IN THE CASE OF:	  

		BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130000984 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 16 February 2007 to show he was retired by reason of disability vice honorably discharged.

2.  The applicant states:

	a.  On 15 December 2006, he was admitted to an Army hospital in Baghdad, Iraq, for 3 days for a mental disorder that he suffered during his deployment.  On 18 December 2006, he was medically evacuated to Landstuhl Regional Medical Center (LRMC), Germany, and then to Fort Bragg, NC, for further medical evaluation.

	b.  On 13 February 2007, he was honorably released from active duty (REFRAD) and transferred back to his Massachusetts Army National Guard (MAARNG) home unit.  On 23 June 2008, he was honorably discharged from the MAARNG and as a Reserve of the Army.  He wants his [active duty] discharge changed from honorable to discharged (i.e., retired) by reason of a medical condition with all benefits for his 13 years of total service.

3.  The applicant provides:

* a self-authored statement, dated 26 December 2012
* his DD Form 214 for the period ending 16 February 2007
* 
a Standard Form (SF) 504 (Medical Record – History-Part 1)
* Orders 150-207, issued by the MAARNG, dated 30 May 2006

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.  Having had prior active service, the applicant enlisted in the MAARNG on 24 October 2001 and he held military occupational specialty 13B (Cannon Crewmember).  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 13 October 2004.

3.  He was ordered to active duty as a member of his ARNG unit in support of Operation Iraqi Freedom (OIF) and he entered active duty on 15 June 2006.  He served in Iraq from 4 September - 23 December 2006.

4.  The applicant provides an SF 504, dated 23 December 2006, wherein it shows he received a mental status evaluation on that date at Fort Bragg.  This form shows he was referred by the Womack Army Medical Center (WAMC) Emergency Room, Fort Bragg for an evaluation/safety-check after he was returned from Iraq by way of LRMC, Germany, following concerns for his safety.

5.  On the SF 504, the examining physician stated the applicant had no past psychiatric history and that the applicant stated:

	a.  He had been deployed to Iraq for about 1 and 1/2 months when he began to suffer from severe insomnia with only 2 hours of sleep for about seven nights.  He was seen by medical personnel and started on Ambien.  It only helped him with falling asleep but not with frequent awakenings.  He suffered from physical fatigue/exhaustion and he felt that in his sleep-deprived state he exhibited concerning symptoms that alerted his first sergeant to refer him to Mental Health. (emphasis added).  This was due to the appearance of extreme fatigue and an alleged report of having auditory hallucinations that the applicant felt were the result of sleep deprivation and "misunderstandings." (emphasis added).

	b.  He was flown to LRMC, Germany, and treated for 4 days before being flown to Fort Bragg.  Upon leaving LRMC, he was assessed as having "low dangerousness" and returned by commercial flight with a medical attendant.  The plan was for medical/psychiatric clearance prior to return to his MAARNG unit and/or his return to Iraq.

	c.  The applicant also stated his plan was to hopefully spend 2 weeks rest and recuperation leave with his family in Massachusetts and to eventually rejoin his unit to complete his deployment in Iraq.  He continued to maintain zero mood problems and denied having other problems.  He stated his insomnia was resolved and he was getting 6 to 7 hours of sleep each night.

	d.  The examining psychiatrist further stated the applicant's appearance was neat, he maintained good eye conduct, he was alert and fully oriented, he had normal speech/motor, and exhibited appropriate and cooperative behavior.  He had no paranoia or delusions and he had stated he felt fine. (emphasis added).  He denied using drugs, stated he was married with two children, and that he had no financial or legal concerns.

	e.  The examining psychiatrist determined the applicant's probable mood of depression, sleep deprivation/insomnia were resolved and he psychiatrically cleared the applicant.

6.  The Commander, 2125th Garrison Support Unit, Fort Bragg, by memorandum, dated 23 January 2007, submitted a request to the U.S. Army Human Resources Command (HRC), for early REFRAD for the applicant.  He stated the applicant's attending physician recommended the applicant be released from the Medical Retention Processing Unit for demobilization processing and released to his unit in a Reserve status.  This request was subsequently approved by HRC.

7.  On 16 February 2007, he was honorably REFRAD to the control of his MAARNG unit.  He completed 8 months and 2 days of net active service this period.

8.  Item 28 (Narrative Reason for Separation) of the DD Form 214 he was issued at the time shows he was REFRAD by reason of completion of required active service.

9.  There is no evidence of record that shows while serving on active duty he was diagnosed with post-traumatic stress disorder (PTSD) or any disorder/illness that prevented him from performing his assigned duties, rendered him unfit for duty, or would have required referral to a medical evaluation board (MEB) or a physical evaluation board (PEB).

10.  His record contains a memorandum from the Deputy Chief of Staff, Personnel, MAARNG, dated 7 May 2007, wherein it stated a Medical Profiling and Record Review Board found the applicant was fully fit for duty.

11.  On 13 June 2007, he completed a DD Form 2795 (Pre-Deployment Health Assessment) wherein he checked the appropriate blocks to indicate he was in excellent health, he did not have any medical problems at that time, had not sought counseling or care for his mental health in the past year, and he did not have any concerns about his health at that time (emphasis added).  He placed his signature next to the block that stated "I certify that all responses on this form are true."

12.  In a letter to his commander, dated 23 June 2008, the applicant stated he had been under medical care at the Department of Veterans Affairs Medical Center (VAMC), Bedford, MA, since his return from Iraq and since then he had been suffering from chronic PTSD.  He had been rated as 100-percent disabled by the VA and, at the advice of his doctors, he was requesting to be discharged from the MAARNG.  Due to his mental disorder, he was no longer able to continue his duties as a Soldier and was requesting he be medically discharged from the MAARNG.

13.  Orders 206-013, issued by the MAARNG, Office of the Adjutant General, Milford, MA, dated 24 July 2008, honorably discharged him effective 23 June 2008.

14.  On 23 June 2008, he was honorably discharged from the ARNG in the rank of SSG.  Item 18 (Remarks) of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) contains the statement "Soldier was discharged without personal notice due to constructive notification by the Office of The Adjutant General.

15.  Item 23 (Authority and Reason) of his NGB Form 22 shows he was discharged under the provision of Army Regulation 40-501 (Standards of Medical Fitness) by reason of being medically unfit for retention.

16.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommended the applicant be voluntarily reinstated in the MAARNG for the purpose of being processed through the Physical Disability Evaluation System (PDES).  The advisory official opined:

	a.  The applicant was evacuated from Iraq prior to the end of his deployment for medical reasons, he was evaluated at Fort Bragg, and returned to his unit in Massachusetts.  There was no line of duty or other types of medical review documents in his record.  However, there was a memorandum, dated 7 May 2007, that indicates he was found fully fit for duty.

	b.  His NGB Form 22, with an effective date of 23 June 2008, lists his reason for separation as medically unfit for retention per Army Regulation 40-501.  There are no documents that explain why he was separated under this authority.  According to the Chief, Surgeon Division, NGB, the proper procedure would have been to counsel the applicant prior to his discharge on the potential for PDES processing versus continuing his discharge proceedings.  Based on the counseling, he would have received information regarding potential pros and cons to both courses of action and he would have been able to make an informed decision.  There is nothing that shows he was afforded this opportunity.

	c.  The applicant should be voluntarily reinstated into the MAARNG for the purposes of the PDES processing only.  The Office of the State Surgeon General (OTSG) should contact him to arrange for a physical evaluation.  In the event he requires an MEB or PEB, he would be afforded all the benefits afforded to individuals on active duty who are undergoing an MEB/PEB.  Should a determination be made that he should have been separated under the PDES, these proceedings would serve as the authority to void his discharge and issue him the appropriate separation retroactive to his original separation date.

17.  In a response to the advisory opinion, dated 19 May 2013, the applicant stated he disagreed with the advisory opinion.  He further stated:

   a.  He believed a medical evaluation at this time would not be the same as if it had been done in December 2006 when he was sent from Iraq to WAMC, Fort Bragg.  Since he had been home from Iraq, he had been seeking treatment from the VA and had been diagnosed with a chronic case of PTSD.

	b.  A medical evaluation conducted in June 2007 at the VA medical facility in Boston determined his injuries were combat-related and he was awarded 100 percent disability at that time.  On 13 June 2008, a second evaluation was conducted by a different VA doctor and his diagnosis of chronic PTSD caused by combat was the same as the first doctor.

	c.  He believed the OTSG should get his records from the VA and could use them to make a decision in his case.  He was also attaching a list of all the medications he was currently taking and more records that might be needed to make their decision.

18.  With his response to an advisory opinion, the applicant provides an SF 600 (Chronological Record of Medical Care), dated 18 January 2007, wherein it shows he was seen at the Medical Holdover Clinic, WAMC, Fort Bragg for the purpose of a REFRAD examination.  The form showed he was being seen for a diagnosis of adjustment disorder and sinus tachycardia. The examining physician stated the applicant had been cleared by Psychiatry but his commander stated he did not want him to redeploy to Iraq.  The examining physician cleared him for REFRAD and released him without limitations with a recommendation for follow-up care as needed.

19.  The applicant also provided a letter, dated 13 May 2013, wherein a psychiatrist with the VA stated he initially sought treatment in April 2007 at the VAMC in Bedford, MA.  He was rated at 100 percent service-connected disability for PTSD.  He had also been diagnosed with major depressive disorder with psychotic features/psychotic disorder (nonspecific).  He displayed severe symptoms of combat-related PTSD that had severely impaired his functioning; specifically, his ability to work.

20.  The applicant further provided a letter from the VA in Boston, dated 13 June 2013, wherein it stated they made a decision on his claim for an increase in his service-connected compensation.  They denied his request and determined his service-connected conditions of PTSD rated at 100 percent and hypertension rated at 10 percent had not changed and his compensation payment would remain the same.

21.  He also provided two orders and four pages titled "Patient Medication Worksheet."

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states:

	a.  MEB/PEBs 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 qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

	b.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement or severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

23.  Army Regulation 635-40 further states 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired.

24.  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 Veteran's Administration Schedule for Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

25.  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 at less than 30 percent.

26.  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, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  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.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show he was retired by reason of disability vice honorably discharged.

2.  The evidence of record confirms that while the applicant was serving on active duty, he was never diagnosed with PTSD or any disorder/illness that prevented him from performing his assigned duties, rendered him unfit for duty, or would have required referral to an MEB/PEB.

3.  Although he was returned from Iraq for a mental health evaluation following concerns for his safety after exhibiting erratic behavior, this appears to have been a temporary condition.  In December 2006, he underwent a mental health evaluation at Fort Bragg.  He told the examining psychiatrist he had suffered from severe insomnia while deployed and he felt his behavior was due to sleep deprivation.  He further stated he felt fine, his insomnia was resolved, and he had no mood or other problems.  He wanted to spend 2 weeks with his family in Massachusetts and then rejoin his unit in Iraq.

4.  The examining psychiatrist determined the applicant's probable mood of depression, sleep deprivation/insomnia were resolved, and he was psychiatrically cleared.  In January 2007, he underwent a medical examination and the examining physician cleared him for REFRAD.  As he was found to be mentally and medically fit, he was appropriately REFRAD on 16 February 2007 to the control of the ARNG.

5.  In addition, in May 2007 an MAARNG Medical Profiling and Record Review Board found at that time the applicant was fully fit for duty (emphasis added).  Furthermore, in June 2007, the applicant himself completed a DD Form 2795 and indicated he was in excellent health and did not have any medical problems at that time (emphasis added).

6.  A disability decision rendered by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining a Soldier's fitness to perform military duties.  The VA may award ratings because of a service-connected disability that was incurred in or aggravated by active military service that affects the individual's civilian employability.

7.  Nevertheless, the applicant's NGB Form 22, with an effective date of 23 June 2008, lists his reason for separation as medically unfit for retention per Army Regulation 40-501.  There are no documents that explain why he was separated 

under this authority.  According to the Chief, Surgeon Division, NGB, the proper procedure would have been to counsel the applicant prior to his discharge on the potential for PDES processing versus continuing his discharge proceedings.  Based on the counseling, he would have received information regarding potential pros and cons to both courses of action and he would have been able to make an informed decision.  There is nothing that shows he was afforded this opportunity.

8.  While it is premature to medically retire him with a 100 percent disability rating, he is entitled to at least a determination of fitness.  The only way to determine if he was medically unfit at the time of separation is to send his records before an MEB.

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:

* having OTSG contact the applicant and arrange a physical evaluation via appropriate medical facilities and, if appropriate, referral to an MEB
* directing OTSG to issue appropriate invitational travel orders to the applicant to accomplish the physical evaluation and, if appropriate, the MEB
* directing OTSG to issue appropriate invitational travel orders to the applicant to prepare for and participate in consideration of his case by a formal PEB in the event that a PEB becomes necessary

2.  The Board further determined 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 medical retirement at this time.



      ___________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)                                         AR20130000984



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ABCMR Record of Proceedings (cont)                                         AR20130000984



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