IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130001692 


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 that his records be corrected to show he was retired by reason of physical disability.

2.  The applicant states he should be medically retired because he was wounded by enemy explosives and was treated for post-traumatic stress disorder (PTSD) and psychological trauma sustained on active duty in Iraq due to combat exposure.  He goes on to state that his inability to function normally as a result thereafter and through the time of his discharge from active duty in 2005 impaired his judgment during his terminal leave and discharge process. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his medical records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s records be corrected to show he was medically retired on 27 April 2005 instead of being released from active duty (REFRAD).

2.  Counsel states, in effect, that the applicant sustained PTSD, traumatic brain injury, and tinnitus from a mortar blast in Iraq which prevented him from separating from service in a knowing and informed fashion. 

3.  Counsel provides additional copies of Department of Veterans Affairs (VA) and military medical records.
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.  The applicant served in the U.S. Navy from 8 January 1991 until he was honorably REFRAD on 13 January 1992 due to a condition (not a physical disability) interfering with the performance of duty.

3.  On 24 April 1999, he enlisted in the New York Army National Guard (NYARNG) with a waiver for a period of 6 years. 

4.  On 1 October 2003, he was ordered to active duty in support of Operation Iraqi Freedom and he deployed to Kuwait/Iraq during the period 20040226 – 20041231.

5.  On 27 April 2005, he was honorably REFRAD due to completion of required service.  He had served 1 year, 6 months, and 27 days of active service this period.  He was awarded the Combat Infantryman Badge and Purple Heart during that tour.

6.  His NCO Evaluation Report (NCOER) for the period ending November 2005 shows he was fully capable of performing all his military duties.

7.  On 23 April 2006, he was honorably discharged from the NYARNG and the U.S. Army Reserve due to the expiration of his term of service (ETS).  He was issued a Reentry (RE) Code of “1.”

8.  A review of his records shows that he was seen by the combat stress team two or three times and he claimed he had acute PTSD during his post deployment survey.

9.  Although the VA Rating Decision is not contained in the available records, VA Progress notes dated in 2010 and provided by the applicant indicate that the applicant is currently 100% service-connected for PTSD and major depression.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

11.  Army Regulation 635-40 states that 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

12.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a VA rating does not establish error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further 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 affects the individual's employability.

DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, it appears the applicant was properly REFRAD in accordance with the applicable laws and regulations with no indication of any violations of any of his rights.

2.  Accordingly, he was properly returned to his NYARNG unit where he continued to serve until he was honorably discharged due to the expiration of his term of service and was assigned a RE Code of “1” which indicates that he was eligible for reenlistment. 

3.  The totality of the evidence, including the medical records most proximate to the applicant’s discharge, overwhelmingly support the conclusion that the applicant, upon his separation, met medical retention standards and did not have a condition warranting a Medical Evaluation Board/Physical Evaluation Board or entry into the Physical Disability Evaluation System (PDES).  His NCOER for the period ending November 2005 shows he was capable of performing his duties.

4.  There is no evidence to show he was not properly diagnosed at the time or that his discharge was not conducted in accordance with the applicable laws and regulations then in effect.

5.  Accordingly, there appears to be no basis to grant the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   _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)                                         AR20130001692





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130001692



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1