IN THE CASE OF:	  

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130016769 


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 to be medically retired from the Regular Army (RA).

2.  The applicant states, in effect:

	a.  he received a 70 percent rating for traumatic brain injury (TBI) from the Department of Veterans Affairs (VA). 

	b.  he did not receive an exit physical or any out-processing as required by regulation. 
 
	c.  he received his DD Form 214 (Certificate of Release or Discharge from Active Duty) and National Guard Bureau (NGB) Form 22 (Department of the Army and Air Force NGB Report of Separation or Discharge) by mail. 

	d.  he clearly would have met the 30 percent requirement for a medical retirement from the RA. 

	e.  he served for over 3 1/2 years in the Active Guard Reserve (AGR) program after he redeployed from Afghanistan.  

	f.  his physical health assessment denoted anxiety on 6 December 2011 and no exit physical despite his statements of separation due to injuries.



3.  The applicant provides:

* two DD Forms 214
* an NBG Form 22
* DA Form 2-1 (Personnel Qualification Record)
* nine orders
* 21 pages of his medical records and allied documents
* three personal statements
* two memoranda for record (MFR)
* a memorandum

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.  After prior enlisted service in the Oklahoma Army National Guard (OKARNG), the applicant was commissioned as an officer in the OKARNG on 29 July 1993.  

3.  He submitted:  

	a.  Orders Number 261-218, dated 18 September 2003, issued by Departments of the Army and Air Force, Oklahoma Army and Air National Guard, which show he was ordered to active duty (AD) in support of Operation Enduring Freedom on 19 September 2003.  

	b.  Permanent Orders Number 193-006, dated 11 July 2004, issued by the Department of Defense, Headquarters 45th Infantry Brigade, Coalition Joint Task Force Phoenix, which show he was awarded the Combat Infantryman Badge while deployed to Afghanistan from 20 November 2003 to 28 June 2004.

	c.  Orders Number 206-228, dated 24 July 2004, issued by Headquarters, 7th Infantry Division, which show he was scheduled for release from AD, effective 
9 October 2004, and was eligible for transitional health care under Title 10, U.S. Code, Section 1145 until 8 April 2005. 

4.  On 9 October 2004, he was released from AD and returned to the OKARNG after serving for 1 year and 21 days.  The DD Form 214 he was issued shows in:

* Item 23 (Type of Separation), Release from AD
* Item 24 (Character of Service), Honorable
* Item 28 (Narrative Reason for Separation), Completion of Required Active Service

5.  He submitted:

	a.  19 pages of medical documents, dated between 4 January 2003 and 
6 December 2011, that noted his diagnosis and treatment of:

* plantar fasciitis
* hearing loss
* his lower back
* behavior health issues

	b.  a DA Form 3349 (Physical Profile), dated 6 December 2011, that shows he received a temporary profile due to his medical condition of anxiety.

6.  His record contains five Officer Evaluation Reports for the rating periods beginning in April 2006 and ending in July 2011, that all show in Part V (Performance and Potential Evaluation) he was always rated as outstanding performance, must promote.

7.  He submitted:

	a.  his VA Rating Decision, dated 11 April 2006, that shows the following decisions regarding his claim, effective 16 June 2005:

* service-connected, but zero percent for

* plantar fasciitis with osteoarthritis of the left foot, 10 percent
* plantar fasciitis with osteoarthritis of the right foot, 10 percent
* tinnitus, 10 percent

* service-connected, but zero percent for-

* bilateral hearing loss
* 
* service-connection was denied for –

* post-traumatic stress disorder (PTSD)

	b.  the Joint Force Headquarters issued the following:

		(1)  Orders Number 272-022, dated 29 September 2009, which show he was ordered to full-time NG duty for the period 1 October 2009 to 30 September 2010.  

		(2)  Orders Number 274-148, dated 30 September 2008, which show he was ordered to active duty for special work for the period 1 October 2008 to 
28 February 2009.  

		(3)  Orders Number 279-109, dated 6 October 2010, which show he was ordered to full time NG duty for the period 1 October to 31 December 2010.  

		(4)  Orders Number 292-061, dated 18 October 2011, which amended Orders Number 273-096, to show his period of duty was 1 October to 
31 December 2011.

		(5)  Orders Number 302-052, dated 29 October 2010, which show he was ordered to full time NG duty from 22 October 2010 to 30 September 2011. 

	c.  an MFR from the U.S. Army Western Reserve Officers' Training Corps (ROTC) Region, Senior Program, Northeastern State University, dated 6 October 2010, which stated the applicant performed active military duty from 1 October 2008 to 30 September 2009. 

	d.  a self-authored memorandum to the VA, dated 11 June 2012, outlining his health condition as a result of his deployment to Afghanistan from November 2003 to August 2004 and his assignment as an ROTC instructor from August 2008 to April 2012.   

	e.  four personal statements, dated from 2 to 15 June 2012, which indicated the applicant's lower back injuries interfered with the performance of his ROTC duties and he suffers from PTSD. 

8.  On 30 April 2012, he was honorably released from AD at the completion of his required active service and was returned to his ARNG unit.  He completed 
3 years, 8 months and 27 days of net active service this period.  

9.  On 1 March 2013, he was discharged from the OKARNG and transferred to the Retired Reserve.  The NGB Form 22 he was issued showed he completed 
24 years, 2 months, and 4 days of total service for retired pay.

10.  He submitted his VA Rating Decision, dated 26 July 2013, that shows the following decisions regarding his claim, effective 1 May 2012:

* service connection for –

* TBI with PTSD, major depressive disorder, and cognitive disorder, 70 percent 
* chronic lumbar strain (low back condition), 10 percent
* plantar fasciitis with osteoarthritis of the left foot, 10 percent 
* plantar fasciitis with osteoarthritis of the right foot, 10 percent
* tinnitus, 10 percent

* service-connected, but 0 percent for –

* tension headaches 
* bilateral hearing loss

* service-connection was denied for –

* right shoulder condition
* left knee condition 
* right ankle condition
* radioculopathy of right lower extremity
* vertigo
* bilateral flat feet

11.  An advisory opinion was obtained from the NGB, Chief, Personnel Policy Division, dated 27 November 2013, in the processing of this case.  The advisory opinion recommended disapproval and stated:

	a.  the applicant received a 70% rating for TBI and a 50% rating for PTSD from the VA.  He served 3 1/2 years on active duty operational support (ADOS) orders after returning from a deployment to Afghanistan.  However, he did not receive an exit physical.  Based on his injuries he feels he would have met the Army's standard of 30% in order to be medically retired.

	b.  according to Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2(b)(2), the applicant was never found unfit for duty.  It reads when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued perform of assigned duty commensurate with his or her rank or grade until the Soldier is fit.  The presumption of fitness may be overcome if the evidence established that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of the disability.  An acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.

	c.  the patient administration officer at the NGB echoes what the regulation states.  Upon review of all the evidence by the Soldier, it was determined that no permanent profile existed at the time of his separation.  A permanent profile with a rating of "3" in one or more of the PULHES codes served as a catalyst for a Soldier to be referred into the Disability Evaluation System.  The last temporary 
profile with a rating of "3" for the "S" portion of the PUHLES expired approximately 7 months prior to the applicant's requested separation into the Retired Reserves.  The presumption upon a Soldier's separation is that they are fit for duty unless specifically determined otherwise.  None of the evidence overturns this assumption; therefore, a retirement due to physical disability is not warranted.  The State of Oklahoma concurred with this recommendation. 

12.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

	a.  Paragraph 3-1 (Standards of unfitness because of physical disability) 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

	b.  Paragraph 3-2 (Presumptions), subparagraph b, provides that when a Soldier is being separated or retired for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit.  The presumption of fitness can be overcome if the evidence establishes that he/she was unable to perform his/her duties, or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

13.  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 any VA rating does not establish error or injustice by 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, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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 contention that he should have been medically retired while he was on active duty was carefully considered.  

2.  Evidence of record shows the applicant was a member of the OKARNG, a Reserve Component, who was ordered to active duty in support of Operation Enduring Freedom.  Upon completion of his active duty service he was transferred back to the control of the OKARNG and served for an additional 3 1/2 in a variety of full-time NG detail and active duty for special work assignments. 

3.  There is no evidence to show the applicant's medical records were recommended for review by a medical evaluation board (MEB).  Without an MEB, there would have been no basis for referring him to a physical evaluation board (PEB).  Absent a PEB, the applicant could not have been issued a medical discharge or retirement for physical unfitness.

4.  There is no evidence of record and the applicant did not provide any evidence that shows his medical condition would have warranted consideration by a PEB.

5.  Despite the VA rating him at 70 percent, he demonstrated exceptional 11A (Infantry Officer) skills; therefore, there is insufficient evidence that he could not perform his duties.



6.  Additionally, award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically discharge or retired.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service-connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130016769





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ABCMR Record of Proceedings (cont)                                         AR20130016769



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