IN THE CASE OF:	  

		BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140004257 


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 the Board's previous decision on his request that post-traumatic stress disorder (PTSD), anxiety, depression, and insomnia also be considered by a physical evaluation board (PEB).

2.  As new issues he now additionally requests:

* that traumatic brain injury (TBI) also be considered by a PEB
* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* "V" device with his already-awarded Bronze Star Medal (BSM)
* his correct date of rank in item 12i (Effective Date of Pay Grade)

3.  The applicant states his original PEB did not mention or take into account his diagnosis of PTSD or the fact that he was being treated by a clinical psychologist for PTSD and had been prescribed psychotropic medication to assist with the anxiety, depression, nightmares, and other mental stresses caused by PTSD.  The other issue that was not mentioned or taken into consideration was the TBI he received due to roadside bombs or improvised explosive devices and a vehicle rollover.  He is presenting sworn testimony from former Soldiers who served with him in Iraq because his medical treatment records were destroyed while being transported back to Kuwait.  The vehicle carrying his medical treatment records was hit by a roadside bomb destroying all the paper records.  He currently has a combined 40-percent disability rating as assigned by the Physical Disability Board of Review (PDBR) and he has been placed on the Permanent Disability Retired List.  However, the PDBR did not have authority to go outside the boundaries of the original PEB to include the PTSD and TBI.

4.  He describes and provides sworn testimony attesting to treatment by a psychologist for PTSD on a weekly basis after he was shot on guard duty on 17 June 2003.  The sworn testimony also verifies that he was prescribed and took psychotropic medication for PTSD and its related effects.  He was prescribed and took Ambien, Seroquel, and Xanax to help with the effects of PTSD.  The third and final piece of evidence is his description of events and sworn testimony that he received TBI on multiple occasions.  He incurred a TBI when his Bradley Fighting Vehicle was struck by a roadside bomb which caused him to lose consciousness for 1-2 hours; when his squad was ambushed which caused him to lose consciousness for 20-30 minutes; and, on the night he was shot, when a rocket-propelled grenade explosion caused him to lose consciousness for approximately 3-5 minutes.  The fourth TBI he suffered was when he was inside a vehicle that rolled over three times, causing him to lose consciousness for approximately 1-2 hours.

5.  The applicant provides:

* four-page self-authored statement
* two DA Forms 4187 (Personnel Action) advancing him in rank
* DA Form 4187 requesting award of the BSM for valor
* DD Form 1380 (U.S. Field Medical Card)
* DA Form 2823 (Sworn Statement) 
* request for Expert Infantryman Badge (EIB)
* Memorandum for Record (MFR), subject: Permission to Clear Post
* Army Combat-Related Special Compensation (CRSC) decision letter
* Headquarters, 1st Infantry Division memorandum, subject:  Correction of DD Form 214
* Headquarters, 1st Infantry Division and Fort Riley Orders 172-0007
* DD Form 214
* Headquarters, 1st Armored Division, Permanent Orders 128-51
* Headquarters, 1st Armored Division, Permanent Orders 128-52
* four statements of support

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 AR20130008146, on 5 February 2014.
2.  The four supporting statements provided by the applicant is new evidence, which requires that the Board reconsider his request.

3.  On 14 June 2002, he enlisted in the Regular Army.  His records show he served in Kuwait/Iraq from 3 March 2003 to 27 February 2004. 

4.  He submits a DA Form 4187, dated 26 June 2003, requesting award of the BSM with valor.  The form states in the remarks section that on 31 May 2003 while on guard duty he was wounded by gunfire in Baghdad, Iraq.  It states he went above and beyond the call of duty to defend his position against an unknown number of combatants and he had to be physically relieved before he would leave his position despite being wounded and losing a large amount of blood.  An attached addendum shows the award was approved.

5.  He submits Permanent Orders 128-52, issued by Headquarters, 1st Armored Division, dated 7 July 2003, awarding him the BSM with valor.

6.  He submits an Alpha Company, 1st Battalion, 41st Infantry Memorandum, subject:  EIB Request, dated 22 July 2004, listing the applicant's name among those who completed the Expert Infantryman Course and were awarded their EIB on 27 February 2004.

7.  On 21 September 2004, a Medical Evaluation Board (MEB) was convened and considered the applicant's condition of status post gunshot wound (GSW), left knee, extraarticular and chronic left knee pain.  The board indicated that he no longer met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-14b and referred him to a PEB. 

8.  On 28 September 2004, he agreed with the MEB's finding and recommendation.

9.  He submits a DA Form 4187 showing he was advanced to the rank of sergeant/E-5 with an effective date and date of rank of 1 October 2004.

10.  On 7 October 2004, a PEB was convened and considered the applicant's condition of chronic left knee pain, status post GSW in Iraq through the non-articular portion of the knee.  The PEB found his functional limitation in maintaining the appropriate level of stamina caused by the physical impairments made him medically unfit to perform the duties required of a Soldier of his rank and primary specialty.  The board found that he was physically unfit and recommended a 10-percent disability rating.  He was recommended for separation with severance pay, if he was otherwise qualified.  On 12 October 2004, the applicant concurred with the board findings and recommendations and waived a formal hearing of his case. 

11.  On 17 November 2004, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, with disability severance pay.  He was credited with 2 years, 5 months, and 4 days of active service.  His DD Form 214 shows he was awarded the BSM.  It does not show the "V" device.

12.  An undated letter from the VA stated that a decision was made on his claims for service-connected compensation received on 21 October 2008, 30 October 2008, 24 November 2008, and 27 February 2009.  The letter shows he was granted an 80-percent service-connected disability rating, which included post-concussive headaches due to head injuries (10 percent) and PTSD (50 percent).  The VA found the TBI was not related to his military service.

13.  He requested that the Department of Defense PDBR review his disability rating due to his gunshot wound to the left knee being more severe than initially thought and the PTSD was chronic and severe.

14.  On 10 May 2010, the Department of Defense PDBR recharacterized the applicant's separation with severance pay as a disability retirement with a combined disability rating of 40 percent.  The PDBR recommended a 30-percent disability rating for the left posterior thigh - muscle group XIII, a 10-percent disability rating for left anterior thigh - muscle group XIV, and a 10-percent disability rating for removal of knee cartilage, symptomatic resulting in a 
40-percent combined rating.

	a.  His low back pain, scarring of skin, left foot numbness, kidney stones, mild hearing loss, chronic cough, and history of major head injury were all discussed and considered by the board.  There was no clearly documented evidence that any of those other conditions caused significant interference with the performance of required military duties.  Those other conditions were all judged to be not unfitting at the time of separation from service and, therefore, were not relevant for a disability rating. 

	b.  The PDBR also considered PTSD, erectile dysfunction, right knee condition, left hip condition, tinnitus, post-concussive headaches, and left eye condition.  The PDBR found there was no clearly documented evidence that any of those conditions were a matter of record in the Disability Evaluation System package and, therefore, they were found to be outside the scope of the PDBR.

15.  His service medical records are not available for review.
16.  He submits a U.S. Army Human Resources Command decision, dated 5 November 2010, on his claim for Combat-Related Special Compensation (CRSC) showing he had verified combat-related PTSD which was assigned a 50-percent disability rating by the VA.  TBI is not listed.

17.  He provides four statements in support of his request:

	a.  In a letter, dated 11 January 2014, an individual identifies himself as a master sergeant (retired) who was the applicant's platoon sergeant during Operation Iraqi Freedom (OIF).  He states the applicant was wounded on the night of 17 June 2003 when he was shot by a sniper.  He was stabilized and transferred to the main hospital in the Green Zone where he underwent additional surgeries and treatment.  He remained there for about 3 months before returning to his unit.  He states he verifies to the best of his knowledge that the applicant was undergoing regular psychological treatment as well as treatment for physical injuries.  He states he also witnessed the applicant taking medication that was prescribed for PTSD.  The applicant regularly talked about his meetings and treatment with the clinical psychologists and his diagnosis of PTSD.  The applicant also told him that he was having regular nightmares, anxiety attacks, and feelings of anxiety, as well as depression.  These issues were mentioned to him from the first day he was able to visit the applicant until the time of his PEB.  Thirdly, he verifies that the applicant suffered what is now known as TBI on four separate occasions, which he describes.

	b.  In three nearly identical letters, dated in January 2014, individuals identifying themselves as members of the applicant's platoon during OIF attest to his undergoing psychological treatment and receiving medication for PTSD after being wounded in June 2003. 

18.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness for retention and separation, including retirement.  Chapter 3 in effect at the time gave the various medical conditions and physical defects which could render a Soldier unfit for further military service.  It further indicated the causes for referral into the Physical Disability Evaluation System (PDES) include mental health disorders that interfered definitively with the effective performance of military duty.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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.

   a.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states that 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.
   
   b.  The regulation states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  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.

20.  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.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical records are not available to the Board and he did not provide medical records.  The available evidence shows he was initially found unfit for duty for chronic left knee pain, status post GSW with a 10-percent disability rating.  There were no other conditions listed on his MEB or PEB that were evaluated.  He concurred with the findings of both boards.

2.  He subsequently submitted a request for a PDBR review of his disability rating due to his gunshot wound to the left knee being more severe than initially thought and for review of chronic and severe PTSD.  On 10 May 2010, the PDBR recharacterized his separation with severance pay as a disability retirement with a combined disability rating of 40 percent.  However, the PDBR did not have authority to go outside the boundaries of the original PEB to include PTSD and TBI.

3.  Notwithstanding the lack of military medical documentation which he asserts was lost in a vehicle explosion, based on the VA rating decision there is no reason to doubt the statements of his former platoon sergeant and unit members in Iraq that he received psychological and medical treatment for PTSD and that he incurred TBI.  Accepting that he was diagnosed with PTSD and that he incurred TBI does not, however, mean in any way that these medical conditions rendered him unable to perform his duties.  Further, the fact that he earned an EIB in February 2004 and that he was advanced to the rank of sergeant in October 2004 indicate these medical conditions did not significantly interfere with the performance of his duties.  Therefore, there is an insufficient evidentiary basis to recommend that a PEB consider the conditions of PTSD, anxiety, depression, insomnia, and/or TBI.

4.  Army Regulation 635-40 provides that the U.S. Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  The VA, on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires that the VA must give the veteran the benefit of any reasonable doubt.  The fact that he was awarded a 50-percent disability rating by the VA for PTSD is not sufficient justification to presume that this condition should have been evaluated on his original MEB and subsequently on his PEB.

5.  An award of a VA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA awards ratings because a medical condition is related to military service and affects the individual's civilian employability.

6.  His DD Form 214 shows he was awarded the BSM.  He submits permanent orders awarding him the BSM with "V" Device.  There is no evidence indicating he received two BSM awards; therefore, it appears the "V" device was inadvertently not included with the BSM entry on his DD Form 214.  As such, it would be appropriate to amend his DD Form 214 to show the BSM with "V" Device.

7.  He submits a DA Form 4187 showing he was advanced to SGT/E-5 effective 1 October 2004.  Therefore, it would be appropriate to amend item 12i of his DD Form 214 to show "20041001." 

8.  In view of the foregoing, it would be appropriate to correct the applicant's records as shown below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence warrants partial relief.

2.  As for the reconsideration issue, 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 to amend the decision of the ABCMR set forth in Docket Number AR20130008146, dated 5 February 2014.

3.  As for the new issues, with regard to his requests that TBI also be considered by a PEB, correction of his DD Form 214 to show the "V" device with his already-awarded BSM, and correction of his date of rank in item 12i of his DD Form 214, the Board further determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting the BSM from his reissued DD Form 214:
   
   b.  amending item 12i of his reissued DD Form 214 to show "20041001"; and 
   
   c.  adding the BSM with "V" Device to item 13 his reissued DD Form 214; 










4.  The Board further determined that 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 including TBI for consideration by a PEB.

      ______ _   __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)                                         AR20140004257



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ABCMR Record of Proceedings (cont)                                         AR20140004257



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