IN THE CASE OF:	 

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130020309 


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 the following:

* correction of his records to show award of the Purple Heart
* correction of noted comments contained in his military medical records

2.  The applicant states:

   a.  He thought that his unit would have the integrity to add his award in the Integrated Personnel Management System and it was never submitted.

   b.  The Purple Heart was revoked due to unjust/false documentation in his medical records in 2010 after his deployment in support of Operation Iraqi Freedom (OIF) where he was hurt in the line of duty.  He was injured from an improvised explosive device (IED) blast while on a mission.  He believes the doctor wrongly noted information in his medical records that was untrue about him seeking drugs for his pain.  He never received a negative drug test.  He believes his award of the Purple Heart should be granted given the circumstances.  He earned the Purple Heart for being injured by the enemy while deployed.  He served in Iraq and Afghanistan numerous times.

   c.  He was not aware of the injustice until after his discharge on 25 October 2013.  Major (MAJ) Bxxxxxxx indicated in his medical file that he sought drugs and cancelled his Medical Evaluation Board (MEB).  He requests his records be expunged of drug seeking opinions.  

   d.  He just wants the best care for his service and the injuries he sustained fighting for his country.  It is very detrimental to his care from the Department of Veterans Affairs (VA) if he is labeled a drug seeker.  He was wrongfully labeled and his medical care is being affected by MAJ Bxxxxxxx's opinion.  If he were a drug seeker as she assumed, then he would have failed a random test given by the Army National Guard (ARNG).

   e.  He also requested the VA to stop his pain medications because leaving him on them for 3 years after his injury did not fix the problem.  Under no circumstances was he a drug seeker as his pain was real.  As a result of this notation in his records, he was denied processing under the MEB and his Purple Heart eligibility was revoked.  Even though he was denied and falsely labeled, he decided to reenter on active duty because he wanted to continue to serve his country.  When he was deployed to Afghanistan, he was once again hurt and was returned home.  He was then assigned to the Warrior Transition Unit (WTU) as a result of his injuries.

   f.  He was assigned to the WTU to undergo medical treatment and an MEB.  As he received his medical treatments, he was labeled and treated as a drug seeker because of the previous note from 2010 in his medical records after his Iraq tour.  The doctors were not helpful in providing him with the medications that he needed for his injuries and pain because they thought he was making up the pain in order to receive drugs.  During his time at the WTU, he was accused and treated as a drug addict when all he wanted was to receive treatment for his injuries.

   g.  The doctors were not professional in performing their duties and giving him the best available care for his specific injuries and did not take his concerns about his health seriously.  Now that he has been discharged, it is difficult to get help from the VA for his military-related injuries.  The VA is refusing to reinstate the previous benefits he had before he reentered on active duty in 2012.  He is being denied veterans benefits.  Given that he never had a negative drug test during his time in the service and he did not use any type of illegal drugs, he is requesting the opportunity to defend himself and his honor.  

3.  The applicant provides copies of the following:

* DA Form 3349 (Physical Profile)
* DA Form 4700 (Medical Record-Supplemental Medical Data)
* seven Standard Forms (SF) 600 (Health Record – Chronological Record of Medical Care)
* 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.  Army Regulation 15-185 (ABCMR), paragraph 2-5, the regulation under which this Board operates, states that the Board will not consider any application if it determines that the individual has not exhausted all administrative remedies available to you.  There is no evidence to show the applicant  submitted his request for award of the Purple Heart to the Commander, U.S. Army Human Resources Command, ATTN: Veteran Services, 1600 Spearhead Avenue, Fort Knox, KY 40121-5743, and was denied relief for this award.  The criteria and process for award of the Purple Heart are contained in paragraph 2-8, Army Regulation 600-8-22 (Military Awards).  Therefore, as a result of his request for correction of your records to show award of the Purple Heart will not be further discussed in this Record of Proceedings.

3.  The applicant enlisted in the Tennessee ARNG (TNARNG) on 22 June 2006.  He served as a quartermaster and chemical equipment repairer.  

4.  He was ordered to active duty in support of OIF and entered active duty on 7 June 2007.  He served in Iraq from 20 July 2007 through 2 February 2008.  He was honorably released from active duty on 16 August 2008.  His DD Form 214 lists the:

* Iraq Campaign Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Armed Forces Reserve Medal with "M" Device

5.  He was ordered to active duty in support of OEF and entered active duty on 28 February 2009.  He served as a combat engineer.
6.  He provided copies of the following:

   a.  A DA Form 3349, dated 21 December 2009, wherein he was assigned a permanent profile of 1-3-3-1-1-2 for an injury caused by a roll over military vehicle accident in 2005 in Iraq resulting in chronic back pain, right wrist pain status-post reconstructive surgery, sleep disorder, ankle strain, and a mallet finger.  The form shows in:

		(1)  Item 4 (Profile Type) contains the entry, "If a permanent profile with a 3 or 4 PULHES, does the Soldier meet retention standards IAW [in accordance with] Chapter 3, AR [Army Regulation] 40-501 [Standard of Medical Fitness.  This block was not annotated to indicate he needed an MEB.

		(2)  Page 2 indicated he fell below minimum retention standards IAW AR 40-501, chapter 3.

   b.  A DA Form 4700, dated 21 December 2009, wherein the State Surgeon stated:

		(1)  On 20 December 2009, the applicant's damage to his right wrist required the applicant to be medically evacuated out of theater for surgery rerouting major tendons in the wrist to improve function.  An injury to the applicant's back was allegedly reported to the best of the Soldier's recollection.  No magnetic resonance imaging (MRI) of the spine was performed.  The applicant had been on multiple pain medication regimes to include narcotic medications without relief of pain in his back.  

		(2)  The applicant reported that wearing interceptor body armor increased discomfort when riding in vehicles over rocky or rough terrain and increased discomfort to the point that he must take narcotic pain medication and was combat ineffective for several days to weeks after the mission.

		(3)  On 15 July 2009, the applicant underwent deformity finger surgery as a result of damaging his left ring finger while playing basketball in early April 2009.

		(4)  On 4 October 2009, the applicant twisted his left ankle while playing softball.

		(5)  On 29 June 2009, the applicant presented himself to Dr. Kxxxxx with a complaint of back and wrist pain and requested a stronger pain medication.  The doctor noted that she had seen the applicant numerous times for chronic back pain. 
		(6)  The State Surgeon cited the requirements of AR 40-501, chapters 12, 30, 33, and 39.

   c.  An SF 600 shows he received treatment on 13 May 2009 for bursitis and pain in the leg.  He stated that he was running out of the room during a mortar attack and tripped on rocks causing him to tumble onto his right knee. 

   d.  An SF 600 shows he had an appointment on 4 January 2010 for an OIF/OEF concussion screening and a review of his medication history.  He was diagnosed with lumbago and he was cleared for transfer to continental United States for continued care.

   e.  An SF 600 shows he was seen at the Warrior Care Clinic, Fort Campbell, KY, on 11 January 2010 for a post-deployment examination.  Dr. Bxxxxxxx stated:

		(1)  The applicant stated, "The Percocet isn't helping with his pain and "whoever gave him his Morphine shot said to ask her about Dilaudid."  "He deployed on Xanas as well."  The doctor also noted that the applicant stated, "He did not want an MEB."  She explained the WTU to him and gave him a profile.  

		(2)  Her impression was that the applicant was drug seeking and she explained to the applicant that if he truly wanted to remain in the military then he needed to get off all controlled substances.

   f.  An SF 600, dated 10 February 2010, wherein Dr. Bxxxxxxx stated:

		(1)  In reviewing the applicant's VA records she questioned the integrity of the applicant's claims to the VA.  The applicant was never diagnosed with post-traumatic stress disorder (PTSD) per his records.  In fact he had multiple negative screen documents to include a negative traumatic brain injury (TBI) screen completed at Landstuhl Regional Medical Center.  His back MRI was essentially normal.  They did not use narcotics to treat musculoskeletal back pain.  

		(2)  Her interaction with the applicant was highly suggestive of drug seeking behavior.  Not only should the applicant be released from active duty, she would also like to talk with his ARNG command about possible drug abuse problems.



7.  He was honorably released from active duty on 28 March 2010.  His DD Form 214 lists the:

* Afghanistan Campaign Medal with one bronze service star
* Iraq Campaign with two bronze service stars
* Joint Service Achievement Medal
* Army Achievement Medal (2nd Award)
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* Armed Forces Reserve Medal with "M" Device (2nd Award)
* North Atlantic Treaty Organization Medal
* Combat Action Badge

8.  He again entered active duty in support of OEF on 21 October 2012.  

9.  He also provided copies of the following:

   a.  An SF 600 which shows he underwent a primary care screening on 26 April 2013 at the Warrior Care Clinic, Fort Campbell, KY.

   b.  An SF 600, dated 7 May 2013, which shows he received a provisional diagnosis for TBI.  Dr. Bxxxxxxx noted:

		(1)  A review of the applicant's Post-Deployment Health Assessment (PDHA) showed no complaints after his first and most recent deployments.  The applicant was exposed to an IED blast during his 2010 deployment, but was asymptomatic afterwards and his review of symptoms/complaints was not clinically warranted post-concussive effects as more as they reflect anxiety and disorganized thinking.  

		(2)  The applicant persevered over his attention deficit and hyperactivity disorder (ADHD) and need for medication so she would have the applicant do Integrated Vulnerability Assessment (IVA) with follow-up. She wrote she did not think any further TBI evaluations or treatment was indicated.

   c.  An SF 600 shows he received treatment at the Warrior Care Clinic on 20 May 2013. 


10.  He was honorably released from active duty on 25 October 2013.  His DD Form 214 shows he served in Afghanistan from 11 November 2012 through 14 February 2013.  The form also lists the:

* Iraq Campaign Medal with two bronze service stars
* Joint Service Achievement Medal
* Army Achievement Medal (2nd Award)
* Army Reserve Components Achievement Medal (2nd Award)
* National Defense Service Medal
* Afghanistan Campaign Medal with two bronze service stars
* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal (Iraq)

11.  There is no evidence in his record he was scheduled for an MEB during his period of active duty.

12.  On 17 March 2014, he extended his enlistment in the TNARNG and he is currently serving in an active status.

13.  Army Regulation 635-40, in effect at the time, set forth policies for the disposition of Soldiers found unfit because of physical disability which prevented reasonably performance of the duties of his/her officer, grade, rank, or rating.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record and he did not provide sufficient evidence showing the comments rendered by the doctor in his military medical records are inaccurate, unjust, or biased.  It appears the noted information presents a fair diagnosis of the applicant by this doctor.  

2.  There is also no evidence and he did not provide sufficient evidence that indicates any of his conditions were medically unfitting and required physical disability processing.  As evidenced by the SF 600, dated 11 January 2010, he stated that he did not desire an MEB.

3.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed. Therefore, absent convincing independent and verifiable evidence to the contrary, it is presumed that the applicant's military service record, including his medical record, were correct at the time.
4.  Based on the foregoing, he is not entitled to 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 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)                                         AR20130020309



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ABCMR Record of Proceedings (cont)                                         AR20130020309



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