IN THE CASE OF:  	  

		BOARD DATE:  28 April 2015	  

		DOCKET NUMBER:  AR20140014611 


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 correction of his record to show he was retired for permanent disability.

2.  The applicant states:

* he is a Purple Heart (PH) recipient and a disabled veteran rated 90 percent (%) disabled by the Department of Veterans Affairs (VA)
* he was awarded 70% disability for traumatic brain injury (TBI) and 70%  for post traumatic stress disorder (PTSD)
* he was unaware that he was involuntarily extended while in the U.S. Army Reserve (USAR)
* he should have had a claim filed and a medical evaluation board (MEB) should have been initiated
* each of his disabilities would be sufficient for retirement 
* his disabilities were connected to his service in Iraq

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* PH Certificate
* orders
* VA rating decision
* VA medical records
* treatment records
* DD Form 2697 (Report of Medical Assessment)
* DA Form 2173 (Statement of Medical Examination and Duty Status) 

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.  After having prior enlisted service in the U.S. Marine Corps, the applicant enlisted in the U.S. Army Reserve (USAR).  He completed initial entry training and was awarded military occupational specialty (MOS) 21E (Heavy Equipment Operator).  His medical records show a history of shoulder instability and surgical repair.

3.  On 13 April 2009, the applicant was mobilized as a member of the USAR and ordered to active duty under the provisions of Title 10, U.S Code, section 12302.

4.  On 16 April 2009, the applicant had a physical exam that concluded he was fully fit for duty with a physical profile (PULHES) of 111121.  This rating is consistent with earlier issued profiles. 

5.  Orders 142-056, issued by Headquarters, U.S. Army Garrison, Fort McCoy, WI, dated 22 May 2009, shows he was assigned to U.S. Army Central Command in support of Operation Enduring Freedom (OEF). 

6.  Medical records show he was seen by a physician on 17 February 2010 following physical trauma caused by an improvised explosive device (IED) on 13 January 2010 in Iraq.  His chief complaint was headaches.  He subsequently sought treatment for knee pain and continued treatment for headaches.

7.  On 30 March 2010, upon his return from Iraq, he received a medical evaluation prior to his release from active duty at Fort McCoy, WI.  The DD Form 2697 prepared by the applicant and authenticated by a medical professional states that compared to his last medical examination his overall health was the same.  He did report a concussion from the IED.  He indicated he had not suffered any other injury or illness while on active duty for which he did not seek medical care.  He stated he was not taking any medications and that he did not have any conditions which limited his ability to work in his MOS or that required geographic or assignment limitations.  He did state he had two new concerns about his health.  He stated he did work in the burn pits while in Iraq, that his left shoulder hurt, and that he "falls asleep" often.  The medical professional stated the applicant did not require further medical evaluation and authenticated the form.

8.  On 22 April 2010, he was honorably released from active duty and transferred to his USAR unit.  He completed 1 year and 10 days of net active service this period and served in Iraq from 28 May 2009 to 28 March 2010.  He received the Purple Heart for injuries incurred on 13 January 2010.

9.  His military medical records document his treatment following physical trauma; however, they do not address his ability, or lack thereof, to perform his military duties in accordance with his MOS and grade.  

10.  He provides his VA medical records that show he received physical and mental examinations at the VA while a member of a USAR unit.  His initial evaluation and treatments started in June 2010 nearly two months after his release from active duty.  He was treated at the Ann Arbor (MI) VA Medical Center (VAMC) from June 2010 to December 2011 and at the Marion (OH) VAMC from March 2012 to March 2014.  In addition, the VA contracted out examinations on 15 January, 23 January, and 14 February 2013.  

11.  On 19 March 2013, while an outpatient at the Marion VAMC, he was honorably discharged from his USAR unit after completing his service obligation.

12.  On April 25, 2014, the VA issued its rating decision.  The VA determined his TBI with residual headaches and cognitive impairment, PTSD with depressive disorders not otherwise specified, tinnitus, and degenerative arthritis in his right shoulder were service-connected.  He received a 70% service-connected disability rating for TBI and a 70% service-connected disability rating for PTSD.  The effective date of the ratings was 28 February 2012, the date his original disability claim was received at the VA. 

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  It provides for medical evaluation board (MEB), which is 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).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

14.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD).  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

     a.  Paragraph 3-30 provides for neurological disorders that necessitate referral to an MEB, including migraine, tension, or cluster headaches, when manifested by frequent incapacitating attacks.  All such Soldiers will be referred to a neurologist, who will ascertain the cause of the headaches.  If the neurologist feels a trial of prophylactic medicine is warranted, a 3-month trial of therapy can be initiated.  If the headaches are not adequately controlled at the end of the 3 months, the Soldier will undergo an MEB for referral to a PEB.  If the neurologist feels the Soldier is unlikely to respond to therapy, the Soldier can be referred directly to MEB.  Also cause for referral is TBI, when after adequate treatment there remain residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, uncoordination, tremor, pain, or sensory.

     b.  Paragraph 3-32 states mood disorders may be cause for referral to an MEB if there is persistence or recurrence of symptoms: 

		(1)  sufficient to require extended or recurrent hospitalization; or

		(2)  necessitating limitations of duty or duty in protected environment; or

		(3)  resulting in interference with effective military performance.

15.  Department of Defense Instruction (DoDI) 1332-18 (Disability Evaluation System) states the Secretary of the Military Department will refer Service members who meet the criteria for disability evaluation regardless of eligibility for disability compensation.  Medical authorities will refer eligible Service members into the PDES who have one or more medical conditions that may, individually or collectively, prevent the Service member from reasonably performing the duties of their office grade, rank or rating including those duties remaining on a Reserve obligation for more that 1 year after diagnosis.  Reserve component members who are not on orders to active duty specifying a period of more than 30 days but who incurred or aggravated a medical condition while the member was ordered to active duty for more than 30 days should also be referred to the PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he was treated for headaches resulting from physical trauma caused by an IED which could lead to TBI, a condition that may be cause for referral to an MEB if, after treatment, residual symptoms remain.  There is insufficient evidence in the available records to show he was suffering from TBI following his physical trauma; however, the possibility cannot be discounted because he sought initial medical treatment from the VA only 2 months after he was released from active duty and while a member of a USAR unit.  

2.  While undergoing medical treatment at the VA as a member of the USAR, he initiated his disability claim on 28 February 2012.  His initial VA examinations for TBI and PTSD occurred years prior to his separation from the USAR.  There is no indication his commander or other designated USAR representative referred the applicant for processing through the Army PDES prior his discharge.  Nor is there evidence the applicant requested processing through the PDES based on his treatment for TBI and PTSD at the VA.  

3.  In view of the foregoing evidence, there is insufficient evidence to grant the applicant's request for medical retirement; however, as a matter of justice he should be allowed to be considered by an MEB to make a determination if his case should or should not be referred to a PEB for a determination of fitness and a possible rating.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 the Office of The Surgeon General contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation and, if appropriate, an MEB through the use of invitational travel orders to the applicant.

	a.  In the event a PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a PEB.

	b.  If warranted, all required reviews and approvals will be made subsequent to completion of the PEB.

	c.  If a determination is made that he should have been separated through the PDES, these Proceedings serve as the authority to:
      
* void his discharge from the USAR
* issue the appropriate disability separation order effective 19 March 2013
* if required by law, pay him all back pay less any entitlements already received

2.  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 retiring him for permanent disability.




      ___________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)                                         AR20140014611



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ABCMR Record of Proceedings (cont)                                         AR20140014611



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