IN THE CASE OF:	   

		BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140002888 


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, a medical disability retirement from the U.S. Army for post-traumatic stress disorder (PTSD).

2.  The applicant states, in effect, he served in the Regular Army (RA) from April 1993 to February 2006 and in the Ohio Army National Guard (OHARNG) from March 2006 to December 2006.  He then enlisted in the Air National Guard in April 2007 and was discharged from the Air National Guard in August 2010 by reason of disability, existed prior to service (EPTS).  He petitioned the Air Force Board for Correction of Military Records (AFBCMR) for a review of his records and the AFBCMR finally considered his case and it was denied.  Their original decision still stands.  He would like the Army Board for Correction of Military Records (ABCMR) to consider his case since the AFBCMR is sticking with their decision that his disabilities were caused while on active duty in the Army and must be considered by the Army.  The Department of Veterans Affairs (VA) has currently rated him at 90 percent (%) disabled.  

3.  The applicant provides copies of the following:

* Army DD Form 214 (Certificate of Release or Discharge from Active Duty)
* OHARNG National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* AFBCMR Medical Consultant opinion
* AFBCMR Record of Proceedings
* letter from the AFBCMR and his rebuttal 
* VA Rating Decision
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 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the RA on 7 April 1993.  He served in military occupational specialty (MOS) 15U (helicopter repairer).  He served continuously on active duty through several reenlistments and in various assignments.  He served in Iraq from 12 January 2005 through 19 December 2005.  

3.  His records contain multiple Noncommissioned Officer Evaluation Reports (NCOER) as follows: 

	a.  Annual NCOER covering the rating period April 2004 through March 2005. His Rater rated his performance as "Excellence" or "Success" and his overall potential as "Fully Capable."   He passed the Army Physical Fitness Test (APFT) and he met the height and weight standards.  His Senior Rater rated his performance and potential as "Successful" and "Superior." 

	b.  Change of Rater NCOER covering the rating period April 2005 through February 2006.  His Rater rated his performance as "Excellence" or "Success" and his overall potential as "Fully Capable."   He passed the APFT and he met the height and weight standards.  His Senior Rater rated his performance and potential as "Successful" and "Superior." 

4.  He was honorably released from active duty on 28 February 2006, by reason of completion of active duty, and was transferred to a Reserve unit.  He was credited with completing 12 years, 10 months, and 24 days of net active service.

5.  He enlisted in the OHARNG on 1 March 2006.  His enlistment physical is not available for review with this case.  However, Annex A (Certificate of Acknowledgement of Service Requirements and Methods of Fulfillment) show he was assigned a PULHES of "1-1-1-1-1-1" indicating he was medically qualified for enlistment.  
6.  He was discharged from the OHARNG on 3 December 2006, by reason of dependency or hardship.  The complete facts and circumstances are not available for review with this case. 

7.  He enlisted in the Ohio Air National Guard on 6 April 2007.  His enlistment physical is not available for review with this case.

8.  On 19 January 2010, an informal Physical Evaluation Board (PEB) convened (by the Air Force) and considered his medical conditions of post-traumatic stress disorder (PTSD), with major depression disorder; L5 spondylolysis with intervertebral disk degenerative with left lower extremity radiculopathy; shoulder tendonitis rotator cuff; and left knee joint pain.  The PEB determined his conditions were EPTS, thus neither condition was considered compensable.  The PEB recommended he be discharged under the provisions of Title 10, U.S. Code (USC), section 61.

9.  On 2 February 2010, he signed an AF Form 1180 (Action on Informal PEB Findings and Recommended Disposition) (copies of the PEB and AF Form 1180 were not provided to the ABCMR) reflecting his disagreement with the PEB's decisions.  He waived his right to a formal hearing.

10.  On 20 April 2010, the AFPC, Disability Division, issued a memorandum directing the applicant's separation from active service for physical disability due to his EPTS conditions.  

11.  He was honorably discharged from the Air National Guard on 23 August 2010, by reason of physical disqualification under the provisions of AF Instruction (AFI) 36-3209.

12.  He provided copies of the following:

   a.  An Application for Correction of Military Records memorandum, dated 29 May 2012, wherein the Chief, Special Actions/BCMR Advisories, USAF Physical Disability Division, Directorate of Personnel Services, stated:

		(1)  The applicant requested a review of his Title 10, U.S. Code (USC), chapter 61 (existed prior to service (EPTS)) discharge.  He was discharged from active duty and separated from the “Indiana Air National Guard effective 9 December 2003 with five years, six months, and fourteen days of active duty.”

		(2)  A review of his record revealed that he was in the RA from 7 April 1993 through 28 February 2006.  He joined the OHARNG on 1 March 2006 and sometime later transferred to the Ohio Air National Guard.  The medical narrative with the medical board package notes:  "that in later 2005 while in Iraq he was involved in a Chinook helicopter crash in which the aircraft ran out of fuel and auto-rotated to a hard landing.  He remembered hearing the engines shutoff and then walking up about 200 meters away after losing consciousness for an unknown period of time.  Upon return from Iraq in 2005 he spoke with a psychiatrist for a post-deployment screening.  Following that encounter he reported having scheduled 3 or 4 weeks visits with a mental health provider at Fort Wainwright, AK, and having each one cancelled.  He became frustrated with the cancellations and then separated from the Army."  He currently had a 60% service-connection rating from the VA.

		(3)  He applied to the ABCMR for relief, but their letter, dated 9 March 2012, stated that the Air Force had jurisdiction over his case and suggested he apply to their correction board.  The applicant has 12 years of active service in the Army and was entitled to basic pay when the incident occurred.

		(4)  An informal PEB relooked the applicant's case file and recommended permanent retirement with a combined 60% disability rating.  Breakdown as follows: 

* 50% for PTSD with major depression disorder
* 10% for L5 spondylolysis with intervertebral disk degenerative with left lower extremity radiculopathy
* 10% for shoulder tendonitis rotator cuff
* 10% for left knee joint pain

		(5)  They recommended approval of the applicant's requests.  They advised the Board to rule that on 23 August 2010 the applicant was separated from the Air National Guard and effective 24 August 2010 he was permanently disability retired with a 60% disability rating vice being discharged under Title 10, USC, chapter 61. 

   b.  An AFBCMR Medical Consultant opinion, dated 21 November 2012, wherein the Senior Medical Advisor, AFBCMR, reiterated the applicant's request and stated the facts.  He provided the following policy extracts that could help explain the actions taken by the Air National Guard in separating the applicant under AFI 36-3209, largely due to his medical disqualification and inability to deploy, (without a medical retirement), even though his conditions were found to be service-connected by the VA.  He stated:

		(1)  Comments in the Line of Duty documents suggested that the applicant may have failed to disclose the full extent of his medical ailments in conjunction with his application to enter the Air National Guard; thus, he was presumed fit at entrance.  

		(2)  The Medical Consultant opined that it was likely the service connection was established by the VA for the applicant's medical conditions based on their existence during his prior Army service history and not his subsequent Air National Guard service; the latter period during which he was required to fulfill accession medical standards, was presumed fit upon entering the new period of service, but was medically disqualified for continued service.  If he failed to disclose the existence of his medical conditions, or their severity, at the time of his application and acceptance into the Air National Guard (noting his inability to complete training as a result), the Medical Consultant opines that at worst, it constituted fraudulent entry, or as a minimum, the medical disqualification and administrative discharge he received under AFI 36-3209.

		(3)  He recommended denial of the applicant's implicit contention to supplant his administrative discharge from the Air National Guard with a medical retirement.

   c.  A letter from the AFBCMR, dated 21 November 2012, wherein he was provided a copy of an advisory opinion for his review and comment.
   
   d.  His rebuttal, dated 2 December 2012, wherein he stated at his PEB he was instructed by counsel that he could not prove that the disabilities happened or were aggravated by his service in the Air National Guard.  His Army unit was deactivated 2 weeks after their return from Iraq.  As he was getting out of the Army he was never attached with any unit and was handed clearing papers to clear on his own.  He was only given 30 days to clear before his expiration of term of service (ETS) from the date he received his orders.  That was why he stated on his application to the ABCMR that he did not receive a proper ETS physical and the Army still insisted that the Air Force must hear that case.

   e.  A VA rating decision, dated 9 January 2013, which shows he was awarded a 70% service-connected rating for PTSD effective 9 November 2011.

   f.  AFBCMR Record of Proceedings, dated 12 February 2013, wherein the AFBCMR determined that the evidence presented did not demonstrate the existence of material error or injustice and his applicant was denied.

   g.  A letter from the Army Review Boards Agency (ARBA), dated 6 August 2013, wherein he was advised that if he would like the ABCMR to review his discharge from the Army active service (7 April 1993 through 28 February 2006) and change it to a medical retirement he must provide his Army military medical record and any other records that support that stated issue.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets for the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating.  The regulation states:

	a.  The Physical Disability Evaluation System assessment process involved two distinct stages:  the MEB and the PEB.  The purpose of the MEB was to determine whether the service member's injury or illness was 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 was an administrative body possessing the authority to determine whether a service member was fit for duty. A designation of "unfit for duty" was required before an individual can be separated from the military because of an injury or medical condition.

	b.  Service members who were determined to be unfit for duty due to disability are either separated from the military or were permanently retired depending on the severity of the disability and length of military service.  Individuals who were separated received a one-time severance payment while veterans who retired based upon disability received monthly military retirement payments and had access to all other benefits afforded to military retirees.

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

14.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Paragraph 3-33 states the causes for referral to an MEB for anxiety (PTSD falls under anxiety disorder), somatoform, or dissociative disorders are (1)  persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or (2)  persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or (3)  persistence or recurrence of symptoms resulting in interference with effective military performance.

15.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the RA from 7 April 1993 through 28 February 2006.  He was discharged from active duty (Army) on 28 February 2006.  At the time of his discharge from the Army, there is no indication in his records that confirms he: 

* was issued a physical profile for any physical or mental condition
* was diagnosed with a medical condition that failed retention standards
* suffered from an injury or an illness that warranted his entry into the Army disability system 

2.  In fact, not only was he fully qualified for reenlistment as evidenced by his NCOERs that clearly show he was "Fully Capable," he enlisted in the OHARNG and was assigned a PULHES of "1-1-1-1-1-1" indicating he was medically qualified for enlistment.  He enlisted in the OHARNG on 1 March 2006 and was discharged 3 December 2006, by reason of dependency or hardship. 

3.  There is no evidence and he did not provide sufficient evidence to show his PTSD was medically unfitting (in accordance with the standards of Army Regulation 40-501) and required physical disability processing during his period of active duty from April 1993 to February 2006.  Army Regulation 635-40 provides that the Army rates only conditions determined to be physically unfitting that were incurred in or aggravated during the period of service.

4.  Following his discharge from the OHARNG, he enlisted in the Air National Guard on 6 April 2007.  While in the Air National Guard, an informal PEB found his medical conditions of PTSD, with major depression disorder; L5 spondylolysis with intervertebral disk degenerative with left lower extremity radiculopathy; shoulder tendonitis rotator cuff; and left knee joint pain were EPTS and recommended he be discharged.  He was honorably discharged from the Air National Guard on 23 August 2010 under the provisions of Title 10, USC, chapter 61.


5.  Notwithstanding the absence of an ETS physical, there is no evidence any undiagnosed PTSD would have been treatable or required treatment, he would have failed to meet medical retention standards, or would have been referred to an MEB/PEB at the time.

6.  The award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement from the Army.  Operating under its own policies and regulations, the VA awards rating because a medical condition is related to service (service connected).  In this case, he was evaluated and is being compensated for his service-connected medical conditions by the VA; however, there is no indication he suffered a disabling condition while in a qualifying active duty status that would have supported his processing for retirement through Army medical channels.

7.  In view of the foregoing, there is insufficient evidence to support granting him 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)                                         AR20140002888





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140002888



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1