BOARD DATE:	  7 May 2014

		DOCKET NUMBER:  AR20130013769 


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 record to show he was retired for disability for his diagnosed post-traumatic stress disorder (PTSD) and back injury. 

2.  The applicant states he was medically discharged from the Georgia Army National Guard (GAARNG) in 2012 for mood disorders without a medical board.  He states he feels after 12.5 years of service he should have been medically retired due to being diagnosed with PTSD in Iraq in 2010 and a severe back injury at Fort Benning, GA, in 1998 after an injury on military equipment.  He states he has been receiving Department of Veterans Affairs (VA) disability of 60 percent since 2010 for PTSD and tinnitus.  He recently received 20 percent additional disability on his back after a 2-year effort with the VA. 

3.  The applicant provides:

* service medical records
* Medical SRP – Active Duty Health Readiness Survey
* Traumatic Brain Injury (TBI) demobilizing questionnaire
* DD Form 2216E (Hearing Conservation Data)
* Case Management document
* DD Form 2697 (Report of Medical Assessment)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Standard Form 600 (Health Record - Chronological Record of Medical Care) 
* DA Form 4700 (Medical Record – Supplemental Medical Data)
* Privacy Release Form
* Self-authored letter to the GAARNG medical staff
* The Adjutant General State of Georgia Orders 052-826
* two VA rating decisions
* National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) 
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
  
CONSIDERATION OF EVIDENCE:

1.  On 10 September 2003, with prior ARNG and Regular Army service, the applicant enlisted in the GAARNG.

2.  His record shows he served on active duty in support of Operation Iraqi Freedom from:

* 6 December 2004 through 22 May 2006
* 8 November 2007 through 2 March 2009

3.  A DA Form 7349 (Initial Medical Review – Annual Medical Certificate), dated 8 November 2007, completed in connection with his mobilization shows the "NO" current medical/dental problems box is checked.  Part II has the "FULLY FIT" box checked.  The physician's review notes show "good health."

4.  He provides multiple service medical documents, dated 8 December 2008.  These service medical records show he had gone to speak with Behaviorial Health who had cleared him for release from active duty.  These records indicate he had been diagnosed with chronic PTSD.

5.  A Standard Form 600, dated 10 December 2008, lists his medical problems including chronic PTSD.

6.  He provides a DA Form 4700, with an unreadable date, listing his medical problems/issues as chronic PTSD and a back injury incurred in 1998. 

7.  A VA Rating Decision provided by the applicant shows the VA granted him a 30-percent service-connected disability rating for PTSD and a 10-percent rating for tinnitus effective 3 March 2009.

8.  The VA increased the disability rating for PTSD to 50 percent effective 8 February 2010.

9.  His record includes three Noncommissioned Officer Evaluation Reports (NCOERs) covering 12-month rating periods ending 30 November 2008, 30 November 2009, and 30 November 2010.  The forms show his raters rated his overall potential for promotion and/or service in positions of greater responsibility as "fully capable" for all three periods.

10.  His complete medical record is not available for review.  The available records do not contain any documentation related to a fit for duty evaluation.

11.  On 18 February 2012, he was honorably discharged from the ARNG under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35l(8) due to being medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness). 

12.  He provides a self-authored letter addressed to the GAARNG medical staff in which he states he was discharged from the GAARNG on 14 February 2012 on a medical discharge with no disability rating.  He details some of his military service and his VA disability ratings.  He further states he was unable to make an appointment with a military psychiatrist due to civilian employment because he was given less than a 24-hour notice of the appointment.  He also states that he did not respond to a 75-day letter he received from the GAARNG in December 2011 because he did not know what it was and Mrs. RB at a Disabled American Veterans' office indicated she would take care of it for him.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18.  

	a.  It contains the rules and policies for disability processing of Reserve Component (RC) Soldiers on active duty or on inactive duty for training.  It states an RC Soldier will be referred for medical processing through the Army PDES when a commander or other proper authority believes a Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  It 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

	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 and 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 and the condition must be rated as 30 percent disabling or more.

14.  Army Regulation 40-501, chapter 3, provides standards for medical retention.  Paragraph 9-12 states RC Soldiers with non-duty related medical conditions pending separation for failing to meet the medical retention standards are eligible to request referral to a physical evaluation board (PEB) for a determination of fitness.  The process was designed to give the Soldier with a non-duty related impairment the option of requesting a PEB solely for the purpose of fitness determination but not a determination of eligibility for disability benefits.  Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required.  This regulation further states that all RC Soldiers are responsible for providing the unit commander all medical documentation including civilian health records.  Civilian health records documenting a change which may impact their readiness status will be placed in the Soldier’s military health record.

15.  National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35 provides reasons, applicability, codes, and board requirements for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both.  Paragraph 6-35l(8) states commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501.  Commanders who do not recommend retention will request the Soldier’s discharge.  When the medical condition was incurred in line of duty, the procedures of Army Regulation 600-8-4 will apply.

16.  Army Regulation 600-8-4 (LOD Policies, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  It provides standards and considerations used in determining LOD status.  It states that LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. 

17.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. 

	a.  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 affect the individual’s civilian employability.  

	b.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

18.  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 rated at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were noted.  Though his length of military service is appreciated by this country, it is not a factor in the consideration of whether a Soldier is entitled to a medical retirement.

2.  Absent the related documents for review it is unclear how his failure to go to an appointment with a military psychiatrist or his failure to respond to a "75-day letter" he received from the GAARNG relates to his case.  However, given that RC Soldiers are responsible for providing the unit commander with all medical documentation, including civilian health records, it may be in part that he failed to provide such documentation for review.

3.  Further, there is no available approved line of duty determination concerning his back injury and no evidence showing he was unable to reasonably perform his military duties due to a back injury.  Therefore, there appears to be no basis for processing him through the PDES due to a back injury.

4.  The available records indicate he was diagnosed with PTSD during his active service.  However, there are no available records showing that prior to his discharge he was found to be unable to reasonably perform full military duty due to PTSD.

5.  His record contains three annual NCOERs showing he was fully capable of performing his duties prior to his discharge.  It appears the ARNG may have found him to be medically unfit for retention based solely on his VA rating decisions, or, as he contends, based on a mood disorder.

6.  Though his discharge packet and complete medical record are not available for review, the Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Based on available evidence it is unknown whether an evaluation was conducted to determine whether he should be considered by an MEB.  However, based on the assigned reason for his discharge, it is reasonable to presume that the proper medical personnel determined the applicant was unfit for retention in accordance with Army Regulation 40-501 based on a non-duty related medical condition (mood disorders) only and that he was offered counseling on his options upon his notification of his medical disqualification.  

7.  The fact that the VA granted him a service-connected disability rating for PTSD is not evidence of error on the part of the ARNG by determining unfitness for a non-duty related medical condition.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The VA awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

8.  Furthermore, the VA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

9.  A physical disability discharge is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform their duties because of a physical disability incurred or aggravated in service.  

10.  Based on the above, the applicant has not submitted sufficient evidence to show he was eligible for referral to the PDES.  As such, there is an insufficient basis for which to grant his request for a medical retirement. 


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)                                         AR20130013769



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ABCMR Record of Proceedings (cont)                                         AR20130013769



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