, and

	b.  adding to his DD Form 214 for the period ending 3 June 2007 the Iraq Campaign Medal with two bronze service stars.

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 consideration by an MEB/PEB or assignment to the AW2 Program.



      _______ _  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)                                         AR20130000481



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ABCMR Record of Proceedings (cont)                                         AR20130000481



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