IN THE CASE OF:	   

		BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130015193 


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 correction of his military service records to show he was medically retired.

2.  The applicant states he should have been medically retired for post-traumatic stress disorder (PTSD).  At the time, he was unable to perform his duties and he was placed on non-deployable status because of his medical condition.  During the last 2 years of his enlistment, he was told by his chain of command that it would look bad for him to receive a Medical Evaluation Board (MEB) for PTSD.  Since his discharge, he has been unsuccessful in obtaining a job.  He is currently receiving 100 percent disability from the Department of Veterans Affairs (VA).

3.  The applicant further states:

* after his return from Iraq he began to have nightmares, paranoia, hypervigilance, flashbacks, hallucinations, and severe irritability
* he received medical treatment for PTSD and anxiety
* his request to be released from active duty due to his mental conditions was denied
* he was told by his chain of command to get over his mental conditions
* he could not complete everyday tasks
* he injured his hip while participating in physical training (PT)
* he was issued a temporary profile for his hip injury and an MEB was started


* he constantly missed work
* his commander recommended he be separated by reason of being unfit for duty which stopped his MEB
* he now has a full-time caregiver because he can't take care of himself and his responsibilities

4.  The applicant provides:

* VA Progress Notes
* VA Rating Decision, dated 17 September 2012
* service medical records
* DA Form 3349 (Physical Profile), dated 11 April 2006
* Enlisted Record Brief
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 enlisted in the Regular Army (RA) on 11 February 2003.  He completed training and was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).

3.  The applicant's service medical records show that he had a history of chronic PTSD since 2005 and adjustment disorder since 2006.  His medical conditions were treated with medication for the remainder of his military service.  His service medical records do not show evidence he was referred to an MEB for PTSD or for any other ailment.




4.  A DA Form 3349, dated 11 April 2006, shows the applicant was issued a temporary profile for "hip pain."  

5.  On 10 February 2007, the applicant was released from active duty under the provisions of chapter 4, Army Regulation 635-200, for completion of required active service.  He was issued an honorable characterization of service after completing 4 years of creditable active service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

6.  There is no documentation in the available records that shows he was:

* diagnosed with an illness or injury that rendered him unable to perform the duties of his rank, grade, or military specialty
* diagnosed with an illness or injury that warranted his entry into the Army Physical Disability Evaluation System (PDES)
* issued a permanent physical profile or was medically unqualified for separation

7.  Orders C-01-000682, dated 15 January 2010, issued by the U.S. Army Human Resources Command (HRC), show the applicant was assigned to a USAR unit in Washington, effective 14 January 2010. 

8.  Orders 10-281-00005, dated 8 October 2010, issued by Headquarters, 88th Regional Support Command, show he was honorably discharged from the USAR.

9.  His Army Reserve Personnel Command (ARPC) 249-E (Chronological Statement of Retirement Points) shows he drilled with his USAR unit during the period 25 October 2009 through 24 October 2010 and received 15 inactive duty points. 

10.   A VA Rating Decision, dated 17 September 2012, shows his 100 percent service-connected disability rating for PTSD and generalized anxiety disorder with panic attacks was continued.  He was also awarded special monthly compensation based on aid and attendance. 

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.
	a.  This regulation states the mere presence of an 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 against medical retention qualification standards established in Army Regulation 40-501 (Standards of Medical Fitness).

	b.  Soldiers must be referred into the PDES.  If a treating physician believes a Soldier is unable to perform full military duty or is unlikely to be able to do so within a reasonable period of time – normally 12 months – the Soldier is referred to an MEB at the medical treatment facility where treatment is being provided.  The MEB is an informal process comprised of at least two physicians who compile, assess, and evaluate the medical history of a Soldier and determine if the Soldier meets or will meet retention standards.  If the Soldier meets retention standards, the Soldier is returned to duty in his or her current military occupational specialty.  If the Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB) for further disposition and determination of fitness.

12.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not empowered by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, 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.  Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for correction of his military service records to show he was medically retired was carefully considered and it was determined there is insufficient evidence to support his request.

2.  Evidence of record shows he was treated for adjustment disorder with anxiety, chronic PTSD and other medical conditions during his military service and had a temporary profile for hip pain.  However, there is no evidence of record that indicates he was unable to perform his military duties due to these conditions.  

3.  His service medical records show that numerous medical physicians treated him over several years.  There is no evidence contained in his service medical records that shows any of the physicians referred him to an MEB or that his commander referred him for evaluation for being medically unfit to perform his military duties.  

4.  In addition, he attended drill while assigned to the USAR after his release from active duty in February 2007, which is a further indication that he was medically fit for retention. The evidence of record fails to indicate he could not perform his military duties, nor is there any evidence that shows he was separated from the USAR due to physical disability, and he provides no such evidence.

5.  The VA rating documents provided by the applicant were also carefully considered.  However, the award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

6.  Based on the above, the applicant has not submitted sufficient evidence to show he was eligible for referral to the PDES or that he was ever unfit by reason of physical disability.

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)                                         AR20130015193





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ABCMR Record of Proceedings (cont)                                         AR20130015193



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