BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140000328 


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 retired due to physical disability.

2.  The applicant states:

* he should have been medically retired for injuries sustained in Iraq on 6 May 2004 and for resulting post-traumatic stress disorder (PTSD)
* he was diagnosed with PTSD and the Army National Guard (ARNG) deemed he was unfit for service for medical reasons and discharged him
* he was rated by the Department of Veterans Affairs (VA) and he did not know he could have gone through a medical board for retirement
* he was not aware he qualified for a medical retirement and it was brought to his attention through the Wounded Warrior Project
* his medical retirement should be backdated to the date he was honorably discharged from the ARNG

3.  The applicant provides:

* letter from the Social Security Administration, dated 20 July 2006
* two VA rating decisions
* VA correspondence
* Purple Heart Certificate
* DA Form 4187 (Personnel Action)


* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* line-of-duty correspondence
* Headquarters, Arkansas Army National Guard (ARARNG) 
Orders 287-854, dated 14 October 2003
* DA Form 2823 (Sworn Statement), dated 3 June 2004
* DA Form 4700 (Medical Record – Supplemental Medical Data), dated 31 May 2004
* DA Form 689 (Individual Sick Slip), dated 31 May 2004
* Disability Counseling Statement, dated 3 May 2004
* DA Form 4700, Trauma Flow Sheet
* Standard Form 519B (Radiologic Consultation Request/Report), dated 6 May 2004
* VA Progress Notes

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's complete service medical records are not available for review.

3.  After having prior honorable service in the Air Force, the applicant enlisted in the ARNG on 26 July 2002 for a 1-year period.  On 25 July 2003, he extended his enlistment for a 3-year period.

4.  On 12 October 2003, he was ordered to active duty in support of Operation Iraqi Freedom and subsequently deployed to Iraq.




5.  A self-authored DA Form 2823, dated 6 May 2004, indicates a vehicle-borne improvised explosive device (VBIED) went off at the front entrance of the check point.  As the applicant and a translator were walking back to their position during a personal identification search there was a loud explosion to the rear.  The applicant grabbed the translator and threw her to the ground.

6.  His Record of Audiological Evaluation, dated 31 May 2004, shows he was assigned a physical profile rating of 3 for some hearing loss.  His commander had the option of sending him before a medical evaluation board (MEB) to determine if his hearing would interfere with his duties.  He was recommended for a Speech Recognition in Noise Test.  The records are void of evidence and the applicant fails to provide evidence of such test results.

7.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 1 June 2004, shows the applicant's injury that was incurred on 6 May 2004 was in the line of duty.  He suffered a minor shrapnel wound to his neck and hearing loss from the explosion.

8.  A self-authored DA Form 2823, dated 3 June 2004, stated he was on duty at a checkpoint when a VBIED blew up 30 feet from the tower.  A piece of shrapnel lodged in his neck and his hearing had not been the same since the explosion.  He had a constant ringing in both ears and he could not hear as well as he could before the explosion.

9.  On 2 April 2005, he was honorably released from active duty to the control of his ARNG unit by reason of completion of required active duty service.

10.  On 22 November 2005, the applicant was honorably discharged from the Arkansas ARNG (ARARNG) under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), by reason of being medically unfit for retention.  His NGB Form 22 shows he served on active duty in support of Operation Iraqi Freedom during the period 12 October 2003 through 2 April 2005.

11.  His records are void of and he fails to provide evidence showing the basis for being found "medically unfit for retention." 

12.  He provided:

* two VA rating decisions, dated 15 September 2005 and 24 February 2007, showing he was awarded a 50-percent disability rating for PTSD, a 
10-percent disability rating for tinnitus, and a 0-percent disability rating for hearing loss
* VA Statement from Benefit Payment Records, dated 5 March 2007, showing he received Tax Code 1 for being rated 100-percent service-connected, totally and permanently disabled
* letter from the Social Security Administration, dated 20 July 2006, explaining his social security payments
* VA correspondence and extracts of Progress Notes showing his treatment
* extracts of his line-of-duty investigation package
* orders to active duty
* sworn statements describing the circumstances of his hearing loss

13.  There is no evidence of record that shows the applicant requested a separation medical examination and his complete medical records are unavailable for review.  Additionally, there is no evidence he was diagnosed with PTSD during his active duty service.

14.  National Guard Regulation 600-200, chapter 8, prescribes the policies and procedures for separation of enlisted personnel by appropriate State authorities.  Paragraph 8-26j(1) provides for the separation of enlisted personnel for medical unfitness for retention.  It provides that commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501 (Standards of Medical Fitness) and National Guard Regulation 40-501 (Standards of Medical Fitness).  Commanders who do not recommend retention will submit a request for the Soldier's discharge to the State Adjutant General.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, 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.  The regulation states that under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits:

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

	b.  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

16.  Army Regulation 135-178 (ARNG and Army Reserve – Enlisted Separations), in effect at the time, established the policies, standard, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.  Paragraph 12 provided guidance for the separation of Soldiers who were medically unfit for retention.  It stated discharge would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness under the provisions of Army Regulation 40-501, unless the Soldier requested and was:

	a.  granted a waiver under Army Regulation 40-501, as applicable;

	b.  determined fit for duty under a non-duty related physical evaluation board fitness determination under the provisions of Army Regulation 635-40; or

	c.  eligible for transfer to the Retired Reserve under the provisions of Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers).

17.  Army Regulation 40-501, chapter 3, in effect at the time, provided standards for medical retention.  

   a.  It stated that trained and experienced personnel would not be categorically disqualified if they were capable of effective performance of duty with a hearing aid.  Most Soldiers having a hearing defect could be returned to duty with appropriate assignment limitations.  Soldiers incapable of performing duty with a hearing aid would be referred for MEB or physical evaluation board processing.

	b.  A profile containing one or more numerical designators of “3” signified that the individual had one or more medical conditions or physical defects that required significant limitations.

	c.  Persistent post-traumatic sequelae, as manifested by headache, vomiting, disorientation, spatial disequilibrium, personality changes, impaired memory, poor mental concentration, shortened attention span, dizziness, altered sleep patterns, or any findings consistent with organic brain syndrome were identified as disqualifying until full recovery had been confirmed by complete neurological and neuro-psychological evaluation.

18.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  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 contends that he should have been medically retired due to physical disability, based on the injuries he received in Iraq and the PTSD that resulted from his injuries.

2.  On 22 November 2005, while assigned to the ARARNG, he was separated under the provisions of National Guard Regulation 600-200, paragraph 8-26j(1), by reason of being medically unfit for retention.

2.  His records are void of evidence and he failed to provide evidence showing PTSD limited his ability to perform his duties.  Further, there is no evidence he was required or was recommended for an MEB or any form of physical disability processing prior to his discharge from the ARARNG.

3.  Although his specific unfitting condition(s) warranting separation is unknown, his ARNG service was terminated when it was determined that he was medically unfit for retention.  He does not provide the medical evidence that resulted in his being separated for being medically unfit for retention.

4.  In the absence of medical evidence to the contrary, it is presumed that the applicant was properly separated from the ARNG.  

5.  Further, his records are void of evidence and he fails to provide evidence showing he was diagnosed with or suffered from PTSD while he was on active duty and that is what caused him to be separated for being medically unfit for retention.

6.  The fact that the VA granted him a service-connected disability rating for PTSD shortly after his discharge from active duty has no bearing in this case.  A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the ARNG.  The VA awards ratings because a medical condition is "service-connected" and affects the individual's civilian employability.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty.  Furthermore, the VA can evaluate a veteran throughout 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 no basis for granting the applicant's request.


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 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)                                         AR20140000328



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000328



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1