IN THE CASE OF:
BOARD DATE: 16 December 2014
DOCKET NUMBER: AR20140006068
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 a medical retirement.
2. The applicant states, in effect:
a. Since his return from his deployment to Iraq in 2007, he knew something was wrong with him, but he brushed it off. During his first tour in Afghanistan in 2010, he started getting dizzy and vomiting. He went to a medical treatment center for treatment, but nothing worked and the doctor asked him if he had ever been hit by an improvised explosive device. He told the doctor he had and he was sent to Germany for some tests. He arrived in Germany in October 2010. He was diagnosed with severe post-traumatic stress disorder (PTSD), vertigo, and mild traumatic brain injury (TBI). The Air Force doctor told him his brain was cleared, but it was crooked. He was then sent to Fort Bragg, NC, and was told they couldn't find anything.
b. He was sent home in November 2010. He went to the Department of Veterans Affairs (VA) and was tested for TBI, PTSD, hearing, and vertigo. Since November 2010, he has been diagnosed with severe PTSD, severe headaches, TBI, and vertigo.
c. In June 2013, he was awarded 80-percent service-connected disability by the VA.
d. He volunteered for three combat tours. He feels he should have been medically retired from the Army. Every day he wishes he was back in action where it makes sense. He feels his life was cut off. His comprehension gets worse each day. His marriage and relationship with his daughter will never be the same. He wants a medical retirement so he can get in some of the VA programs.
3. The applicant provides:
* email correspondence from a Member of Congress, dated 27 March 2014
* letter from the VA, dated 26 February 2014
* undated letter from the applicant's wife
* approximately 700 pages of electronic VA 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. Having prior active service in the Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR) on 9 July 1987. He was promoted to sergeant first class on 1 March 2003.
3. On 18 October 2004, he was ordered to active duty as a member of the USAR in support of Operation Iraqi Freedom. He served in Kuwait/Iraq from 22 November 2004 to 22 September 2005. He was released from active duty (REFRAD) on 15 October 2005.
4. On 21 September 2006, he was ordered to active duty as a member of the USAR in support of Operation Iraqi Freedom. He served in Kuwait/Iraq from 10 January 2007 to 28 December 2007. He was REFRAD on 5 March 2008.
5. On 9 July 2010, he was ordered to active duty as a member of the USAR in support of Operation Enduring Freedom. He served in Afghanistan from 1 October 2010 to 6 October 2010.
6. Records show the applicant participated in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical evaluation from 22 October 2010 to 30 December 2010.
7. He was honorably REFRAD on 30 December 2010 by reason of completion of required active service.
8. His noncommissioned officer evaluation reports (NCOER's) covering the period 1 October 2006 through 7 November 2010 show he was rated "Fully Capable" for his overall potential for promotion and/or service in positions of greater responsibility by his raters. He was also rated "Success" for physical fitness and military bearing on these reports except for one. He was rated "Needs Improvement" for being overweight during the period 14 September 2009 through 31 December 2009.
9. He was transferred to the Retired Reserve on 27 May 2011.
10. He provided a letter from the VA, dated 26 February 2014, which states his combined service-connected disability evaluation is 80 percent.
11. He provided a letter from his wife who states she is desperate to help her husband. They have been married for 30 years and he has always been a wonderful husband and father to their daughter. He has never complained about his responsibilities. Since his tours overseas, their lives have never been the same. The man she married is no longer the same and she is trying to adjust to the person he has now become. He wears his grief upon his face, he is distant and in constant pain, vertigo puts him to bed for days, he has headaches all the time, he cannot focus and forgets everything, he has nightmares, and he is depressed.
12. He also provided approximately 700 pages of electronic VA medical records. These records consist of radiology reports, laboratory results, medication information, and progress notes. He was diagnosed with PTSD, cognitive disorder secondary to TBI, migraine headaches, and other medical conditions.
13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. It states the mere presence of an 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 his or her office, grade, or rank. It states that disability compensation is not an entitlement acquired by reason of a 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 service. When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.
14. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.
15. Title 38, U.S. Code, sections 310 and 331, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should have been medically retired.
2. His NCOER's covering the period 1 October 2006 through 7 November 2010 show he was rated "Fully Capable" for his overall potential for promotion and/or service in positions of greater responsibility by his raters. He was also rated "Success" for physical fitness and military bearing on these reports except for one wherein he was rated "Needs Improvement" for being overweight for a
3-month period in 2009.
3. Records show he participated in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical evaluation from 22 October 2010 to 30 December 2010. Since he was REFRAD for completion of required active service, it appears he was found physically qualified for separation.
4. There is no evidence of record and the applicant did not provide any evidence that shows a medical condition rendered him unable to perform his duties. Therefore, there is insufficient evidence to show his medical retirement was warranted.
5. The VA has granted him an overall or combined 80-percent disability rating for various medical conditions. However, an award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under different laws and its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability. 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. The Army rates only those conditions found to be unfitting.
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) AR20140006068
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140006068
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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