IN THE CASE OF:	   

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130003433 


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 reconsideration of his previous request for correction of his records to show he was separated for medical reasons.

2.  The applicant states he found additional evidence.  He is enclosing an Inspector General (IG) request for assistance pertaining to his line of duty (LOD) investigation, his extension contract, email correspondence, and Congressional inquiry correspondence.

3.  The applicant provides:

* DA Form 1559 (Inspector General Action Request (IGAR)), dated 25 February 2011
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 7 March 2011
* memorandum for the 30th Troop Command, dated 17 March 2011, subject:  Request Administrative Discharge
* memorandum from the Tennessee Army National Guard (TNARNG) IG, dated 8 April 2011, subject:  IGAR
* email between members of the TNARNG, dated 4 May 2011
* memorandum from the TNARNG Health Systems Specialist, dated 17 January 2012, subject:  Response to Congressional Inquiry 12-XXX Regarding Non-Medical Discharge for (Applicant)


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120000384 on 23 August 2012.

2.  The applicant provides the documents indentified in his request for reconsideration which were not previously reviewed by the Board.  Therefore, these documents are considered new evidence which warrant consideration by the Board.

3.  The previous Record of Proceedings noted the following evidence:

	a.  The applicant enlisted in the TNARNG on 6 February 2002.  He completed initial entry training and he was awarded military occupational specialty 95B (Military Police).  He was promoted to the rank/grade of sergeant/E-5 on 29 September 2005.  On 12 November 2008, he was ordered to active duty and he subsequently served in Iraq from 11 January to 31 October 2009.

	b.  On 7 March 2010, he voluntarily executed a DA Form 4836 that extended his enlistment for 1 year and established his new expiration of term of service (ETS) date as 20 March 2011.

	c.  He was honorably discharged from the ARNG on 20 March 2011 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-36n, for expiration of active status commitment in the selected Reserve.  He completed 9 years, 1 month, and 15 days of ARNG service.

	d.  His military medical records were not available for review.

	e.  A Standard Form 600 (Chronological Record of Medical Care), dated 10 October 2009, showed he was involved in a convoy that received small arms fire in October 2009.  He was subsequently diagnosed with an adjustment disorder with disturbance of emotions and adjustment insomnia.  He was given medication and he was encouraged to seek help for post-traumatic stress disorder (PTSD) symptoms in garrison due to his impending redeployment.

	f.  A memorandum from the National Guard Bureau (NGB), dated 17 May 2010, subject:  Line of Duty Determination, showed NGB approved his adjustment disorder with disturbance of emotions and adjustment insomnia which occurred during Operation Iraqi Freedom (OIF) as "IN LINE OF DUTY."
	g.  A DA Form 4856 (Developmental Counseling Form), dated 2 June 2010, showed he was counseled in reference to a fitness-for-duty evaluation being submitted to the State Medical Review Board to determine his ability for continued service in the TNARNG.  The counseling stated the applicant had 33 working days to submit his medical and any other pertinent documentation that was requested in the counseling.  The counseling further stated that failure to follow through could lead to an administrative discharge.

	h.  A letter from the Department of Veterans Affairs (VA), Tennessee Valley Healthcare System, dated 14 June 2010, indicated the VA Operation Enduring Freedom (OEF)/OIF Clinical Psychologist stated she diagnosed the applicant with chronic PTSD and recurrent, severe major depressive disorder.

	i.  A psychiatry outpatient note, dated 21 June 2010 and addressed “To Whom it May Concer,” which was part of his fitness for duty evaluation showed the psychiatrist stated the applicant suffered from a chronic condition that would likely require long term (possibly lifetime) medication management.  The psychiatrist further opined that the applicant would likely have difficulty performing military duties due to the severity of his symptoms and the side effects of medication.

	j.  A memorandum from his former commander, dated 2 August 2010, indicated the applicant could no longer function due to his physical impairment and his injury prevented his unit from using him in a productive manner.  He recommended the applicant's process and separation through the U.S. Army Physical Disability Evaluation System (PDES).

	k.  There was no evidence in his records and he provided none showing he was processed for a medical board and he was twice denied a medical discharge.

4.  The previous Record of Proceedings concluded that although he was diagnosed with a mental disorder, he continued to perform the duties required of his grade and military specialty.  Therefore, there was insufficient evidence to grant his request for a medical discharge.

5.  He provided the following documentation as new evidence:

	a.  A DA Form 1559, dated 25 February 2011, shows he requested assistance from the IG pertaining to an LOD investigation and he inquired as to whether he should have received a medical discharge.

	b.  A DA Form 4836, dated 7 March 2011, shows he voluntarily extended his enlistment for a period of 6 months which established a new ETS date of 20 September 2011.  This extension was for the purpose of processing of LODs and a potential Medical Review Board.  (He later requested that he be relieved of this extended service obligation and that he be discharged on his ETS date.)

	c.  An email message between members of the TNARNG, dated 4 May 2011, stated the applicant was denied a medical discharge by Sergeant Major C____ twice before the ETS action was processed.

	d.  A memorandum from the TNARNG Health Systems Specialist, dated 17 January 2012, stated that LOD investigations were conducted related to his injured right leg and for an adjustment disorder.  The memorandum also stated that an LOD investigation for PTSD was never received by the Deputy State Surgeon's Office.

	e.  A memorandum for the 30th Troop Command, dated 17 March 2011, subject:  Request Administrative Discharge, requested an immediate administrative discharge due to a service-related disability.  The applicant stated he was receiving disability compensation from the VA for PTSD.

	f.  A memorandum from the TNARNG IG addressed to the applicant, dated 8 April 2011, in response to his request for IG assistance stated the applicant's LOD investigation for his back and knee were administratively closed due to the lack of a definitive diagnosis.  The IG also informed the applicant that due to changes in the Medical Command guidelines pertaining to PTSD, a Medical Retention Board was not required because the issue was administrative in nature.  (The IG apparently meant to refer to the LOG as an administrative action, due to a change from commander’s discretion regarding formal versus informal LODs to a statewide policy requiring a formal investigation for all PTSD LODs.)  The IG concluded the applicant's request for IG assistance would be closed without further action in accordance with Army Regulation 20-1 (IG Activities and Procedures).

6.  There is insufficient evidence in the available records to show he was deemed unfit to perform his duties or deemed unfit for retention at the time of his discharge.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for a medical evaluation board that is 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 (Standards of Medical Fitness), chapter 3.  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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	a.  Paragraph 2-1 provides 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.

	b.  Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.


8.  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 of less than 30 percent.

9.  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.  However, an award of a VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his previous request for a medical discharge has been carefully considered.

2.  The new evidence (which would have been available at the time of the first consideration of his case) and the fact that he was diagnosed with a mental disorder were considered; however, the new evidence failed to show he was determined to be unfit for retention or discharge prior to his ETS.

3.  The applicant again failed to provide any evidence and his record does not contain sufficient evidence to show he was determined to be unfit for retention or discharge prior to his administrative separation.  In the absence of evidence showing he was unable to perform the duties of his rank and military occupational specialty at the time of his discharge, there is no basis to grant his request for a medical discharge.


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 to amend the decision of the ABCMR set forth in Docket Number AR20120000384, dated 23 August 2012.



      _______ _   _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)                                         AR20130003433



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ABCMR Record of Proceedings (cont)                                         AR20130003433



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