IN THE CASE OF:  	  

		BOARD DATE:  18 November 2014	  

		DOCKET NUMBER:  AR20140001806 


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 reconsideration of his earlier request for correction of his records to show he was medically retired by reason of disability vice honorably discharged from the New York Army National Guard (NYARNG). 

2.  The applicant states:

	a.  First, he would like to address his request for the date the retirement would begin.  He believes it should be April 2006, not 2005 as was previously requested.  Although he was on medical hold at Fort Drum, NY for behavioral health, he was primarily there to have the hernia repair surgery and to have his traumatic brain injury (TBI) examined by a magnetic resonance imaging (MRI).  However, after an 18-month deployment of not seeing his wife and newborn son, he would have said anything to go home.  He believes his symptoms of post-traumatic stress disorder (PTSD) and TBI from late 2004 through 2006 were so obvious and recorded that someone, if not many people above him in the medical chain of command, failed him.  He has located a physical profile which indicates a number (3) under physical.  He can't explain why there is not one under the psychological factor.  He also can't explain why there is no mention of the TBI or combat stress he was being treated for on the profile.  He would like to introduce a handwritten medical record from the Task Force Surgeon, Colonel (COL) Z---an, that he was at the medical station, Forward Operating Base (FOB) Orion, on 30 October 2004 and under "Meds" it clearly states Diazepam.  He was going on missions on Diazepam.  He believes this is extremely noteworthy for his case.  He also included an audiogram showing significant hearing loss done at Fort Drum and was conducted on 3 January 2005 which would explain the tinnitus from the mortar explosion.

	b.  He would next like to address the decision listed in the Record of Proceedings under the Consideration of Evidence section.  Paragraph 6 states his Noncommissioned Officer (NCOER) for the rating period ending November 2005 shows he was fully capable of performing all his military duties.  He finds that impossible considering he wasn't going to drill due to his medical symptoms, specifically PTSD.  He supplied a progress note from the psychologist, Dr. M--k S-----er, dated 31 October 2005.  The note is from him (the applicant) requesting Dr. S------er call his company commander to excuse him from drill in November due to an exacerbation of his PTSD symptoms.  This evidence disproves the Discussions and Conclusion portion that his rights were not violated by the NYARNG.  If there is a signature on this NCOER it is not his, which makes the NCOER fraudulent.  He had been in Montrose VA hospital acute care ward once at this point and had just completed a 45-day stay in their residential PTSD program.  His chain of command was fully aware of his diagnosis, promised him a medical board, never afforded him the opportunity to extend his enlistment, and he received the National Guard Bureau (NGB) Form 55 (Honorable Discharge Certificate) in the mail instead.  This form is also an unsigned form he enclosed for the Board review.  

	c.  He was railroaded out of the ARNG in order to put a healthy, deployable, E-5 in his slot instead of retaining him for a lengthy, drawn out medical board process and after all of the medical notes from Iraq and the medication he was on in theater at Fort Drum to the day he was terminated he did not voluntarily separate at the expiration of term of service (ETS); he was fired.  He does not see how it is possible that the Board can't see how his rights were not violated and he was not diagnosed in a timely fashion, or how his chain of command could not have possibly known and not taken appropriate action.  Rather, the opposite; they, back in 2005, constructed a fraudulent NCOER for this Board to use as evidence against him and furnished unsigned discharge papers.

	d.  As for paragraph 8 of the Consideration of Evidence, he was seen by a psychologist, Captain (CPT) J-----on, of the 1st Infantry Division a total of four sessions with an additional initial interview totaling five.  He diagnosed him with an acute stress disorder.  After returning to the States, he mostly went to the Veterans Center every week and unfortunately does not have those records to provide.  However, he was seen by a doctor at Fort Drum for anxiety and prescribed medication.  Those medical records were already provided.  

	e.  As for paragraph 9 of the Consideration of Evidence, the Department of Veterans Affairs (VA) rated him at 50 percent for PTSD and 10 percent for tinnitus, a combined rating of 60%.  This decision is backdated to July 2005 demonstrating that he was forfeiting either drill pay (when he was healthy enough to be present) or forfeit a portion of his service-connected disability compensation, another glaring indication his unit was completely aware of his conditions.  He also supplied a pre-termination date decision (back-dated) showing he was 60-percent service-connected with PTSD and tinnitus and a temporary 100 percent for the hospital stay, proving the dates of the hospital stay.  This decision is merely showing that he was entitled to 100 percent compensation during his month and a half hospital stay.  He was immediately awarded 110 percent compensation after that.  He supplied a document from the VA certifying that on 1 April 2006 he was 100 percent service-connected for PTSD.  Currently, his service-connection is 180 percent for PTSD, tinnitus, and TBI, and migraine headaches associated with TBI. 

	f.  In summary, his last year of service, April 2005 to April 2006 was absolutely positively disrupted and he was completely and totally unfit for duty.  He proved with the evidence he has provided that he was medically excused at least four drills during that 12-month span due to hospitalization, or symptoms exacerbation, and did not attend annual training.  He also proved his unit was completely aware of him being psychologically unfit, and being mostly deaf in his left ear, during and post-deployment and did nothing to benefit him with that information.  Instead, he was relieved of the burden of command and moved into a headquarters platoon in order to see the Combat Stress Team.  He continued to go out on missions on prescribed Diazepam until he was eventually wounded, then tossed out like garbage one year and a half later.  He proved the NCOER dated November 2005 (which he has never seen) was fraudulent.  He also proved he did not sign the NGB Form “55” (i.e., NGB Form 22) (Report of Separation and Record of Service)) and therefore did not concur with the Reentry (RE) Code of 1.  Perhaps if he did not have to get help writing this letter, or perhaps if he did not know he got deceived by the ARNG after serving honorably and been tricked by the people he trusted, he would not be so passionate about this.  He wants the Board to remember that there was no Warrior Transition Unit when he came home; things would have been different for him if there had been. 

3.  The applicant provides congressional correspondence and:

* VA rating decisions, dated 21 September 2005 and 30 June 2006, 
* DA Form 3349 (Physical Profile), dated 1 February 2005
* Standard Form 600 (Chronological Record of Medical Care)
* NGB Form 22 (Report of Separation and Record of Service)
* DD Form 2215E (Reference Audiogram)
* VA progress notes and letter from the VA Health Administrative Services
* Memorandum for Record, Subject: Mental Health Care
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 AR20130001692, on 10 October 2013. 

2.  The applicant provides a new argument which was not previously considered by the Board.  

3.  Having had prior service, the applicant enlisted in the NYARNG on 24 April 1999.  He was trained in and held military occupational specialty (MOS) 11B (Infantryman).  He executed a 6-month extension in the ARNG on 18 April 2000, which established his ETS as 23 April 2006.  He was promoted to sergeant (SGT)/E-5 on 30 September 2003. 

4.  On 30 September 2003, NYARNG published Orders 273-121 ordering him to active duty in support of Operation Iraqi Freedom (OIF).  He entered active duty on 1 October 2003 and served in Iraq from 26 February 2004 to 31 December 2004.  He was assigned to Company A, 2nd Battalion, 108th Infantry.

5.  On 29 September 2004, he was seen at an aid station in Iraq due to experiencing sudden pain in the inguinal area which occurred during battle drills on 29 September 2004 in Iraq.  He went to the battalion aid station at his unit and he was diagnosed with a right inguinal hernia.  No surgical intervention was recommended at that time.  He continued to have discomfort and on return to Fort Drum in January 2005 with his unit, he went for treatment at Keller Army Community Hospital at West Point, NY.  

6.  On 1 February 2005, he was issued a physical profile for right inguinal hernia. He was transferred to the medical hold detachment and ultimately underwent surgery for right inguinal hernia repair.  

7.  On 12 April 2005, Headquarters, 10th Mountain Division, Fort Drum, NY, published Orders 102-1001 ordering his honorable release from active duty.  Accordingly, on 27 April 2005 he was honorably released from active duty to the control of his State ARNG in accordance with Army Regulation 635-200 (Enlisted Administrative Separations) due to completion of his required active service. 

8.  His records contain the following NCOERs: 

	a.  Annual NCOER covering the rating period October 2003 through September 2004.  His Rater rated his performance as "Excellent" or "Success."  He passed the Army Physical Fitness Test (APFT) and met the height and weight standards.  His Senior Rater rated his overall performance and potential as Successful and/or Superior. 

	b.  Annual NCOER covering the rating period October 2004 through November 2005.  His Rater rated his performance as "Excellent" or "Successful." He passed the APFT and met the height and weight standards.  His Senior Rater rated his overall performance and potential as Successful and/or Superior.  One of the comments made by his Rater regarding his "Competence" (duty proficiency/MOS proficiency) is, "performed flawlessly as company radio/telephone operator on numerous company missions during OIF III."  This NCOER states "Soldier not available to sign." 

9.  On 4 March 2005, CPT J----n, the 1st Infantry Division Psychologist submitted a memorandum for record wherein he stated: 

	a.  The applicant was seen by him for a total of 4 sessions of outpatient psychotherapy between October and December “2005” (possibly 2004).  He presented with trauma-related symptoms to include mood lability, mild memory disturbance, and interpersonal conflict.  His diagnosis was that of acute stress disorder.  

	b.  He was treated with cognitive behavioral program targeting the above noted symptoms and showed great response.  Toward the end of treatment, he showed a significant improvement in his psychosocial functioning.  Nonetheless, he has an increased risk of relapse the first 4 to 6 months following his return from Iraq as has been shown in empirical studies of Soldiers returning from the Iraqi theater.  He would likely benefit from continued outpatient psychotherapy. 

10.  On 21 September 2005, the VA awarded him service-connected disability compensation for various conditions.  The VA progress notes, consults, and other medical documents he provided show he was awarded service-connected disability compensation for PTSD, at the rate of 50 percent effective 28 April 2005, and tinnitus, at the rate of 10 percent, also effective 28 April 2005.  He was denied service-connection for bilateral hearing loss.  His combined rating was determined to be 60 percent.  

11.  On 26 October 2005, he participated in a readjustment therapy group session at the VA Medical Center and on 30 October 2005, he attended another session on a walk-in basis due to what he described as increased emotional stress.  A VA Progress Note dated 31 October 2005 indicates the applicant came in as a walk-in because of increased emotional distress.  He allowed the psychologist to speak to his commander and advise him the applicant was not appropriate for drill due to exacerbation of his PTSD symptoms.

12.  On 30 June 2006, in response to his claim for reevaluation, the VA awarded him a temporary evaluation of 100 percent effective 7 February 2006 due to hospitalization.  An evaluation of 50 percent was assigned as of 1 April 2006. 

13.  He was honorably discharged from the ARNG on 23 April 2006 by reason of ETS and completion of his required ARNG service.  He was not available to sign his NGB Form 22 and he was assigned an RE-1, indicating he was fully eligible to reenlist. 

14.  His records do not contain: 

* a permanent physical profile for the conditions he raises (PTSD, TBI)
* a diagnosis of any medical conditions that failed retention standards or were found unfitting
* a diagnosis of a medical condition that warranted his entry into the disability system

15.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB)
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages: the MEB and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of “unfit for duty” is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

16.  Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Paragraph 3-4 states under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LD criteria to be eligible to receive retirement and severance pay benefits.

	a.  Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service.

	b.  Paragraph 3-4 states that under the laws governing the Army 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.

		(1)  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 (IDT).

		(2)  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.

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, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The VA does not have the authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  These two government agencies operate under different policies.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the NYARNG from 24 April 1999 to 23 April 2006.  During this period, he was mobilized and served on active duty from 1 October 2003 to 27 April 2005 and served in Iraq from 26 February 2004 to 31 December 2004.  He was assigned to C Company, 2nd Battalion, 108th Infantry. 

2.  Most if not all of the applicant's medical records during his active duty service are not available for review with this case.  However, of the selected documents he provides is a VA Progress Note that indicates his psychologist was to inform his commander that he was not appropriate for drills due to the exacerbation of his PTSD symptoms. 

3.  There are no service treatment records available for review to validate the diagnosis of PTSD during the applicant's military service.  Although he provides medical documentation with the diagnosis of PTSD from the VA, it is extremely difficult to determine without conjuncture the diagnosis of PTSD or PTSD-related disorder at the time of his separation from active duty or from the ARNG. 

4.  However, there is some indication that his PTSD interfered with the performance of his duties.  Although it is premature to determine if these symptoms fell below retention standards and/or were unfitting, as a matter of equity the applicant should have his records considered by a medical evaluation board to make this determination. His records should be corrected as recommended below. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20130001692 on 10 October 2013.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* having the Office of The Surgeon General contact the applicant and arrange a physical evaluation via appropriate medical facilities and, if appropriate, referral to an MEB
* directing the Office of The Surgeon General to issue appropriate invitational travel orders to the applicant to accomplish the physical evaluation and, if appropriate, the medical evaluation board
* directing the Office of The Surgeon General to issue appropriate invitational travel orders to the applicant to prepare for and participate in consideration of his case by a physical evaluation board in the event that a physical evaluation board becomes necessary
* In the event a PEB finds that the individual concerned has a medically unfitting condition and it is compensable, action will be take to correct his records to show he was appropriately separated effective 23 April 2006

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to medical retirement at this time.



      ___________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)                                         AR20140001806





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ABCMR Record of Proceedings (cont)                                         AR20140001806



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