IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140006460 


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 request for a medical discharge or retirement.

2.  The applicant defers comments to counsel. 

3.  The applicant allows counsel to provide additional documents.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant’s request for a medical discharge or retirement.

2.  Counsel states, in effect, that the Board blatantly disregarded the available medical records and unethically brushed aside the clear arguments posed in the applicant’s claim.  He goes on to state that the Army failed time and time again to adequately diagnose him and determined that he did not have post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI) despite his being exposed to an explosion and failing Military Acute Concussion Evaluation (MACE) scores.  He also states that in the face of this evidence the Board takes the preposterous position that the Army’s original determination was correct and that the applicant met medical retention standards and was fit to carry out his duties.  He further states that given the fact that the Department of Veterans Affairs granted him a 90% service-connected disability rating within 24 hours of his discharge which was increased to 100% due to unemployability, it is clear that the applicant should have been referred to the Physical Disability Evaluation System (PDES).  
3.  Counsel provides two pages of medical records regarding treatment for upper back pain and knee joint pain and a copy of his Army Physical Fitness Test Scorecard.

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 AR20130003387, on 6 February 2014.

2.  The applicant enlisted in the Regular Army on 18 January 2007 for a period of 3 years and 16 weeks and training as a combat engineer.  At the time of his enlistment it was noted that he had pes planus (flat feet) that were symptomatic and that he was 66 inches tall and weighed 192 pounds.  He had a General Technical score of 95.

3.  He completed his one-station unit training at Fort Leonard Wood, Missouri and was assigned to Fort Riley, Kansas for his first and only assignment.  He was advanced to the pay grade of E-2 on 18 July 2007 and deployed to Iraq during the period 20081006 – 20091003.

4.  The applicant underwent a pre-deployment MACE test and his score was 24/30.  On 28 June 2009, he again underwent a MACE test after being exposed to a terrorist explosion blast and his score was 21/30.

5.  The applicant's record contains a memorandum, dated 12 January 2010, which states the applicant received a mental health evaluation as the result of a command referral.  He was screened for PTSD and TBI and was found to have an adjustment disorder with anxiety and depressed mood; however, the applicant did not have a psychiatric condition which would warrant disposition through medical channels.  Treatment at this time was not deemed necessary.  The applicant was psychiatrically cleared for whatever administrative action was deemed appropriate by the command.

6.  On 16 February 2010, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance due to his repeated failure of the Army Physical Fitness Test (APFT).  The applicant waived his rights and elected not to submit a statement in his own behalf.


7.  On 16 March 2010, the appropriate authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.

8.  On 24 March 2010, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for unsatisfactory performance after completing 3 years, 2 months, and 7 days of creditable active service with no lost time.

9.  The applicant's record indicate that he did not pass an APFT from the time of his arrival at Fort Riley, that he was placed in a special training program, and on 17 July 2009 the applicant was 50 pounds over the screening table weight and 5% over his maximum allowable body fat.  The available records do not indicate he was placed on a physical profile.

10.  The applicant's record contains a DD Form 2697 (Report of Medical Assessment), dated 20 January 2010, which shows the applicant underwent a separation medical assessment at the Physical Examination Center, Irwin Army Community Hospital, Fort Riley, KS.  The applicant acknowledged he did not have any conditions which currently limited his ability to work in his primary military specialty or required geographic or assignment limitations.  His health care provider commented the applicant was being treated with Nexium for Gastro-Esophagus Reflux Disorder (GERD), gastritis; had right knee pain; lower back pain; anxiety; and had been exposed to an improvised explosive device blast for which the health care provider recommended the applicant be seen by audiology.  The applicant was referred to the VA for further evaluation.

11.  On 14 October 2010, the VA granted the applicant a 90% service-connected rating to be effective 25 March 2010.  His disability rating was subsequently increased to 100% due to unemployability.

12.  On 1 August 2012, the Army Discharge Review Board (ADRB), after carefully examining the applicant's record of service during the period of enlistment under review, determined the characterization of service was too harsh and as a result was inequitable.  Accordingly, the ADRB voted to grant relief in the form of an upgrade of the characterization of his service to fully honorable.  Furthermore, regulations currently in effect provide the reason for the applicant's discharge as physical standards.  Accordingly, the ADRB voted to change the narrative reason for his separation on his DD Form 214 to "Physical Standards" with a corresponding separation designator code of "JFT."

13.  The applicant provides a copy of his service and post-service medical records, VA rating decisions, and miscellaneous correspondence; however, there is insufficient evidence in the available service record which shows he sustained a disabling medical condition or was issued a permanent physical profile.  There is also no evidence to show that he could not perform the duties of his military occupational specialty (MOS).

14.  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 office, grade, rank, or rating.  It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also states the following:

	a.  Paragraph 3-1 provides 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.
	
	b.  Paragraph 3-2b(2) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraph 3-2b(2)(a) and 3-2b(2)(b) state that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.
	
	d.  Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD).  The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty.  

15.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in the military service

16.  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.

17.  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 an 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 Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have 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.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  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’s contentions and supporting documents have again been carefully considered.

2.  The evidence of record shows that the applicant could perform the duties of his MOS right up to the time of his discharge but he did not pass the APFT from the time he arrived at Fort Riley until he was discharged for that reason.  He did not pass the APFT before or after his tour in Iraq and he continued to gain weight.  His MACE score before deployment was only 3 points lower after his deployment, which is not a significant change.

3.  Counsel’s contention that the applicant was rated 90% service-connected within 24 hours after his discharge in March 2010 has also been carefully considered.  The applicant’s first VA Rating Decision was made in October 2010 and in accordance with VA policy, was made retroactive to the day following his discharge.

4.  The applicant’s contention that the Army disregarded the applicant’s symptoms and medical conditions has also been noted and appears to lack merit or evidence to support his assertion.  In fact, it appears that the Army gave him every benefit of the doubt by delaying his discharge for failure to pass an APFT as long as it did.  Additionally, neither counsel nor the Board were present on the ground to view the applicant’s performance or demeanor and there is no evidence to show that it was other than is represented by his records.

5.  The PDES provides that 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 a physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform based on the Soldiers office, grade, rank, or rating.

6.  The applicant appears to have been physically or medically fit at the time of his discharge from active duty in March 2010 as shown by his separation physical and mental health evaluation performed in January 2010.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service and 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.

7.  Additionally, counsel has failed to show through the evidence submitted or the evidence of record that the medical authorities who made the assessments in the applicant’s case were other than competent medical authorities. 

8.  Notwithstanding counsel’s contentions, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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 to amend the decision of the ABCMR set forth in Docket Number AR20130003387, dated 6 February 2014.




      _______ _   __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)                                         AR20140006460





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ABCMR Record of Proceedings (cont)                                         AR20140006460



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