BOARD DATE: 5 February 2015
DOCKET NUMBER: AR20140008194
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, correction of his records to show that he was discharged from the U.S. Army Reserve (USAR) on 24 May 2013 due to disability vice honorably discharged.
2. The applicant states:
a. He was discharged from the USAR on 24 May 2013 before completion of a medical evaluation board (MEB) for injuries he received while serving on active duty in Kuwait. He was in a Humvee when it rolled over and he was thrown from the vehicle and knocked out. When he came to, he was in the hospital with a head injury, an open wound to his left leg, and lower back pain.
b. Once he was discharged from the hospital, he was medically evacuated to Fort Benning, GA, and enrolled in the Warrior Transition Battalion (WTB) from July 2010 to May 2011. After his doctors felt he was strong enough to be released from the program. He got a civilian job in Phoenix City, AL, at a chicken plant. While working there, he performed many jobs. Not long after he started working there, he started having more and more pain in his lower back, left leg, and arms; it ended up costing him his job.
c. After losing that job, he returned with his family to Tuscaloosa, AL, and took a job at a mental health hospital as a floor technician. While working there, he started experiencing chronic back pain which made it difficult for him to bend over or even stand for long periods of time. He also started to experience more numbness in his arms and because of these issues, he was let go from the job.
d. He went to the doctors and the pain got worse and worse. The pain in his arms started in his neck and went all the way down to his hands and he cannot grab or hold anything. His lower back pain is so bad it feels like it is about to snap or that someone is constantly stabbing him in the lower back. He has really bad night sweats to the point that he only gets about 2 hours of sleep at night; he sleeps better in the daytime but not very good even then.
e. His anger has gotten so bad that he has gotten to the point that he has had thoughts of hurting himself or others. He has a fear of crowds and cant go shopping for himself and has to send his spouse to get his personal items. He cant drive due to the fact that he has flashbacks of the military vehicle accident that seem to be triggered by headlights. Due to all his pain, he cant play with his children as he cant run or walk for a long period of time without having to stop to rest.
3. The applicant provides 329 pages of various medical records, dated between 26 May 2005 and 2 May 2011.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the USAR on 11 February 2005 for a period of 8 years. His Mandatory Reserve Obligation (MRO) date was 10 February 2013.
2. He served on initial active duty for training (ADT) as a member of the USAR and entered active duty on 10 August 2006.
3. He completed ADT and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator). He was honorably released from ADT on 8 November 2006 to the control of his USAR unit.
4. He served on active duty as a member of his USAR unit in support of Operation Iraq Freedom (OIF) in MOS 88M from 15 June 2007 to 4 July 2008. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he served in Iraq from 25 August 2007 to 9 June 2008.
5. He was assigned to the 287th Transportation Company, USAR, Livingston, AL. He was ordered to active duty as a member of his USAR unit in support of OIF and he entered active duty on 17 November 2009. He deployed with his unit to Kuwait on 10 January 2010.
6. The applicant provides, in part:
a. An SF 600, dated 7 June 2010, wherein it shows he was admitted to the U.S. Military Hospital Kuwait (USMHK) on that date. The treating physician noted he was the restrained driver of a Humvee in a rollover accident 2 days prior (emphasis added). He was initially admitted to the Al Adan Hospital and transferred to the USMHK that date for ongoing wound care and pain control. The main injuries were a right pulmonary contusion (resolved) and multiple soft tissue abrasions and lacerations to his back, left buttock, anterior/medial thigh, and left medial calf. His past medical history included migraines and chronic knee pain. His head, eyes, chest, and abdomen were normal. He had a laceration and suture repair to his left groin and left medial calf. Imaging studies showed no intracranial bleeding and no intra-abdominal injury. He was subsequently released from the hospital.
b An SF 600, dated 12 June 2010, wherein it shows he was seen at the USMHK on that date to have his sutures checked. The treating physician noted there was dehiscence (splitting open) of the surgical wound on his inner thigh likely related to the location of the wound, the applicant's smoking, and stress on the wound. He was counseled to stop smoking, released without work/duty limitations, and told to return for a follow-up.
c. An SF 600, dated 14 June 2010, wherein it shows he was seen at USMHK on that date for a complaint of dehiscence of the surgical wound. The treating physician noted the applicant was reassured it did not look infected and that he appeared to be having a hard time mentally as he appeared anxious and sad. He had an appointment with behavioral health (BH) the next day. He was released without work/duty limitations.
d. An SF 600, dated 19 June 2010, wherein it shows he was seen that date for a follow-up at USMHK. The treating physician noted there was some superficial fibrinous exudate at his left thigh wound that was debrided easily with suture scissors. The majority of the wound appeared healthy. He discussed the applicant's case with the BH physician who felt medical evacuation was appropriate for his combined physical and behavioral limitations. He was released without work/duty limitations. He was subsequently medically evacuated to Landstuhl Regional Medical Center (LRMC), Germany.
e. An SF 600, dated 28 June 2010, wherein it shows he was seen on that date as an outpatient in the Psychiatry Clinic, LRMC. The examining psychiatrist noted, in part, symptoms of acute stress disorder began after he was involved in a rollover accident on 5 June 2010. He stated he felt worthless to his unit, had flashbacks when seeing a Humvee, and stressors at home made recovery more difficult. She noted there were no abnormalities of appearance, his eye contact was appropriate, his thought processes were linear, logical, coherent, and goal-directed. There was no evidence of thought disorder and no perceptual abnormalities were noted or reported. He was referred to LRMC BH outpatient care for follow up until his return to the continental United States (CONUS) for further treatment and would travel unescorted.
f. An SF 600, dated 28 June 2010, wherein it shows he was seen on that date as an outpatient in the Internal Medicine Clinic, LRMC. The treating physician noted, in part, the applicant was seen for a routine wound dressing change. He was living in the military barracks while undergoing medical evaluations. He was wheelchair dependent but was able to walk short distances. There was no limb swelling, he was in no acute distress, and he had minimal to moderate pain. He was released without work/duty limitations.
g. An SF 600, dated 30 June 2010, wherein it shows he was seen on that date as an outpatient at LMRC for clearance to transfer him to CONUS for further care. The examining physician noted, in part, he was cleared for transfer to CONUS for continued care. He had TBI, mild, positive, symptomatic and mild left thigh pain. He was diagnosed with a post motor vehicle accident left thigh wound and acute stress disorder. He was subsequently returned to CONUS and assigned to the 287th Transportation Company (Minus), Fort Benning, GA.
h. An SF 600, dated 3 July 2010, wherein it shows he was seen on that date as an outpatient at the Emergency Room, Martin Army Community Hospital (MACH), Fort Benning, for screening. The examining physician noted, in part, he stated that he had enough medication until 6 July 2010 and was not stressed at that time.
i. A Radiologic Examination Report, dated 6 July 2010, wherein it shows a lumbar spine x-ray was ordered due to the applicant's complaint of lower back pain with radicular symptoms into the buttocks. The radiologist found the vertebral alignment was normal, the bodies and disc spaces were intact, no fracture or dislocation was seen, no compression deformity, spondylosis, or spondylolisthesis was noted, and the sacro-iliac joints were normal.
j. An SF 600, dated 9 July 2010, wherein it shows he was seen on that date for an initial evaluation as an outpatient at the TBI Clinic, MACH. The examining physician noted, in part, the applicant had been in a rollover accident in which he sustained a puncture injury to his thigh and mild TBI. He had stated there was loss of life in the vehicle, he had some survivor's remorse, he had a concussion, lost consciousness, had no memory of the accident, and had been dazed, confused, and saw stars. He was going to be entered in the TBI program which consisted of a 12 to 16 week program and would consist of screening/treatment by various providers to include primary care, neurology, psychiatry, social work services, physical therapy, and nurse case management. It was explained to the applicant that TBI was not an illness but an event and with good recovery results. He was on [temporary] profile and did not have an MEB pending.
7. Orders A-08-022769, dated 11 August 2010, issued by the U.S. Army Human Resources Command (HRC), St. Louis, retained him on active duty and assigned him to the WTB, Fort Benning, GA, effective 11 August 2010 for the purpose of participating in the Reserve Component (RC) Warrior in Transition Medical Retention Processing Program for medical care and treatment.
8. He provides various medical records that show he continued to receive follow up treatment as an outpatient at MACH from various health care providers from July to December 2010. He also provides:
a. An SF 600, dated 27 January 2011, wherein it shows he was seen on that date for a 30-day follow up as an outpatient at the Warrior Clinic, MACH, and for an updated profile. The treating physician noted, in part, the applicant stated he was concerned about a hard mass on his scalp 8 months after injuring it in a motor vehicle accident and had no other concerns. He found the scalp showed abnormalities, a hard 2.5 centimeter sub-Q mass palpated on the scalp. There was no scar on the head, no skull tenderness, and no crepitus. A psychiatric exam showed his appearance and behavior were normal and his thought process was not impaired. A computerized tomography (CT) scan was ordered for the applicant and he was released without work/duty limitations.
b. An SF 600, dated 27 January 2011, wherein it shows he called the CM Clinic, MACH, and requested a referral on that date for marital counseling near Tuscaloosa, AL, to attend with his spouse. The CM noted, in part, his spouse was 2 months pregnant and they were experiencing increased stress with separation. He was also being referred for weight loss and good eating habits counseling. He was preparing to return to duty with limitations for upper and lower body and was pending a functional assessment.
c. An SF 600, dated 28 January 2011, wherein it shows he was seen on that date for an updated profile at the CM Clinic, MACH. The CM noted, in part, he had a temporary profile that expired on 5 January 2011. He was released with duty limitations.
d. A Radiologic Examination Report, dated 4 March 2011, wherein it shows a CT was conducted on that date. The radiologist found the applicant's brain morphology appeared normal and there was no evident mass, midline shift, or other evidence for mass effect. Benign physiologic intracranial calcifications were identified and were likely post-traumatic normal.
e. An SF 600, dated 9 March 2011, wherein it shows he was seen on that date for a follow up at the CM Clinic, MACH. The CM noted, in part, he had surgery for an umbilical hernia on 4 August 2010 and it had healed without complication. He took pain medication with good relief and desired to return to duty. He had been cleared by all TBI services to be released from active duty (REFRAD). He was released with temporary work/duty limitations.
f. An SF 600, dated 2 May 2011, wherein it shows he was seen on that date for clearance at the CM Clinic, MACH. The CM noted, in part, he desired to return to duty, was low risk, he had been cleared by all TBI services to be REFRAD and had a transition review board on 24 March 2011. He had REFRAD orders and clearance papers. He was released without work/duty limitations.
9. He was honorably REFRAD on 9 May 2011 to the control of his USAR unit (the 287th Transportation Company) by reason of completion of required active service. The DD Form 214 he was issued for this period of service shows he served in Kuwait from 10 January to 3 July 2010 and his MSO date was 10 February 2013.
10. There is no evidence in his available record, and he did not provide any evidence, that shows while serving on active duty that he was treated for, or diagnosed with, any mental/medical condition/disorder that permanently prevented him from performing his assigned duties, was found to be unfitting, or required referral to an MEB or physical evaluation board (PEB). There is no evidence that shows while serving on active duty that he ever received a permanent profile of "3" that would require referral to an MEB/PEB.
11. A review of his records shows after his REFRAD, he continued to perform inactive duty training (IDT) and active duty (AD) with his Reserve unit from 4 February through 13 October 2012. For the retirement year 11 February 2012 to 10 February 2013, he was credited with 34 IDT points, 15 AD points, and 15 membership points towards a Reserve retirement.
12. Orders 13-144-00066, dated 24 May 2013, issued by Headquarters, 81st Regional Support Command, honorably discharged him from the USAR effective 24 May 2013. These orders stated the applicant was held beyond his normal discharge date through no fault of his own.
13. There is no evidence in his record that shows he tried to reenlist in the USAR prior to his MSO date and was medically disqualified from reenlisting.
14. There is no evidence in his available record, and he did not provide any evidence, that shows while serving in the USAR after his REFRAD in May 2011 that he was treated for, or diagnosed with, any mental/medical condition/disorder that prevented him from performing his assigned duties, was found to be unfitting, or required referral to an MEB/PEB. There is no evidence that shows while serving in the USAR after his REFRAD in May 2011 that he ever received a permanent profile of "3" for injuries received during his USAR training that would require referral to an MEB/PEB.
15. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states:
a. MEB/PEBs 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 qualification for retention based on the criteria in Army Regulation 40-501(Standards of Medical Fitness), chapter 3.
b. Under the laws governing the Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing AD or IDT.
16. Army Regulation 635-40 further states 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/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 that service member can be medically separated or retired.
17. Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation. Paragraph 9-12 states Reserve component (RC) Soldiers with non-duty related (NDR) medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness. The process is designed to give the Soldier with NDR impairments the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms the applicant suffered injuries in an accident in June 2010 in Kuwait while serving on active duty as a member of his USAR unit. He received treatment for those injuries and received follow-up medical and BH care from June 2010 through March 2011. He was subsequently found to be fully fit for duty and was honorably REFRAD on 9 May 2011 to the control of his USAR unit without any work/duty limitations.
2. After his release from active duty, he continued to serve with his USAR unit to his MSO date of 10 February 2013. There is no evidence in his record and he hasnt provided any evidence that shows he tried to reenlist in the USAR prior to his MSO date and was medically disqualified from reenlisting for any duty-related or NDR condition/disorder. He was subsequently honorably discharged from the USAR on 24 May 2013.
3. There is no evidence in his available record, and he did not provide any evidence, that shows while serving in the USAR that he was treated for, or diagnosed with, any mental/medical condition/disorder that was duty-related or NDR that prevented him from performing his assigned duties, was found to be unfitting, or required referral to an MEB/PEB. There is no evidence that shows while serving in the USAR that he ever received a permanent profile of "3" that would require referral to an MEB/PEB.
4. In the absence of evidence to the contrary, it is presumed what the USAR did in his case was correct and he was properly discharged from the USAR in May 2013 as he had served through his MSO date.
5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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.
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