BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20130020501 


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 correction of his records to show he was medically retired.

2.  The applicant states:

* He was diagnosed with post-traumatic stress disorder (PTSD) in 2006
* He had a back injury along with right shoulder injuries
* He never met with a medical board
* He was on medical hold for 6 months after returning to the United States
* He spent 90 days in mental health at Charlie Norwood Department of Veterans Affairs Medical Center (VAMC), Augusta, Georgia

3.  The applicant provides:

* VA Rating Decision, dated 2 April 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 February 2006
* VA letter, dated 12 January 2009
* Moncrief Army Community Hospital Medical Records
* Chronological Records of Medical Care
* Chronological Record of Dental Care
* Optometry Examination Record
* Report of Medical Assessment
* Post-Deployment Health Assessment
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DA Forms 3349 (Physical Profiles), dated 20 September 2005
* Memorandum for Record, dated 2 March 2006 and his Original 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 South Carolina Army National Guard (SCARNG) on 30 September 1977, for 6 years.  He completed training as an administrative specialist.  He remained a member of the SCARNG through continuous reenlistments and extensions.

3.  On 15 July 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom.

4.  The applicant's DA Form 2173 shows he was injured in the line of duty on 25 October 2004, when he was setting up a .50 caliber machinegun and ammunition on a “CEP.”  By the time he was done, he felt pain.

5.  On 20 September 2005, the applicant was placed on temporary physical profiles for right shoulder pain and for left plantar fasciitis tendonitis.  One of his physical profiles included no lifting due to back limitations.  

6.  The applicant departed Iraq en-route to the United States on 22 September 2005.

7.  The applicant was honorably released from active duty on 28 February 2006, upon completion of his required active service.

8.  On 28 May 2006, the applicant was honorably discharged from the SCARNG and he was transferred to the Retired Reserve.

9.  A review of the applicant's Army medical records fails to reveal a diagnosis of PTSD while he was in the ARNG.

10.  The applicant's VA Compensation and Pension Examination Inquiry shows that as a result of a positive screening, his initial evaluation for PTSD was requested by the VA Regional Office, Columbia, South Carolina, on 18 October 2006.  He was evaluated on 6 November 2006 and the diagnostic impression was:

* Axis I – PTSD, mild to moderate
* Axis II – No diagnosis
* Axis III – 1) Diabetes, 2) Hypertension, 3) Erectile Dysfunction, and 4) Right Shoulder Pain

11.  A review examination for PTSD was requested on 27 November 2007.  The Compensation and Pension Examination Inquiry shows he was awarded service- connected disability ratings for the following conditions:

* Degenerative arthritis of the spine – 10 percent
* PTSD – 50 percent
* Traumatic arthritis – 10 percent
* Hemorrhoids – 0 percent
* Diabetes mellitus – 10 percent
* Hypertensive vascular disease – 0 percent

12.  General Remarks on the Compensation and Pension Examination Inquiry provide the following:

	a.  Veteran claims increased disability evaluation for right shoulder (joint exam), currently evaluated as 10 percent disabling.  Please examine and provide a diagnosis.  Include range of motion, x-rays, and any weakness or fatigue after three repetitive uses.

	b.  PTSD (PTSD exam), currently evaluated as 50 percent disabling.  Please examine for PTSD and provide an Axis I diagnosis.  Include all symptoms and overall impairment in social and occupational functioning.

13.  Enclosed with a letter from the VA dated 12 January 2009, the applicant was furnished a certificate for his use in obtaining commissary store and exchange privileges from the Armed Forces.  The letter states that it is to certify that the applicant "is an honorably discharged veteran of the Army, and has a service-connected disability evaluation at 100 percent.  The veteran has not been scheduled for future examinations."

14.  VA Rating Decision dated 2 April 2010 shows the following conditions are subject to compensation:

* PTSD – 50 percent from 1 March 2006, 100 percent from 29 October 2007, and 70 percent from 1 February 2008
* Degenerative Disc Disease of the Cervical Spine – 10 percent from 27 November 2006 and 20 percent from 15 February 2008
* Degenerative Joint Disease of the Right Shoulder – 10 percent from 1 March 2006
* Diabetes Mellitus, Type II – 10 percent from 12 June 2006
* Diskogenic Disease at L3-4 with Spondylosis (claimed as Lumbar Spine Condition) – 10 percent from 30 April 2008
* Hemorrhoids – 0 percent from 1 March 2006
* Hypertension – 0 percent from 12 June 2006

15.  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.  Medical Evaluation Boards (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.

16.  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.


17. 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.

18. 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.  The available records do not show that he was unfit at the time of his discharge and transfer to the Retired Reserve.  There is no evidence to show he was given any profile (temporary or permanent) for any mental condition.

3.  His records show that he was placed on a temporary profile for right shoulder pain.  He also had additional medical conditions, and 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 right shoulder pain while he was in the Army.  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 has provided insufficient evidence to support his contention that he should have been retired by reason of physical disability.  There is insufficient evidence in his record and the applicant has provided insufficient evidence showing that his conditions were severe enough to prevent him from performing his duties and 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)                                         AR20130020501



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ABCMR Record of Proceedings (cont)                                         AR20130020501



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