IN THE CASE OF:	  

		BOARD DATE:	 August 6, 2014  

		DOCKET NUMBER:  AR20130016505 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request to correct his records to show he was medically discharged with full benefits.

2.  Counsel states:

	a.  The applicant's command knew he was severely injured twice within 30 hours in June 2006 while serving as a gun truck crewmember in Iraq.

	b.  Upon thorough review of the circumstances of this case, the Board will find probable error and a grave injustice committed by the Army Readiness Command (88th Regional Readiness Command) in discharging the applicant without affording him a medical evaluation board (MEB).

	c.  The applicant's release from active duty (REFRAD) on 3 December 2006 was an administrative decision that was not expected or approved by his former active duty command.

	d.  He disagrees with the Board's findings that the applicant's official records did not contain evidence that a condition or illness rendered him unable to perform his duties, that he suffered from a condition that warranted his entry in the Physical Disability Evaluation System (PDES), or that he had been issued a permanent physical profile that rendered him disabled.  Surely common sense reveals this is a departure from truth that demands a finding of error and injustice.  The applicant was severely injured rendering him unable to perform his duties.  He was assigned a permanent physical profile and he suffered from a condition that warranted his entry into the PDES.  He was not only obligated to serve until 22 November 2011, but he was entitled to serve 8 years and pursue a career.

	e.  The applicant was a truck driver, not a company clerk.  He was told his active duty command was completing the paperwork to see that he was sent to an MEB to determine the extent of his combat injuries and disabilities.  He was not responsible for accumulating his medical records or assembling a request to appear before an MEB.  He was at the mercy of the clerks, noncommissioned officers, and officers whose duty it was to see that the paperwork was completed properly so, if REFRAD, he would leave with all the benefits of a wounded warrior.  It is not enough to observe that the paperwork did not reflect the truth of his condition at that moment.  When incomplete paperwork and a failure of leadership creates untruth, it is per se "injustice."  He was injured on the field of battle and he should have been sent to an MEB.  Where hindsight reveals a denial of the "right result," then the Board can and ought to ensure justice and apply the correction.

	f.  The Board concluded that accumulation of retirement points is indicative of completing drills (Reserve Component training) satisfactorily.  Presence at the unit for the 4-hour drill will warrant accumulation of drill points.  The applicant's physical profile did not permit him to perform duties required of a Soldier in his grade or complete physical fitness requirements.  If the applicant was performing satisfactorily without a physical profile, he should have been permitted to complete his 8-year enlistment.  It was his combat injuries that interfered with his retention.  The local Reserve command knew that and the former active duty unit believed they had properly initiated his entry into the PDES.

	g.  It is a mystery why he was REFRAD when the active duty command was pursuing his medical retirement.  It is not at all surprising that he accumulated retirement points, but it is simply irrelevant to the question at issue.  While he was hurting, he attended drills regularly, he performed assigned duties, and he was loyal to his oath of enlistment.

	h.  The Board noted the applicant was issued a permanent physical profile for post-traumatic stress disorder (PTSD) and chronic knee pain on 1 March 2008.  The physical profile indicated he did not meet retention criteria, but there was no connection in the administrative minds that these were combat injuries incurred in the line of duty.  Thereafter, the 88th Regional Readiness Command lost no time in finding he was not fit for service in the U.S. Army Reserve (USAR).  Why would someone at this point not ask the obvious question:  "If these profiles are a result of occurrences in combat, why are we not protecting the combat Soldier and initiating an MEB to determine the percent of disability incident to a medical retirement?"

3.  Counsel further states:

	a.  The applicant was ultimately discharged from the USAR on 21 May 2008 for being medically disqualified for continued service.  His Army career ended.

	b.  The Board seems to criticize the lack of medical documents in his official records.  As is true for many Soldiers injured in combat areas of operations, qualified medical doctors are not present for immediate evaluation or treatment and records do not get properly filed.  There are ample documents that put the command on notice that the applicant was suffering from physical and mental line-of-duty combat injuries before he was discharged from active duty or the USAR.

	c.  Three sick slips, dated June, August, and September, and medical records starting in July and ending in October 2006 indicate the applicant had a knee injury in the line of duty that interfered with his duty status.

	d.  Without focusing on further diagnoses and treatment or a Department of Veterans Affairs (VA) Rating Decision, is it sufficient to note the applicant was suffering from an illness and injury that occurred while serving on active duty in Iraq.

	e.  A retired command sergeant major (CSM) attests to personal knowledge of the applicant's medical condition and that he discussed the applicant's situation with the entire chain of command.  All concurred that the applicant should seek a medical discharge.

	f.  The applicant meets the requirements of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He must surely be considered eligible for consideration under the PDES.  Paragraph 3-1(d) provides that the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, a Soldier's exclusion from worldwide deployability cannot serve as the sole basis for a finding of unfitness.  This paragraph is relevant in that the Army chose to discharge the applicant.  While it was in his best judgment to accept the end of his Army service, it should not have precluded him from being considered eligible for participation in the PDES.

	g.  There is surely no dispute that the applicant became unfit for military service and continues to be disabled solely because of his injuries and illness resulting from his encounters with improvised explosive devices (IED's) while serving in combat in Iraq and a line-of-duty injury where he jammed a knee on 12 May 2006 while doing his best to remain physically fit on a treadmill in Iraq.

	h.  In the discussion and conclusions, the Board makes it very clear that there is no difference in physical disability processing for a Reserve Component Soldier and a Regular Army Soldier.  The retired CSM who served with the applicant has confirmed that the entire chain of command supported an MEB for the applicant due to his duty-related injuries.  Surely this command decision should not be ignored.

	i.  Whether there is a higher VA rating that may be accorded to the applicant by an Army MEB is not at all the question.  The question is whether he should be able to enjoy the many additional benefits of retirement due to his injuries.

	j.  There is a diagnosis of a knee injury that resulted in a permanent physical profile and there is a diagnosis of PTSD that was followed by an opinion that the applicant should not return to combat.

	k.  The Department of Defense and the VA have separate systems of awarding disability pay and different methods of computation.  In instances like this, there is the appearance that the military is deliberately shortchanging its troops to cut costs.  This Board must stand for what is right and proper.  It must correct the mistakes made because the administrative machine runs too slowly to protect the wounded from receiving their retirement entitlements.  The E-4's and below should not be deprived of entitlements because the paperwork was not processed.

4.  Counsel provides:

* the applicant's service medical records
* the applicant's VA medical records
* the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* the applicant's Mental Health Evaluation, dated 11 April 2008
* a memorandum from a retired CSM, dated 16 August 2011
* a memorandum from a retired sergeant first class (SFC), dated 31 May 2013



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 AR20110024275 on 14 June 2012.

2.  Counsel provided an argument; a memorandum from a retired CSM, dated 16 August 2011; a memorandum from a retired SFC, dated 31 May 2013; and service medical records pertaining to the applicant, dated 2006, which were not previously considered by the Board.  These contentions and the supporting documentation are new evidence that will be considered by the Board at this time.

3.  The applicant enlisted in the USAR on 22 November 2003 for a period of 8 years.  He completed the required training and he was awarded military occupational specialty 88M (Motor Transport Operator).

4.  On 5 August 2005, he was ordered to active duty in support of Operation Iraqi Freedom.  He served in Iraq from 4 November 2005 to 30 October 2006.

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 10 August 2006, shows the applicant jammed his knee while running on a treadmill in Iraq on 12 May 2006.  This form states the applicant's knee injury incurred in the line of duty.

6.  Medical records show he had multiple clinic visits for the injured knee.  The dates of the clinic visits were 17 June 2006, 1 July 2006, 4 August 2006, and 
10 August 2006.  

7.  The applicant was honorably REFRAD on 3 December 2006 by reason of completion of required active service.

8.  A DA Form 3349 (Physical Profile), dated 1 March 2008, show he was issued a permanent physical profile for PTSD and chronic knee pain.  Item 4c (If a permanent profile with a 3 or 4 PULHES, does the Soldier meet retention standards in accordance with Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness)?) of this form shows an "X" in the "Needs MEB/PEB" block.




9.  A DA Form 7349 (Initial Medical Review - Annual Medical Certificate), dated 1 March 2008, states:

* he had PTSD and multiple knee problems and musculoskeletal strain
* he did not meet the retention criteria of Army Regulation 40-501, paragraph 3-32c, and his persistent symptoms interfered with effective military performance
* he was determined to be unfit for USAR service

10.  There is no evidence the applicant was processed through the disability system.

11.  He was honorably discharged from the USAR on 21 May 2008 by reason of being medically disqualified for continued service in the USAR.

12.  Counsel provided a commander's request for a mental health evaluation, dated 11 April 2008, which states, in part, "The Soldier has stated that he has Post-traumatic stress disorder."

13.  Counsel provided a memorandum from a retired CSM, dated 16 August 2011, who attests:

* he served with the applicant
* the applicant's medical condition was brought to his attention in 2007 subsequent to the applicant's deployment in 2006
* his condition was the result of two IED blast events that he experienced during his deployment
* he discussed his situation with the applicant's entire chain of command
* the applicant informed him that he intended to seek a medical discharge from the Army
* based on what he had seen, he believed the applicant would be granted that discharge status

14.  Counsel provided a memorandum from a retired SFC, dated 31 May 2013, who attests:

* he served with the applicant
* he became aware of his medical condition in 2007 resulting from his deployment to Iraq in 2006
* his condition was the result of two IED blasts in Iraq
* he discussed the applicant's situation with his chain of command
* the company commander initiated a commander's request for a mental health evaluation
* why he was never issued orders and discharged first is unknown to him
* the applicant used his chain of command and had all the proper documentation of his medical condition and told him of his intentions of requesting a medical discharge from the Army
* with all the evidence the applicant had presented he believed he would be granted a medical discharge
* to learn this was not granted is absolutely shameful
* this Soldier served his country and was injured performing his duties

15.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.   The regulation provides that Medical Treatment Facility (MTF) will provide a thorough and prompt evaluation when a Soldier's condition becomes questionable in respect to physical ability to perform duty.  Unit commanders will ensure that any physical defects impacting on a Soldier's performance of duty are reflected in the Soldier's evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.  It also states that the MTF commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation.  If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a MEB.  The MEB will recommend referral to a physical evaluation board (PEB) those Soldiers who do not meet medical retention standards.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant sustained an injury in combat which led to a permanent profile which should have initiated an MEB.

2.  Evidence shows he was issued a permanent 3 profile for PTSD and chronic knee pain on 1 March 2008.  This permanent profile states he does not meet retention criteria and an MEB/PEB is required.

3.  There is no evidence the applicant was processed through the disability system.

4.  He was honorably discharged from the USAR on 21 May 2008 by reason of being medically disqualified for continued service in the USAR.

5.  Based on the documented clinic visits, the line of duty statement, and the permanent profile for the knee injury which occurred while the applicant was still on active duty, an MEB is warranted.

6.  Although the available evidence does not support reinstatement on active duty, as a matter of equity, he should be provided a complete medical examination to determine if he was qualified for severance pay or disability retirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20110024275, dated 14 June 2012.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  issuing him an invitational travel order for the purpose of undergoing an MEB and PEB; 

	b.  directing him to report for medical evaluation at the nearest available military MTF to his present residence; and 

	c.  providing MEB and/or PEB findings and recommendations for their further action, as necessary. 





2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing he was medically discharged with full benefits at this time.



      ___________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)                                         AR20130016505



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ABCMR Record of Proceedings (cont)                                         AR20130016505



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