IN THE CASE OF:	  

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20130001757


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.  This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. Court of Federal Claims.  The court directs the ABCMR to:

	a.  Reassess the applicant's separation from active duty and determine whether he should have been discharged due to medical disability in accordance with Army regulations.  Such regulations include but are not limited to Army Regulation (AR) 40-400 (Patient Administration) and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  AR 635-40 has been amended since the applicant's release from active duty.  The Board shall apply the version of AR 635-40 in effect when the applicant was discharged from active duty in January 2006.

	b.  Determine whether referral to a Medical Evaluation Board (MEB) and potentially a Physical Evaluation Board (PEB) is appropriate at this time, and document the rationale for its determination.

	c.  In the event the ABCMR and/or an MEB or a PEB determine that the applicant was unfit for duty at the time of his discharge, the Board shall identify the date on which he would have been discharged from active duty due to disability.  This will require the ABCMR to determine how many days it would have taken to perform the requisite Post-Deployment Health Reassessment, any follow-up evaluations by an MEB or PEB, and any other requisite actions before discharging the applicant.
2.  The applicant filed, through counsel, a complaint with the U.S. Court of Federal Claims wherein counsel alleges his client should have been medically retired vice honorably released from active duty in January 2006.  The Remand Order contains a section titled "Finding of Facts" derived from the record.  The "Findings of facts" is a summary of the applicant's military service, a discussion of his January 2006 DA Form 2173 (Statement of Medical Examination and Duty Status), his service in the ARNG and post-active duty medical history, the Army's procedure on releasing him from active duty, and a discussion of the Army Personnel Policy Guidance.  Counsel then argues that: 

* The Army failed to document the applicant's treatment while he was still deployed
* The Army failed to provide the applicant a medical briefing when he was redeployed
* The Army delayed affording the applicant a post-deployment health reassessment until almost 1 year after his deployment, in violation of Army requirements that this assessment be done within 30 days
* The Army did not comply with its procedures when it released the applicant from active duty and failed to conduct a post-deployment health reassessment
* The Army did not comply with its procedures when it released the applicant and failed to determine if he needed to be referred to an MEB

3.  The applicant and/or counsel provide:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2900 (Post-Deployment Health Reassessment (PDHRA))
* Medical Extension Processing 2 (MRP2) Initial Packet Checklist
* Request for Medical Retention Processing 2 (MRP2) memorandum
* DA Form 4187 (Personnel Action)
* Soldier Counseling Statement for MPR2 Status
* Leave Statement of Understanding
* Orders 209-578 (mobilization)
* Orders 011-247 (amendment of mobilization orders)
* Orders 012-75 (Unit temporary change of station (TCS) orders)
* 2007 Progress Notes - Department of Veterans Affairs (VA)
* DA Form 2173, dated in July 2006
* DA Form 2173, dated 1 January 2006
* DA Form 2173, dated 29 March 2010
* Line of Duty Determination memorandum
* DD Form 2697 (Report of Medical Assessment)
* 2008 VA rating decision
* PDES [Physical Disability Evaluation System] Commander's Performance and Functional Statement for [Applicant]
* Leave of Absence Request Form
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 1 November 2006 through 31 October 2007
* DA Form 7574-2 (Soldier's Acknowledgement for Incapacitation Pay Counseling)
* Multiple DA Forms 7574 (Incapacitation Pay Monthly Claim Form)
* July 2007 Leave and Earnings Statement
* DA Form 2823 (Sworn Statement)
* Additional VA Progress Notes

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 13 November 1985.  He completed basic and advanced individual training and he was awarded military occupational specialty (MOS) 12B (Combat Engineer).  He was honorably discharged on 22 September 1994 by reason of completion of his required active service.

2.  On 31 July 2002, he enlisted in the Mississippi Army National Guard (MSARNG).  He completed the required training and he was awarded MOS 19K (M-1 Armor Crewmember).  He was assigned to Troop A, 98th Armor Cavalry Regiment, Camp Shelby, MS.  He was promoted to staff sergeant (SSG)/E-6 on 12 January 2003.

3.  Orders 209-578, issued by The Adjutant General's Office, MSARNG, dated
27 July 2004, ordered him to active duty in support of Operation Iraqi Freedom for a period not to exceed 545 days, beginning on 17 August 2004 and ending on 12 February 2006 (later amended to end on 21 January 2006).

4.  Based on these orders, he entered active duty on 17 August 2004 and subsequently served with Troop A, 98th Armor, in Kuwait/Iraq from 12 January 2005 to 28 December 2005.

5.  On 3 January 2006, the Mobilization Center Shelby, Camp Shelby, MS, published Orders 003-0059 ordering his release from active duty, not by reason of physical disability, effective 21 January 2006.

6.  As a result, he was honorably released from active duty by reason of completion of his required service on 21 January 2006 to the control of his State. He completed 1 year, 5 months, and 5 days of creditable active service.

7.  He received an annual NCOER for the rating period November 2004 through October 2005 for his duties as a section sergeant.  This NCOER shows:

* he received an "Excellence" rating in the "Competence" block of Values/NCO Responsibilities with positive comments
* he received a "Needs Improvement" rating in the "Physical Fitness and Military Bearing" block with the comment "has not maintained a physical fitness program for himself nor has he encouraged junior NCOs and enlisted Soldiers to do so"
* he passed the Army Physical Fitness Test (APFT) and met the height and weight requirements
* he received a "Fully Capable" rating for overall performance by his rater
* he received a "Successful" rating for overall performance and "Superior" rating for potential by his senior rater

8.  He also received an annual NCOER for the rating period November 2005 through October 2006 for his duties as a squad leader.  This NCOER shows:

* he received a "Success" or "Excellence" rating in the areas of Values/NCO Responsibilities, with laudatory comments
* he did not take the APFT due to being deployed but met the height and weight requirements
* he received an "Among the Best" rating for overall performance by his rater
* he received a "Successful" rating for overall performance and "Superior" rating for potential by his senior rater

9.  Subsequent to his release from active duty, he:

* executed a 1-year extension of his enlistment in the ARNG on 30 July 2007
* executed a 1-year extension of his enlistment in the ARNG on 21 May 2008 that adjusted his expiration of his term of service (ETS) date to 30 July 2009

10.  He also received an annual NCOER for the rating period November 2006 through October 2007 for his duties as a squad leader.  This NCOER shows:

* he received a "Success" or "Excellence" rating in areas of Values/NCO Responsibilities, with laudatory comments
* he did not take the APFT due to "injury in Iraq" but met the height and weight requirements
* he received an "Among the Best" rating for overall performance by his rater
* he received a "Successful" rating for overall performance and "Superior" rating for potential by his senior rater

11.  The NCOER for the annual rating period November 2007 through September 2008 was authenticated by the applicant and his rating chain, but contains no ratings or markings.

12.  On 8 January 2009, The Adjutant General's Office, MSARNG published Orders 268-805 ordering his honorable separation from the ARNG by reason of expiration of term of service.  He was issued a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that captured his ARNG service from 31 July 2002 through 23 September 2009.

13.  The only medical document contained in his official personnel record is a
DA Form 3349 (Physical Profile), dated 26 February 2008, "Permanent" for major depression.  The profiling officer entered the following comments:

Under care for diagnosis noted for over a year; physician states need individual counseling, medications, and long term treatment; cannot be deployed to area that does not have ready access to mental health treatment; condition may be worsened by military environment and common Soldier tasks and requirements of MOS; prognosis is fair.

14.  His official records do not contain his 2006 separation physical.  However, the following documents were provided with his application:

	a.  DA Form 2823, dated 25 June 2005, wherein Sergeant First Class (SFC)
A---s states his crew, which included the applicant and four other Soldiers, was the last vehicle in a convoy that was hit by an improvised explosive device (IED) on 20 May 2005.  The IED detonated about 3 meters from the right side of his (the author's) vehicle.  One of the sergeants was injured and he was assisted by the other three, including the applicant.  The crew was disoriented and dazed due to the blast.  The vehicle was damaged and the injured Soldier was medically evacuated.  The next morning, the other three Soldiers went to the battalion aid station (BAS) complaining of headaches, hearing loss, and loud ringing.

	b.  DA Form 2173, dated 1 January 2006, that shows a boiler-plate entry at the bottom the entry "Service member was deployed to Kuwait and Iraq (January 2005 to January 2006).  SM was subjected to continuous operational conditions and exposure to human waste, indigenous plants and animals, composite material fires, petrochemical waste and fumes, gases and dust of unknown origin, continuous loud noise exposure, blood borne pathogens, and airborne pathogens.  SM was also exposed to infectious disease to include but not limited to leptospirosis, leishmaniasis, tuberculosis, hepatitis, and malaria.  SM was subjected to extreme exposure to sun and ambient temperatures.  Personal hygiene with no potable water was conducted throughout SM's 1-year deployment.  He was required to wear body armor, ceramic ballistic plates and Kevlar continuously throughout deployment which may result in claims of knee injuries, shoulder and back pains or problems or other ailments related to continuous wear of [incomplete sentence]."  

	c.  DD Form 2697, dated 3 January 2006, wherein the applicant stated his overall health was the same since his last medical examination.  He listed a kidney stone and chest pains as his major concerns and stated his chest pops when he coughs or sneezes and that he hears noises, such as crickets and chirping.  The form is authenticated by a Medical Corps captain who stated the applicant's kidney stone passed on its own, he had chest pains since mobilizing, he was positive for Purified Protein Derivative (PPD), he hears noises, and he was exposed to noise.  The captain referred him to the VA hospital for further evaluation and found him medically qualified for separation (demobilization).  In summary, this form shows the applicant provided significant information as follows: 

* his health was the same as prior to deployment
* since his last medical assessment (pre-deployment) he had been seen or treated by a health care provider for kidney stone (no other reason stated for seeing a medical provider)
* he complained of hearing a chirping noise and cited "generators" as his source of noise exposure

	d.  Soldier's counseling statement for MPR2 status wherein the applicant indicated he had been placed on a leave of absence from his civilian job for an undermined amount of time due to combat illnesses.  He added he had been unable to work from 21 January 2006 until 21 August 2006 and from 5 March 2007 until the present due to the stresses of post-traumatic stress disorder (PTSD), Major Depressive Disorder (MDD), adjustment disorder, and anxiety attacks.  With all his trips to the doctor and lack of income, his family was experiencing great financial hardship.  This hardship had caused a huge strain on his family life and marriage.  Having to cope with the medical issues and the financial burden has become overwhelming.

	e.  DA Form 2173, dated 22 July 2006, that shows the entry "SM [Service member] complained of social and [illegible word] problems, would like to see VA medical provider."  The commander stated at the bottom of this form "SM requires further medical evaluation in accordance with the Secretary of Defense PDHRA Directive Military Personnel Message 05-273, dated 3 November 2005." This form is signed by H---l M-----k as the attending physician or treatment administrator.

	f.  PDHRA, dated 4 December 2006 that shows he stated since his recent deployment, he rated his health "somewhat better now than before I deployed." He listed health concerns regarding headaches, back pain, chest pain or pressure, dizziness/fainting/light headedness, problems sleeping, increased irritability, and taking more risks such as driving faster.  He also listed his major concerns during deployment were smoke from burning trash, vehicle/truck fumes, loud noises, excessive vibrations, sand/dust, and blast/motor accidents.  The provider opined that after her interview with the applicant, she had some concerns about the applicant's physical symptoms and major concerns about depression symptoms and PTSD.  The provider further provided the applicant with health education and information but no referral to a healthcare or support system was listed.  The applicant reported excessive use of alcohol.  Additionally, he answered in the negative to the question "Are you currently interested in receiving information or assistance for a stress, emotional, or alcohol concern?"

	g.  Audiological Evaluation, dated 26 December 2006, that shows the applicant's chief complaint was bilateral tinnitus that he first noticed upon leaving Iraq in January 2006.

	h.  VA progress notes that show he was seen on 26 February 2007 for a PTSD consult.  He related lack of motivation and desire, bad mood, lack of sleep, irritability, and anger.  He admitted to drinking recently in order to deal with financial stressors and stress on the job.

	i.  Leave of Absence Request Form, dated 2 March 2007, that shows the applicant requested a leave of absence from his civilian employer from 5 March 2007 to a future unknown date due to PTSD.

	j.  VA progress notes that show the applicant was seen on 7 March 2007 after he had an altercation with his boss and he asked for time off.  He felt agitated, irritable, frustrated, and anxious. 

	k.  VA progress notes that show he was seen on 5 April 2007.  The VA official diagnosed him with essential hypertension and indicated this diagnosis occurred after his return from Iraq.  The VA official was unable to ascertain if this condition existed while deployed.  He was also diagnosed with mild allergic rhinitis/sinusitis; tension headaches (mild-moderated and stress-related); hearing loss/tinnitus; psoriasis (mild to moderate); lumbar sacral spine strain (resolved); and positive PPD, also referred as Latent Tuberculosis Infection.

	l.  DA Form 4187, dated 11 May 2007, wherein the immediate commander recommended MPR2.  Along with the form was a commander's memorandum stating he counseled the applicant about MRP2 and Incapacitation Pay.  The commander verified the applicant was mobilized in support of contingency operations and he recommended the applicant return to MPR2.

	m.  Multiple Incapacitation Pay Monthly Claim Forms for the months of March through December 2007 and January through September 2008.

	n.  VA rating decision, dated 22 August 2008, that shows he filed a VA claim on 30 May 2008, together with VA progress notes, and he was awarded service-connected disability compensation for:

* PTSD including depression, increased from 30 percent to 100 percent, effective 30 May 2008
* Headaches and memory loss, residuals of traumatic brain injury (TBI), 10 percent, effective 27 July 2007

	o.  Commander's letter of evaluation, dated 10 February 2009, that shows the immediate commander stated the applicant could not drill and he was receiving 100 percent VA compensation.  His duty performance was unsatisfactory.  His physical impairments prevented him from fulfilling the requirements of his MOS.  His disability prevented the unit from utilizing him properly.  He did not attend drills and annual training due to medical and psychological impairments.  He had not taken the APFT since returning from Iraq in 2006 and had been under VA hospital care.   He was recommended for processing through the Army Physical Disability Evaluation System (PDES).  

	p.  A statement by the unit commander, dated 10 February 2009, wherein he states with regard to the applicant's performance and functional ability, he could not effectively answer because he was in the ARNG and the applicant was required to drill once a month.  He was on medical hold since his return from Iraq and he was not required or authorized to drill.

	q.  DA Form 2173, dated 29 March 2010, that shows the entry "PDHRA Screening Program" for "PTSD" and "SM complains of social and physical symptoms, would like to see VA Medical Provider."  This form is signed by
H---l M-----k, PA, and dated 22 July 2006.  The bottom of this form states "he requires further medical evaluation in accordance with Secretary of Defense PDHRA directive, Military Personnel (MILPER) Message 05-273, dated
3 November 2005.

15.  AR 635-40 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.  Paragraph 3-1 states that 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 or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

16.  AR 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 VA Schedule for Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of
10 percent.

17.  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.

18.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 

19.  AR 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.   AR 635-200, chapter 4 provides that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.  Paragraph 1-33 (Disposition Through Medical Channels) states that except in separation actions under chapter 10 (Discharge in lieu of trial by court-martial), disposition through medical channels take precedence over administrative separation processing.  
20.  AR 40-400 assigns responsibilities and provides guidance on patient administration in Army regional medical commands (RMCs) and MTFs.  Paragraph 7-1 states physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 referring them to the PDES.  Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the MMRB.  If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the PEB liaison officer (PEBLO).  MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the member's medical status.  

21.  The consolidated Personnel Policy Guidance (PPG) was originally approved for release in All Army Activities (ALARACT) Message 086-2002, dated 17 September 2002. 

	a.  Paragraph 7-11 states upon redeployment from overseas locations, all individuals will undergo medical processing at the deployment platforms.

	b.  Paragraph 7-12 states all personnel will receive a medical benefits and entitlements briefing.  The briefing outlining the minimum standard for medical entitlements is posted at the Deployment Cycle Support website under the Post-Deployment Phase Tasks section.  All Reserve Component (RC) Soldiers who do not meet the medical retention standards of AR 40-501, chapter 3 must be referred to an MEB/PEB. 

22.  The PPG states the Post-Deployment Health Assessment (PDHA) is a comprehensive health screening that examines for physical and behavioral health concerns associated with deployment.  The screening provides Soldiers with an opportunity to proactively identify and then – if needed – treat any deployment-related health problems that may negatively affect their daily life, Family, career, and/or future.  The PDHA is completed in the theater of operation, prior to redeployment, ideally within five days but not more than 30 days, before departure from theater.  The PDHA is completed by all RC personnel activated to Active Duty status greater than 30 days in support of any contingency operation.  RC personnel who have served only within CONUS are encouraged to complete the assessment within five days prior to demobilization.

23.  The PDHRA, documented on a DD Form 2900, is administered to each redeployed individual within 90 to 180 days after return to home station from a deployment.  For individuals who received wounds or injuries that required hospitalization or extended treatment before returning to home station, the reassessment will be administered 90 to 180 days following their return home.  After the form is completed, a trained health care provider will discuss health concerns indicated on the form and determine if referrals are required. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 17 August 2004 through 21 January 2006.  He deployed to and served in Iraq from 12 January 2005 through 28 December 2005.  He provides a DA Form 2173 documenting an incident wherein the vehicle he was riding in was part of a convoy that was hit by an IED. Other Soldiers were injured but he was not.  He assisted with applying first aid and/or perimeter security after the attack.  He provides a sworn statement from an SFC that shows everyone in his crew, including the applicant, visited the aid station the next day due to ringing in their ears.

2.  The applicant continued his service in Iraq for another 7 months after this incident.  His overall performance was excellent during this deployment as evidenced by his NCOER for the rating period November 2004 through October 2005 for his duties as a section sergeant.  He received an "Excellence" rating in the "Competence," "Training," and "Responsibility & Accountability" blocks of Values/NCO Responsibilities with positive comments.  The report also shows he passed the APFT, met the height and weight requirements, received a "Fully Capable" rating for overall performance by his rater, and received a "Successful" rating for overall performance and "Superior" rating for potential by his senior rater.  The lone negative area on this NCOER involved a "Needs Improvement" in "Physical Fitness & Military Bearing" apparently related to his failure to maintain and encourage a strong physical fitness program among himself and his subordinates.

3.  His excellent performance continued through the remaining 2 months of his deployment and appears to have improved for the 10 months following his redeployment as reflected in his NCOER for the rating period November 2005 through October 2006 for his duties as a squad leader.  He received an "Excellence" rating in the "Competence," "Leadership," "Training," and "Responsibility & Accountability" blocks of Values/NCO Responsibilities with positive comments.  It further shows he passed the APFT, met the height and weight requirements, received an "Among the best" rating for overall performance by his rater, and he received a "Successful" rating for overall performance and "Superior" rating for potential by his senior rater.

4.  The limited medical documents he provides show he went through the demobilization process with no health concerns.  In fact, on one of the documents he completed that captured the state of his health immediately after redeployment, he stated his health was "somewhat better now than before I deployed."

5.  At the time of release from active duty, there was no evidence showing he had a medical condition that warranted his entry into the PDES.  His contention before the Court and this Board is based on the fact the VA subsequently awarded him service-connected disability for various conditions, including PTSD. There are two important concepts to be clarified in this regard.

	a.  First, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency do not establish 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 medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) that 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.

	b.  Second, if and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  The VA, on the other hand, can consider, and potentially rate, all service-connected conditions even if they are not unfitting for purposes of continued service.

	c.  In the applicant's case, there was no condition that was actively limiting his ability to perform his military duties in January 2006.  There was no diagnosis of any condition being disabling at the time of his release from active duty.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  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.  The applicant's NCOERs, though not dispositive, are probative as to his fitness for continued military service.

	d.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant was not unfit in January 2006.  It is possible he showed symptoms of PTSD at the time; however, such symptoms did not equate to an unfitting physical disability.  It is also possible that this condition has worsened with time.  However, disabilities that worsen after a Soldier is separated are treated by and compensated for by the VA.

6.  His remand appears to be predicated on inaccurate or incomplete information. The Court found that the Army "failed to document applicant's medical treatment while he was deployed and to provide him with a medical briefing when he was redeployed, and delayed affording him a PDHRA until almost 1 year after his deployment, in violation of the Army's requirement that this assessment be done within 30 days."  The Court's findings and conclusions are addressed as follows:

	a.  The Army failed to document the applicant's treatment while he was deployed:

		(1)  There is no reason to concede the applicant received any undocumented treatment while in Iraq.  This finding is specifically referring to a claimed visit to a BAS the morning after barotraumas (physical damage to body tissue) damage from an IED.  This is based on the sworn statement of a Soldier in June 2005 that in May 2005 he and two other Soldiers, including the applicant, "went to the 2/11 ACR BAS complaining of headache, very loud ringing in the ears, and hearing loss."  SFC A----s made this statement to the platoon leader who apparently was unaware of the claimed medical visit.  SFC A----s does not state they received an evaluation or treatment.  He merely claims they went to the BAS with medical complaints.  His statement goes to the applicant's accountability that day not necessarily to his treatment, if any, that day.

		(2)  The record shows the applicant underwent a PDHA administered within a week (3 January 2006) of redeployment.  This PDHA was accomplished on a DD Form 2697 which is annotated to be used by the Medical Services to provide a comprehensive medical assessment for active and reserve component service members separating or retiring from active duty.  It is not specific for ARNG members who are separating from active service post deployment, but it is appropriately used for that circumstance as well as others stated.  During the PDHA, the applicant provided significant information that refutes any assumption there was medical treatment or evaluation that was undocumented.

* His health was the same as prior to deployment
* Since his last medical assessment (pre-deployment) he had been seen or treated by a health care provider for kidney stone (no other reason stated for seeing a medical provider)
* He complained of hearing a chirping noise and cited "generators" as his source of noise exposure

		(3)  An audiology evaluation performed in December 2006 states that the applicant's chief complaint is constant bilateral tinnitus (which sounds like "crickets") which he first noted upon leaving Iraq.  There was no history of tissue damage from an IED given.  The IED encounter mentioned in the sworn statement was during the first half of deployment, over 7 months prior to redeployment.  Tinnitus that was first noticed upon leaving Iraq would not be expected to be documented in the deployment health record.  It was appropriately documented at the PDHA on 3 January 2006.

		(4)  In 2006, the electronic medical record was not universally used in Iraq, particularly in outlying areas such as a BAS.  RC units with their own BAS were responsible for keeping their own records and submitting them after deployment for inclusion in the permanent military medical record.  The absence of documentation of any putative visit to the BAS is not, therefore, an indication that the visit did not occur or that the Army was negligent in its documentation.  Given the applicant's report on his PDHRA document that he felt "somewhat better now than before I deployed" and that he did not disclose an injury while deployed, the most reasonable conclusion is that a patient encounter for headaches and tinnitus is not documented because it did not occur.

	b.  The Army failed to provide the applicant a medical briefing when he was redeployed.  This briefing is a standard requirement for redeployed units.  It is often given on a set schedule in a large venue (post theater) with multiple units present.  It is accompanied by other required briefings.  It is unclear if the Court believes the applicant did not attend this briefing with the rest of his unit or that such briefings are given individually to each of the tens of thousands of Soldiers who redeploy each year.  There is nothing in the available record to suggest the applicant did not receive this briefing and there is no requirement to document this briefing in the individual Soldier's record.  

	c.  The Army delayed affording the applicant a PDHRA until almost 1 year after his deployment, in violation of the Army's requirement that this assessment be done within 30 days:

		(1)  The PDHRA is confused here with the PDHA.  The PDHRA is to be completed 90 to 180 days after redeployment.  The PDHRA reassesses a Soldier's health as compared to the initial PDHA findings.  The PDHA is to be done within 30 days of redeployment.  The PDHRA is to be done up to 180 days after redeployment.  Here, the applicant was released from active duty on
21 January 2006.  He was appropriately referred by his unit to the PDHRA screening clinic at the VA and he was seen there on 22 July 2006.  The PDHRA screening at the VA is offered to veterans at large but requires authorization from RC units.
		(2)  The PDHRA Screening Program generated the required
DA Form 2173, dated 22 July 2006, and after review, would have been forwarded to the Commander, Troop A, 98th Cavalry.  If the 22 July 2006 visit was nothing more than a walk-in referral, it would have been inappropriate for the PDHRA Screening Program to forward the DA Form 2173 back to the requesting unit indicating a completed action.  The Administrative Record also contains a computer-generated PDHRA, dated December 2006, but this encounter documents the applicant had already been evaluated and he was already under care for his reported conditions.  There was no need to generate a DA Form 2173 because the PDHRA encounter that occurred around the 180-day timeframe (22 July 2006) generated this form and referred the applicant for additional VA assessment.  

		(3)  It appears his unit (the Army) requested the PDHRA in a timely fashion.  The fact that the VA ultimately conducted the PDHRA 182 days after his release from active duty and less than 7 months after redeployment is not an injustice and is certainly in stark contrast to the assertion of the applicant's counsel that the PDHRA was delayed for "almost a year."  The Army did not delay the PDHRA.

	d.  The Army did not comply with its procedures when it released the applicant from active duty and failed to conduct a PDHRA.  As noted above, on 3 January 2006 the Army appropriately performed a PDHA, not a PDHRA, when it released him from active duty.  This encounter is documented in the Administrative Record.  He was not found to have any medical condition that kept him from demobilizing.  His only current complaints were chirping in his ears and musculoskeletal chest pain when he coughed or sneezed (which did not require treatment or evaluation while deployed).  He was appropriately medically cleared for release from active duty.  His PDHRA was appropriately performed 6 months later.

	e.  The Army did not comply with its procedures when it released the applicant from active duty and failed to determine if he needed to be referred to an MEB.  The Army did evaluate the applicant prior to separation as required.  He was not found to have any condition that failed to meet retention standards and was medically cleared for release from active duty.  He was instructed to follow-up with the VA for his complaints of tinnitus and sporadic chest wall pain.

7.  As for the Court's "Findings of Fact":

	a.  The statement that "On January 1, 2006, [Applicant] underwent a medical examination at Camp Shelby … documented on DA Form 2173" is inaccurate.  The unit commander provided boiler plate LODs to the entire unit.  It was dated on 1 January 2006.  In reality, the applicant underwent his PDHA on 3 January 2006.  This assessment should be done within 30 days of redeployment as this one was.  The PDHRA is to be performed from 90 to 180 days after redeployment.  The Court does not cite the actual PDHA from 3 January 2006.  This document shows the applicant reported his health was the same as it was prior to deployment.  He reported he had a kidney stone and chest pain (when he coughed or sneezed) during deployment.  He did not complain of any symptoms of TBI or symptoms of PTSD.  He reported a "chirping" noise in both ears mostly noticed when quiet and attributed to "noise exposure/generators."  He had no problem that even remotely suggested he failed to meet retention standards or was unfit and he was appropriately cleared for release from active duty.

	b.  On July 22, 2006, [Applicant] met with H---l M----k, a VA physician's assistant, as part of the PDHRA Screening Program."

		(1)  The Soldier's post deployment health is first assessed and later reassessed.  The PDHA initially assessed the applicant's health upon redeployment on 3 January 2006.  The PDHRA reassessing the applicant's health, to be done within 90 to 180 days, was done on 22 July 2006.    This PDHRA appropriately generated a DA Form 2173 and a referral for additional medical evaluation as per MILPER Message 05-273.  The unit commander signed this July 2006 document, completing the loop.  By virtue of the DA Form 2173, he knew his Soldiers appropriately underwent the PDHRA and was referred for additional evaluation.  His signature completed this form and authorized an evaluation appointment for any injury, illness, or condition claimed and identified during the PDHRA.  When the applicant completed a second, computer generated, PDHRA in December 2006 (cited by the Court), he was noted to already be under treatment for all conditions identified.  This was by virtue of his PDHRA and referral in July 2006 by H---l M----k.

		(2)  The Court cites a computer-generated PDHRA in December 2006 as evidence that the Army was negligent.  It is noted that the PA did not make any referrals for further treatment.  It notes the applicant reported several physical symptoms and some mental symptoms.  It also noted the applicant was already under care for all his complaints (a result of referrals generated by the PDHRA in July 2006).

		(3)  The Court does not note this computer generated PDHRA questionnaire also documents the applicant was in better health in December 2006 than he was prior to deployment in 2004.  It does not note the applicant did not disclose being injured, assaulted, or otherwise physically hurt during his deployment.  It does not note he reported excessive use of alcohol.  It does not report he specifically answered "No" to the question "Are you currently interested in receiving information or assistance for a stress, emotional, or alcohol concern?"

		(4)  Regarding the second PDHRA screening performed in December 2006 the Court states "there is no indication in the Administrative Record that there was a review of this medical evaluation by an appropriate medical authority, as required by MILPER Message Number 05-273."  However, there was no requirement to generate a second DA Form 2173.  One was completed in July 2006 as noted above and as acknowledged by the Court.  

8.  Finally, the following is discussed for completeness.  Neither the Court nor counsel has raised the issue of the applicant's fitness in 2009 when he completed his ARNG enlistment.  The available record contains three profiles:  June 2007 - Temporary – PTSD; November 2007 - Temporary – Stress; and March 2008 - Permanent - Major Depression.  

	a.  Although his permanent profile signed in March 2008 was for depression and did not refer him for an MEB, the record is clear that he was subsequently offered an MEB.  The profile is generated based on the answers to an annual medical screening or by request of a commander for a fitness determination or, in some cases, when the Soldier has had three successive 90-day temporary profiles.  When a disqualifying condition is identified and a permanent profile generated, the Soldier is then asked to provide medical documentation of his condition and evidence (LOD) that the disqualifying condition was incurred "In Line of Duty."

	b.  If it is determined that the disqualifying condition is "In Line of Duty," the Soldier is referred for an MEB.  If not "In Line of Duty," the Soldier is medically disqualified and involuntarily separated.  The record shows the applicant was offered an extension of his enlistment to undergo an MEB; however, he refused.  On 25 September 2009, he stated he was "getting 100 percent disability and all benefits" and he did not want an MEB.  He requested to be discharged.

	c.  The first VA rating, the one most indicative of his condition at the time of release from active duty was not made available for our review.  There are a large number of VA clinic notes that show a common theme.  A few months after returning home, he began having problems with alcohol.  It is unclear whether or not the alcohol was the cause or the result of problems with his marriage.  He refused inpatient treatment and he was noncompliant with medications.  Multiple 

clinic visits for PTSD centered on this drinking problem and the fact that his wife no longer loved him and he was afraid that she would leave him.  The record shows she did leave him.

9.  Therefore, in response to the Court's directives to the Board:

	a.  The ABCMR is directed to reassess the applicant's separation from active duty and determine whether the applicant should have been discharged due to medical disability in accordance with the Army's regulations.  The answer is an unqualified No.  The applicant was appropriately screened and evaluated prior to his release from active duty and he had no hint of any condition that failed to meet retention standards.

	b.  The Board shall determine whether referral to an MEB and potentially a PEB is appropriate at this time, and document the rationale for its determination. It is unclear exactly what the Court is asking.  Because neither the Court, nor counsel, ever raised the issue of the MEB that the applicant refused in 2009, it appears this question is directed at the appropriateness of an MEB today in order to make up for a suggested past wrong in 2006.  Since the response to the first directive above is No, the answer to the second directive is necessarily No also. 

	c.  The Board shall give rationale for its determination in the second directive. The rationale for not referring the applicant to an MEB to correct an injustice in 2006 is that there was no injustice in 2006; therefore, there was no basis for referring the applicant to an MEB.

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 that 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)                                         AR20130001757



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ABCMR Record of Proceedings (cont)                                         AR20130001757



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