IN THE CASE OF

		BOARD DATE:	    15 July 2014

		DOCKET NUMBER:  AR20130018083 


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, reconsideration of a previous application to correct his record to show he was placed on the Temporary Disability Retired List (TDRL) and medically retired.

2.  The applicant states, in effect, that he was medically unfit for further service at the time of his release from active duty; therefore, he should have been medically retired.  His injuries/medical conditions prevented him from reenlisting and caused him to be extended on active duty in order to complete healing; however, his conditions were not properly evaluated in accordance with Army Regulation 40-501 (Standards of Medical Fitness) which requires that anxiety disorders and adjustment disorders due to physical disability be, at a minimum, referred to a Medical Evaluation Board (MEB).

3.  Subsequent to his release from active duty he was evaluated by the Department of Veterans Affairs (VA) and awarded a retroactive100% service-connected disability rating for Post-Traumatic Stress Disorder (PTSD) and he also received award of 0% to 20% for other medical conditions.  He was never issued either a temporary or permanent profile for his injury and had he been given a temporary profile with evaluation after 30 days, his injury would have warranted a permanent profile requiring review by an MEB.

4.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Chapman University School of Law Appeal Letter submitted to the Traumatic Servicemembers' Group Life Insurance (TSGLI) Appeals Board, dated 6 June 2010
* Request for Retroactive Stop Loss Pay, Claim Confirmation Number RSL00090148
* VA Rating Decision, dated 14 October 2004, 25 October 2005, and
17 December 2011
* DA Form 149 (Application for Correction of Military Record) - Request for award of the Purple Heart
* TSGLI Electronic Payment Notification, dated 14 August 2009
* Aeromedical Evacuation Patient Record
* three affidavits in support of his TSGLI appeal
* photographs of his injury
* Family Members Special Guest Pass
* newspaper and medical journal articles

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 AR20120003991, on 27 November 2012.

2.  During the original review of the case, the Board found the applicant had no diagnosed unfitting conditions at the time of his discharge that required processing through the Physical Disability Evaluation System (PDES) and, as a result, there was no basis to grant the applicant's requested relief.

3.  The applicant submitted his TSGLI claim and current VA rating decisions which were not previously considered by the ABCMR.  Therefore, this is considered new evidence and as such, warrants consideration by the Board.

4.  The applicant enlisted in the Regular Army (RA) on 16 August 1999.  He completed training as an infantryman and he served in Iraq from 26 March to 
15 September 2003.

5.  The applicant provides medical records which show:

	a.  On 20 August 2003, he was treated at the Landstuhl Regional Medical Center, Germany, for a fractured right femur which occurred on 16 August 2003 when a humvee rolled over on him in Iraq.  He underwent surgery on 21 August 2003.
	b.  He received follow-up treatment in Vicenza, Italy between 1 December 2003 - 23 January 2004.  These records show the applicant complained of pain around his knee but that medical notes indicated his injury was healing.  He was prescribed several medications and physical therapy.

	c.  On 5 April 2004, the applicant complained of his inability to perform the duties of his military occupational specialty (MOS) and to complete the Army Physical Fitness Test (APFT).  He requested an MEB.  The physician's assistant noted that the applicant's right femur was healed and directed continued physical therapy with a follow-up on 21 April 2004 with Dr. K.

6.  His available record is void of evidence to show he was issued either a temporary or permanent physical profile or that he was ever referred to a MEB/Physical Evaluation Board (PEB).

7.  There are no personnel records showing he could not perform the duties of his MOS, complete an APFT, or was denied reenlistment.

8.  On 30 May 2004, the applicant was honorably released from active duty and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) at the completion of his required active service.  He completed 
4 years, 9 months, and 15 days of creditable active service.  His reentry code is shown as 1, fully eligible to reenlist without waiver.

9.  There are no accompanying service medical/treatment records or other documentation that show he was diagnosed with PTSD prior to his separation from the Army.  Additionally, his records do not indicate that he suffered from an injury, illness, or any medical condition that would have warranted his entry into the Army's PDES.

10.  The applicant provides VA Rating decisions which show he was rated as follows:

	a.  On 25 October 2005:

* PTSD previously rated at 30% and was increased to 100%, effective 
1 June 2004
* residuals, status post right femur fracture and external fixation that had been rated at 10% and was increased to 20%, effective 1 June 2004
* lumbosacral strain that was rated at 10%, effective 1 June 2004
* right knee strain that was rated at 0%, effective 1 June 2004
* left knee strain that was rated at 0%, effective 1 June 2004
	b.  On 17 December 2011, his 100% PTSD disability rating was continued.  No other medical conditions are listed on this document.

11.  In addition, he provides:

	a.  His TSGLI appeal with supporting documents.  His counsel argued in a letter, dated 6 June 2010, that although the applicant had been awarded a TSGLI benefit in the amount of $25,000, that he was also entitled to an additional Activities of Daily Living (ADL) benefit of $50,000 because he required assistance at least 60 days after the first 30-day milestone.  His counsel stated, "The injury (fractured femur) was so traumatic that it ended his career and he has been granted100% disability rating from VA."  As part of his TSGLI appeal the applicant also provided affidavits from himself, his mother, and a fellow Soldier.  All of them attest to the fact that the applicant's injury made him unable to perform several activities of daily living such as bathing, dressing, toileting, and transfer without assistance for approximately 90 days after his initial injury.

	b.  A previous request for award of the Purple Heart (administratively closed without action by this Board), a request for Retroactive Stop Loss Pay, a newspaper article describing the wounds and diseases of combat veterans, and an article from the Journal of Bone and Joint Surgery discussing Intramedullary nailing of femoral shaft fractures and fracture-healing with static interlocking fixation. 

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth the 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 states in:

	a.  Paragraph 3-1 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 his or her office, grade, rank, or rating.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

	b.  Paragraph 3-9 provides guidance for the TDRL.  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30% or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

	c.  Chapter 7 states the physical profile serial system is based primarily upon the body systems and their relation to military duties.  Four numerical designations are used to reflect different levels of functional capacity.  The numerical designator is not an automatic indicator of "deployability," assignment restrictions, or referral to an MEB.  The conditions listed in chapter 3 and the Soldier’s functional limitations, rather than the numerical designator of the profile, will be the determining factors for MEB processing.

	d.  Paragraph 7-4 of this regulation provides guidance on permanent versus temporary physical profiles and states a profile is considered permanent unless a temporary modifier is annotated, as described under the subparagraph for temporary profiles.  All permanent "3" and "4" profiles, for Soldiers on active duty, will be reviewed by an MEB physician or physician approval authority.  It also provides that a temporary profile is given to Soldiers receiving medical or surgical care or recovering from illness, injury, or surgery.  These Soldiers will be managed with temporary physical profiles if the condition is temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity.  It further provides that Soldiers on active duty with a temporary profile will be medically evaluated at least once every 3 months, at which time the profile may be extended by the profiling officer.

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.

14.  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 requests reconsideration of his previous request to be medically retired.

2.  The fact that the applicant sustained a serious facture to his right femur while serving in Iraq and later received TSGLI ADL compensation for his injury is not in question; however, this is insufficient evidence to show that his injury was determined to be unfitting and warranted referral to an MEB.  In fact, the medical evidence provided by the applicant shows that his fractured right femur was reported as "healed" by the physician's assistant on 5 April 2004, which was less than 60 days prior to his release from active duty on 30 May 2004.  Further, there are no personnel records such as performance evaluations or counseling statements that corroborate that the applicant's injury rendered him unable to perform his military duties or complete an APFT.

3.  Regulatory guidance requires that a temporary physical profile be issued during the period a Soldier is receiving treatment for an injury or an illness, but the available record does not confirm or deny that the applicant was issued any type of physical profile.  Permanent profiles with numerical designator of 3 or 4 will be referred to an MEB/PEB.  In either case the issuance of a profile with such a numerical designation is not an automatic indicator of "deployability," assignment restrictions, or referral to an MEB, rather the Soldier's functional limitations will be the determining factors for MEB processing.

4.  The available record does not show and the applicant did not provide sufficient evidence to show that he was diagnosed with PTSD or any other mental condition that would have warranted his entry into the PDES during his period of service.  Medical retirement is based on the existence of a condition that did not meet retention standards.  The fact that the VA, in its discretion, awarded him a PTSD disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

5.  In the absence of any medical evidence to the contrary, administrative regularity is presumed in the applicant's separation process.

6.  In view of the foregoing, there remains an insufficient evidentiary basis to support amendment of the original Board decision and/or to grant the 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 to amend the decision of the ABCMR set forth in Docket Number AR20120003991, dated 27 November 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)                                         AR20130018083





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130018083



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1