IN THE CASE OF:	  

		BOARD DATE:	  6 August 2014

		DOCKET NUMBER:  AR20130019056 


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, disability separation or retirement.

2.  The applicant states:

	a.  Disability separation or retirement was intended by his chain of command but never executed.  

	b.  He suffers from a long list of disabilities sustained in combat.

	c.  He was placed on permanent and temporary profiles in late 2007 and was unable to work due to his injuries until 17 May 2010, at the expiration of his term of service.

	d.  On 18 May 2010, he was granted 100 percent permanent unemployability by the Department of Veterans Affairs (VA) due to his service-connected injuries.

	e.  His chain of command was simply unable to find out who was in charge of getting the Medical Evaluation Board (MEB) process officially started and executed.

	f.  This mistake now affects his family and their future.

3.  The applicant provides:

* Army Review Boards Agency letter, dated 19 September 2013
* DD Form 149 (Application for Correction of Military Records), dated 16 August 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 17 May 2010
* Self-authored statement and problem list, dated 15 August 2013
* VA Rating Decision, dated 9 March 2012
* Licensed Clinical Social Worker's Letter, dated 23 January 2013
* National Veteran Caregiver Training Program Certificate, dated 20 February 2012
* Return to Work/School Notification, dated 28 July 2009
* Individual Sick Slip, dated 30 July 2009
* Physical Profiles
* Developmental Counseling Forms
* Three self-authored statements
* Six supporting statements from his friends and family members attesting to his health deterioration after returning home from the Army
* Seven supporting statements from medics and "Battle Buddies" attesting to the applicant's medical conditions
* Permanent Orders 297-402, dated 24 August 2006
* VA Progress Notes and Chronological Records of Medical Care
* Memorandum for Commander, Soldier's Unit regarding assignment of Soldiers with Complex Medical Needs to the Warrior Transition Unit
* Operative Report, dated 10 February 2010
* Readiness and Deployment Checklist
* Record of Emergency Data
* Screening Notes and Chronological Records of Medical Care
* Military Medical Records

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 9 October 2003.  He completed training as a health care provider.  

3.  Screening Notes of Acute Medical Care show that the applicant had been complaining of knee pain as early as 18 November 2003 when he was seen by medical personnel at the Troop Medical Clinic at Fort Sill, Oklahoma.  According to the applicant, he had been experiencing knee pain for approximately 1 week.

4.  He arrived in Iraq on 18 November 2005.  He departed Iraq en-route to the United States on 18 November 2006.  He reenlisted in the RA on 18 May 2007.

5.  The applicant provides medical documentation which shows he was placed on a permanent profile on 31 October 2007, for knee strain.  On 8 September 2008, he was placed on a temporary physical profile for back and knee pain.  

6.  A Traumatic Brain Injury (TBI) Questionnaire was completed on the applicant on 23 September 2008, at General Leonard Wood Army Community Hospital (GLWACH).  He was diagnosed with TBI with symptoms.  It was determined that he was not deployable.

7.  The applicant's Chronological Record of Medical Care shows he was seen at GLWACH on 28 October 2008 for the purpose of discussing the medical board process.

8.  On 6 December 2008, he was placed on a temporary physical profile for back and knee pain.  

9.  The Developmental Counseling Forms the applicant provides shows that during his counseling on 8 December 2008, it was stated that he had not started the Medical Review Board (MRB) process and that his physician was waiting to measure outcome for his then current course of treatment.  The counselor stated it was his understanding that if treatment was deemed unsuccessful an MRB would be started.  The applicant was told if an MEB was started for him an application for admittance to the WTU would be submitted.  He was told that if the packet was accepted he would be reassigned to the WTU.  During his counselings it was stated several times that he was unable to participate in physical training or to reenlist due to his medical conditions and that he and his primary care manager (PCM) would start the MEB process after his course of treatment.

10.  The applicant's Chronological Record of Medical Care shows he was seen at GLWACH on 30 July 2009 to have his temporary physical profile updated and his medications refilled.  

11.  On 21 September 2009, the applicant was seen at the Springfield Neurological & Spine Institute for a follow-up to his original 24 April 2009 appointment for low back pain.  The doctor's impression was back pain, neuritis lumbosacral, and lumbar disc displacement.  The doctor noted that 
Post-Traumatic Stress Disorder (PTSD) was a known diagnosis and it was likely contributing to complaints of headaches, memory loss, anger issues, and possibly chronic pain.  He was encouraged to seek counseling.

12.  He was seen again at GLWACH on 11 December 2009, to have his temporary physical profile for back pain renewed.  During this visit, he stated that his wife believed he was depressed and angry and he denied any diagnosis of PTSD.  He stated he had a discectomy in August 2009 and had been to physical therapy after surgery.  He stated that his unit wanted him evaluated for an MEB and he wanted to discuss a psychiatric referral.

13.  On 10 February 2010, the applicant underwent a diagnostic arthroscopy.  He had a large medial plica which appeared to be causing cartilage damage over the superomedial aspect of the medial femoral condyle.  He had a small nondisplaceable tear at the posterior horn of the medial meniscus which was debrided.  His medial plica was debrided.  All instruments were removed from his knee and the portal sites were closed.

14.  On 11 March 2010, he was placed on a temporary physical profile for back pain after surgery.

15.  On 17 May 2010, the applicant was honorably released from active duty at the completion of his required active service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve).  He received a Reentry Eligibility (RE) code of RE-1.

16.  VA Rating Decision dated 9 March 2012 shows that his original disability claim was received on 18 August 2010.  He was rated and awarded a combined service-connected disability rating of 80 percent from 18 May 2010 for the following conditions:

* PTSD (50 percent)
* Migraine Headaches (30 percent)
* Degenerative Disc Disease, Lumbar Spine (20 percent)
* Residual Arthralgia of the Left Knee (10 percent)
* Bilateral Tinnitus (10 percent)
* TBI (10 percent)
* Left Knee Scar (0 percent)
* Scar Lumbar Spine (0 percent)

17.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states that prior to discharge or REFRAD, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, USAR, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  An RE code 1 applies to persons fully qualified for reenlistment.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states:

	a.  MEB/Physical Evaluation Boards (PEB) are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

	b.  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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired.

19.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a 
determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

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

21. 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.  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.  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.  The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, disability separation or retirement.

2.  Although the available record is void of any formal mental status evaluation, the available evidence shows he had a PTSD and a TBI diagnosis prior to his REFRAD.  However, the available records do not show that he was unfit at the time of his REFRAD.  There is no evidence to show he was given any profile (temporary or permanent) for any mental condition.

3.  His records show that although he was placed on temporary and permanent profiles for knee strain, knee pain and back pain, these conditions, while they may have limited his abilities, there is insufficient evidence to show they resulted in him being considered unfit to perform his duties.

4.  His records show he had knee and back surgeries while he was in the Army for his conditions.  Based on the available evidence, the course of treatment decided upon by his physician, was successful and resulted in his being determined to be able to perform the duties expected of an individual in his rank and specialty.  

5.  The applicant's records show that he spoke with several physicians regarding the medical board process.  It is unreasonable to presume that no one knew the proper procedures for processing a Soldier through medical channels.  There is insufficient evidence in his record and the applicant has provided insufficient evidence showing that his conditions were severe enough to process him for separation through medical channels.

6.  In view of the foregoing, the applicant's request should be denied.


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)                                         AR20130019056



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ABCMR Record of Proceedings (cont)                                         AR20130019056



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