ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS

	
		BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140016672 


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.  This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. Court of Federal Claims.  The court directs the ABCMR to reconsider the applicant's request for a medical discharge. 

2.  The applicant filed a complaint in the Court of Federal Claims on 13 December 2013.  The Court issued an Order on 15 July 2014.  The Court stated it received the applicant's unopposed motion for remand to the ABCMR.  The Order states the applicant's claim in the amended complaint is for disability retirement pay (and any related allowances and expenses) for the time period beginning on 13 December 2007 and notes that although the ABCMR "previously made a determination regarding his disability claims based on the documents available at the time, which have been filed in volume I of the administrative record, since that time, the United States and applicant undertook an extensive search for all available records and all such records that were located have been filed in volume II of the administrative record."  Plaintiff’s motion for remand proposes the following issues be remanded to the ABCMR: 

	a.  afford the applicant the opportunity to present in writing to the ABCMR any arguments based upon the evidence in the administrative record regarding his claim in this case for disability retirement pay (and any related allowances and expenses) for the time period beginning on 13 December 2007; and

	b.  evaluate and adjudicate the merits of the applicant's claim in this case for disability retirement pay (and any related allowances and expenses) for the time period beginning on 13 December 2007. 

COUNSELS REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for processing through the physical disability evaluation channels. 

2.  Counsel states:

	a.  The applicant has honorably served in the military, on both active duty and as a guardsman, for almost 13 years. He enlisted in the Georgia Army National Guard (GAARNG) on 17 May 1995 and entered active duty on 11 September 1995 for his initial entry training.  He completed his training and was awarded military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).  On 26 January 1996, he was honorably released from active duty (REFRAD) and transferred to the GAARNG.  He then served with North Atlantic Treaty Organization (NATO) forces in Bosnia during his early years with the ARNG. 

	b.  On 2 December 2004, he was mobilized and ordered to active duty in support of Operation Iraqi Freedom.  He was exposed to nine improvised explosive device (IED) explosions, the most serious of which was a direct hit to his Bradley Fighting Vehicle on 2 July 2005.  He was rendered unconscious and awoke when he was being dragged from the Bradley.  He was treated shortly after the blast for a severe headache, stomach pain, and neck pain.  An excerpt from his military medical record shows that on 3 July 2005 he received medical treatment for pain in his neck and shoulder due to injuries sustained from an lED explosion on 2 July 2005.  As the ibuprofen prescribed the day before was not helping the pain, he was prescribed Lortab, a narcotic, for the pain.  Upon returning to duty the next day, he continued to have stomach pain with vomiting, as well as headaches.  On 24 August 2005, he was awarded the Combat Infantryman Badge for participating in ground operations under hostile fire in Iraq the day of the lED blast.  On 2 October 2005, he was seen by Captain (CPT) F--k for symptoms of pain starting in his upper back and radiating to his neck and head.  It was causing him to feel nauseous and occasionally vomit.  He complained of seeing spots and of orbital pain.  The doctor noted on 2 October 2005 that the lED attack seemed to intensify his headaches; however, no further testing was ordered.   

	c.  CPT F--k made a request for neurology consult on 3 October 2005, based on a provisional diagnosis of post-concussive syndrome and tension headaches. On 4 October 2005, the applicant was seen by Dr. H--, who noted that since the lED blast on 2 July the applicant's headaches had been increasing, and he was also experiencing dizziness, photophobia, phonophobia, upper back pain, and leg tingling.  In this same assessment, the doctor noted that the applicant was having migraine-type headaches, but the trigger was unknown.  He was prescribed Imitrex, with no further testing ordered.  On 12 December 2005, he was awarded the Purple Heart for wounds received on 2 July 2005. 

	d.  Before he left the theater, the Army was required per the Army Personnel Policy Guidance (PPG) to complete a DD Form 2796 (Post-Deployment Health Assessment (PDHA)), as required by paragraph 7.2 of the PPG.  The PPG was in effect when he was discharged, but the version of the PPG in effect during his discharge cannot be located.  He believes the provisions applicable to this case are the same as the current version.  The DD Form 2796 cannot be found in his records.  In addition to this evaluation, a second evaluation is to be performed at the demobilization site.  Paragraph 7-12 of the PPG lists many requirements for releasing from active duty and demobilization.  Among them are a separation health assessment and medical retention processing.  The separation health assessment requires the completion of a self-assessment by the Soldier and a face-to-face interview with a health care provider (physician, physician assistant, or nurse practitioner) to review the Soldier's complete medical record review including DD Forms 2796, 2697 (Report of Medical Assessment), 2795 (Pre-deployment Health Assessment), and all medical records to identify any complaints or potential service-related (incurred or aggravated) illness or injury and determine if a consultation, physical examination, or further medical care is required.  If a Reserve Component (RC) Soldier does not meet medical retention standards of Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3, they are to be referred to a medical evaluation board (MEB).  

	e.  During the applicant's REFRAD/Demobilization processing from active duty, he became ill with what he thought was the flu.  He should have been placed on a medical hold status until he was able to complete all the required processing, but instead he was sent to a hotel to recover.  His out-processing was deemed complete and he was sent back to the ARNG, without referral to the Army's physical disability evaluation process.  Had he had the opportunity to meet face-to-face with a medical provider and have someone review his records, it is likely further testing would have been warranted.  Instead, on 31 May 2006, he was honorably REFRAD upon completion of required active service and returned to the GAARNG without any medical processing as required in the PPG. He completed 1 year, 5 months, and 25 days of net active service this period.

	f.  Two months after his discharge from active duty, he was transported to the hospital for symptoms of vomiting and burning stomach pain.  On 31 July 2006, he was admitted and spent 34 days in the intensive care unit (ICU).  His kidneys began to shut down, and he was placed on mechanical ventilation via temporary tracheotomy for cardiac and respiratory failure.  Upon recovering from being on life support, he returned home.  He was hospitalized three times over the next seven months for pancreatitis.  He was evaluated by the State Surgeon and diagnosed with recurrent acute pancreatitis on 30 November 2006.  The pancreatitis was originally found to be in the line of duty, and he received a line of duty determination rendering him indefinitely unfit to perform his duties effective 31 November 2006.  According to AR 40-501, Soldiers who fail medical retention standards must be referred to an MEB.  Chapter 3, paragraph 5i, specifically states that pancreatitis, chronic does not meet retention standards.  He should have been processed through medical channels after his line of duty determination.  It seems clear that he should not have been discharged from active duty as his conditions can be tied directly back to his deployment.  

	g.  There was another opportunity for the Army to follow its own regulations when he was required to have a Post Deployment Health Reassessment (PDHRA) 120 days after his return from deployment (PPG paragraph 7-8(c)). This should have occurred around the same approximate time frame that he was diagnosed with acute pancreatitis in November 2006.  This form allows the service member to voice concerns to a medical provider who can order more testing, if necessary.  This, however, was not completed.  This was another missed opportunity to discover the connection of the blast in July 2005 to his current illnesses.  

	h.  He was sent to a military doctor at Fort Gordon in February 2007 as was requested by the medical detachment of the GAARNG.  After an examination on 5 February 2007, it was recommended by the treating physician that he "return to duty with P-2 profile or refer to the MEB as part of his treatment plan."  The doctor explained to him and his wife that he had two choices-he could write a letter to a review board and have him discharged, or he could write a letter stating he was fit for duty.  He chose the latter, as he intended to be a career Soldier.  However, this was not a choice he was capable or qualified to make.  As stated above, he should have been referred to an MEB for the pancreatitis at this point.  It is a non-waiveable provision that cannot be contracted away.  He received incapacitation pay for October-December 2006, and January-February 2007 for his pancreatitis.  At this point, he thought he would try the Department of Veterans Affairs (VA) hospital, as he was hopeful that they could provide answers the civilian hospitals could not.  On 9 May 2007, he told his story to Operation Iraqi Freedom/Operation Enduring Freedom coordinator, who upon learning he had received a Purple Heart for the lED explosion on 2 July 2005 suspected that the applicant might have a Traumatic Brain Injury (TBI).  He was referred to the TBI clinic, and had his first appointment on 12 June 2007.  After his initial consult at the clinic, he was referred for a magnetic resonance imaging (MRI) of his brain.

	i.  The MRI was scheduled for July 2007, which confirmed he did in fact have TBI, with damage to both the temporal and frontal lobes of his brain.  If medical care directly after his lED explosion had included an MRI, the TBI would have been immediately discovered, and the resulting post-traumatic stress disorder (PTSD) symptoms better understood.  The Army's lack of substantive testing in light of the lED concussive explosion and migraine headaches is the reason the TBI was not discovered during his time on active duty.  Further, as per the Army's PPG, there are certain requirements for medical procedures during REFRAD.  These requirements do not to appear to have been complied with, as a thorough review of his medical file would have revealed the lED explosion and head trauma, warranting further questioning and documentation.  As he was sick with what he thought was the flu during most of outprocessing, he did not receive the full medical attention he deserved. 

	j.  He was issued Orders 114-005, dated 23 May 2008, from the Adjutant General, State of Georgia, showing his honorable separation from the GAARNG effective 16 May 2008.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 16 May 2008, item 23 (Authority and Reason), shows he was honorably separated under the provisions of paragraph 8-35a, National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) upon expiration term of service (ETS).   

	k.  He first petitioned this Board on 1 June 2010.  His first petition was denied on 3 March 2011 (AR20100016467).  The reason for the denial was that he was not diagnosed with TBI and referred to an MEB while on active duty.  In addition, they stated that since he continued to successfully perform his duties, he was not eligible for a medical discharge.  This is not accurate, and disregards the fact that he failed to meet medical retention standards under AR 40-501, paragraphs 3-5i (pancreatitis), 3-30j (TBI), and 3-33 (anxiety disorders for PTSD).  He petitioned this Board for reconsideration on 21 February 2012.  In his reconsideration request, he included an evaluation from a licensed psychologist.  In addition, he highlighted the fact that he was in fact declared unfit for continued military service on 31 July 2006 indefinitely, due to pancreatitis.  This pancreatitis has been directly linked to his PTSD, which stems from the incident on 2 July 2005.  This Board, in its second denial, stated that there was no evidence that he was diagnosed with TBI and referred to an MEB while he was mobilized in support of Operation Iraqi Freedom or was an active member of the GAARNG.  While this is true statement, all the symptoms of a TBI and other disqualifying illnesses were present and documented before his discharge.  His first VA rating decision, dated 6 February 2009, makes this connection and lists his service-connected conditions as: tendonitis, post-concussive syndrome with memory loss residuals of TBI, and migraines.  Had the Army followed the guidance in the PPG as required, these injuries would have been fully documented and evaluated before his separation.  On 16 October 2012, this Board denied his reconsideration question, thereby ending his appeal rights through the ABCMR (AR20120004332).  The reasons cited by this Board were the same as the first denial.  After erroneously concluding there was no evidence that he suffered a condition calling into doubt his medical qualification for retention, this Board held that he was not entitled to disability processing.

	l.  Despite his injuries, a mandatory MEB was never convened for further evaluation of his service disqualifying conditions and he was not referred into the physical disability evaluation system as prescribed by AR 40-400 (Patient Administration), paragraph 7-1, and AR 40-501, paragraph 3-30g (migraine headaches), paragraph 3-30j (other neurological disorders), and paragraph 3-5i (pancreatitis).  He was not processed for an MEB, or a physical evaluation board (PEB), as is required for these conditions.  He was serving on active duty, as defined by Title 10, U.S. Code, section 101(d)(2) when he was injured.  His active duty service began on 6 December 2004, and his separation occurred on 31 May 2006.  He remained in the ARNG until May 2008.  He has not received any disability retirement compensation.  His condition has become progressively worse since the date of his initial injury, and has manifested into other conditions as a result.  He filed a complaint in the Court of Federal Claims on 13 December 2013.  After an exhaustive search for all the documents relevant to his case, both the government and he agreed to remand the case to this Board, who has not had an opportunity to review the entire case file. 

	m.  In light of the above, he requests a reconsideration of his request for processing through physical disability evaluation channels.  He has suffered tremendously, and should be afforded the opportunity to be processed through medical channels.

3.  Counsel provides a CD that contains an "Administrative Record Index" consisting of Tabs A through N with Tab N containing 56 enclosures, as shown on the "Index." 

* Decision Memorandum ABCMR and Record of Proceedings, ABCMR Docket Number AR20120004332
* Letter from Army Review Boards Agency (ARBA) to applicant acknowledging receipt of 21 May 2012 correspondence
* Attorney letter to ARBA, Reference: Request for Reconsideration and additional documents forwarded to the ABCMR
* Letter from ARBA to attorney acknowledging receipt of 23 February 2012 correspondence 
* Applicant's request to enclose seven additional documents with request for reconsideration
* Applicant's formal request for reconsideration
* Email messages from ARBA to attorney, Reference: 20 January 2012 letter concerning an application for records correction
* Letter from attorney to ARBA
* Email message between the applicant and ARBA, Subject: Application for correction of records
* Decision Memorandum and Record of Proceedings ABCMR Docket Number AR20100016467
* Applicant's Official Military Personnel File (OMPF): 

* Decision Memorandum ABCMR AR20120004332
* ABCMR Record of Proceedings AR20120004332
* Decision Memorandum ABCMR AR20100016467
* ABCMR Record of Proceedings AR20100016467
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* NGB Form 22
* ARNG Current Annual Statement 
* Order 144-005, discharge from the ARNG
* NGB Form 55 (Honorable Discharge Certificate, ARNG)
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* DA Form 2-1 (Personnel Qualification Report - Part II)
* Order 029-179, reassignment
* Order 241-018, revoking of Order 117-043
* Order 121-118, revoking Order 110-113
* Order 117-043, transfer to new duty position
* Receipt of Military Personnel Records Jacket (MPRJ)
* Orders 112-0039, release from active duty
* Order 110-113, transfer to new duty position
* DA Form 4960-12 (Meritorious Service Medal)
* Statement of Service
* DA Form 4187 (Personnel Action), Recommendation for Purple Heart
* Permanent Orders Number 341-57, award of the Purple Heart
* Certificate – Purple Heart
* Personnel Qualification Record - Enlisted
* Orders 337-639, ordered to active duty
* ARNG Annual Statement
* DA From 4836 (Oath of Extension of Enlistment or Reenlistment)
* DD Form 4 (Enlistment/Reenlistment Document)
* NGB Form 600-7-3-R-E (Annex R to DD Form 4, Reenlistment/Extension Bonus Addendum)
* DD Form 93 (Record of Emergency Data)
* SGLV-8286 (Servicemembers’ Group Life Insurance Election and Certificate)
* Orders 294-014, promotion to sergeant (SGT)/E-5
* DA Form 1059 (Service School Academic Evaluation Report)
* Order 100-074, transfer to duty station 
* Order 27-0399, transferred to new duty position
* Order 308-102, order to active duty
* NGB Form 600-7-3-R-E (Annex R to DD Form 4, Reenlistment/ Extension Bonus Addendum)
* DA Form 4187, promotion to E-3 and E-4 
* Order, reduction from private first class/E-3
* Order 310-1578, award of MOS
* NGB Form 21 (Annex A – DD Form 4)
* Orders 94-11, ordered to initial active duty for training (IADT)
* DD Form 1966/1-1966/3 (Record of Military Processing – Armed Forces of the United States)
* NGB Form 590 (Statement of Understanding of Reserve Obligation and Responsibilities)
* DA Form 5435-R (Statement of Understanding the Selected Reserve Montgomery G.I. Bill)
* Additional Documents

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 ABCMR in Docket Number AR20110016467, on 3 March 2011, and in Docket Number AR20120004332, on 16 October 2012.  

2.  The applicant enlisted in the GAARNG on 17 May 1995.  He entered ADT on 11 September 1995 and completed required training for award of MOS 11M.  He was released from ADT on 26 January 1996.  

3.  He executed two 3-year extensions in the ARNG on 14 October 2000 and on 14 March 2004.  He completed the Primary Leadership Development Course on 27 September 2003 and he was promoted to SGT/E-5 on 28 September 2003. 

4.  On 2 December 2004, GAARNG published Orders 337-639 ordering him to active duty in support of Operation Iraqi Freedom.  He entered active duty on 6 December 2004 and served in Iraq from 15 May 2005 to 20 April 2006.  He was assigned to C Company, 1st Battalion, 121st Infantry. 
5.  On 3 July 2005, he was injured during an IED explosion.  He was knocked to the floor of the Bradley Fighting vehicle and sustained neck and shoulder pain.  He was given medications to ease the pain.  He was later given an authorization to report to the 86th Combat Support Hospital in the International (Green) Zone. 

6.  On 24 August 2005, he was awarded the Combat Infantryman Badge for participating in ground operations under hostile fire in Iraq on 2 July 2005.  

7.  In October 2005, he was seen by medical personnel for headaches.  He related his IED encounter on 2 July 2005.  The doctor noted his tension-type headaches and upper back pain (between the shoulder blades). 

8.  On 7 December 2005, he was awarded the Purple Heart for wounds received in action on 2 July 2005.  An excerpt from his military medical record provided by him shows that on 3 July 2005 he received medical treatment for pain in his neck and shoulder due to injuries sustained from an IED blast on 2 July 2005.  

9.  He was honorably REFRAD on 31 May 2006 to the control of his State ARNG by reason of completion of his required active service in accordance with AR 635-200 (Active Duty Enlisted Administrative Separations). 

10.  His records contain the following NCOERs: 

	a.  Annual NCOER covering the rating period December 2004 through November 2005.  His Rater rated his performance as "Excellent" or "Successful" with the exception of Physical Fitness and Military Bearing, he received a rating of "Needs Some Improvement."  He passed the Army Physical Fitness Test (APFT) and met the height and weight standards.  His Senior Rater rated his overall performance and potential as Successful and/or Superior. 

	b.  Annual NCOER covering the rating period 1 December 2005 through 30 November 2006.  His Rater rated his performance as "Excellent" or "Successful."  He passed the APFT and met the height and weight standards.  His Senior Rater rated his overall performance and potential as Successful and/or Superior. 

	c.  Annual NCOER covering the rating period 1 December 2006 through 30 November 2007.  His Rater rated his performance as "Excellent" or "Successful."  He passed the APFT and met the height and weight standards.  His Senior Rater rated his overall performance and potential as Successful and/or Superior.  One of the comments made by his Rater regarding his "Competence (duty proficiency, MOS proficiency) is "qualified first time go on Bradley Table VII" and another comment made by the Senior Rater is "promote ahead of peers and send to the Basic NCO Course."  The Senior Rater also comments that the applicant was being placed in the Inactive National Guard (ING) for medical reasons. 

11.  On 5 February 2007, he was seen at Eisenhower Army Medical Center after he experienced acute respiratory failure.  The Standard Form 600 (Chronological Record of Medical Care) shows the reason for his visit was "fitness for duty after prolonged ventilator course."  He related his admittance to a civilian hospital on 31 July 2006 with acute pancreatitis and a history of heavy alcohol abuse.   Hospital course was complicated by respiratory failure and approximately 3 weeks of ventilator course (the last week with tracheotomy).  His acute illness had resolved.  He was counseled on medications, follow-up, and released to duty without limitations. 

12.  He submitted his VA claim on 7 February 2008.  A rating decision was accomplished on 12 November 2008.   The November 2008 decision may have awarded him a rating for PTSD.  On 6 February 2009, the VA awarded him service-connected disability compensation for various conditions.  He was awarded service-connected disability compensation for right shoulder tendonitis, 10 percent; post-concussion syndrome with mild memory loss (residuals of traumatic TBI), 10 percent; and migraines, 10 percent.  The VA determined his pancreatitis was not related to his military service.  His combined rating was determined to be 60 percent at that time.  

13.  On 11 March 2008, by letter, a VA Neurologist at the TBI Clinic, Atlanta VA Medical Center stated the applicant was under his care at the TBI Clinic and he may work subject to regular follow-up as scheduled in the clinic. 

14.  On 16 May 2008, he was honorably discharged from the ARNG.  His NGB Form 22 shows he was discharged in accordance with paragraph 8-35(a) of NGR 600-200 by reason of ETS.  He completed 8 qualifying years of service toward non-regular retirement. 

15.  On 18 May 2009, the VA reviewed his claim for increased evaluation and rendered a rating decision.  It states his PTSD was increased from 50 percent to 100 percent effective 2 February 2009.  The service-connected conditions for migraines and post-concussion syndrome with mild memory loss (residuals of TBI) were not changed.  Further, he was considered competent with the likelihood his PTSD would improve.

16.  On 2 April 2009, the NGB notified the Joint Force Headquarters, GAARNG, that after a thorough administrative review, the NGB determined that the finding of IN LINE OF DUTY will be overturned to read "NOT IN LINE OF DUTY – DUE TO OWN MISCONDUCT" for PANCREATITIS…injury, disease, or death that results in incapacitation because of abuse of alcohol and other drugs is not in line of duty.  It is due to own misconduct.  By regulation (AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations)), Appendix B, Rule 3, injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in line of duty. 

17.  On 28 October 2009, a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) was constructed for the applicant's IED injury sustained in Iraq on 2 July 2005.  It states the applicant was knocked unconscious during an IED explosion.  He was a gunner on the Bradley Fighting Vehicle.  He was diagnosed with TBI with post-traumatic headaches.  The injury occurred in the line of duty.  Although the appointing authority signed this form on 8 July 2010, neither the investigating officer nor the reviewing authority signed this form.  Additionally, the Final Approving Authority (Chief, NGB) did not sign it on behalf of the Secretary of the Army.  

18.  On 24 June 2010, the Social Security Administration rendered a favorable decision regarding his disability benefits (inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment). 

19.  On 3 March 2011, in response to his petition to this Board for a medical discharge, the Board determined the evidence presented did not demonstrate the existence of a probable error or injustice.  Therefore, the Board denied his request. 

20.  On 27 July 2011, by letter, a licensed clinical psychologist wrote to the Board as part of the applicant's request for reconsideration.  She stated that the applicant had been seen at the VA Medical Center in Greenville, SC beginning in 5 November 2010 for treatment services related to PTSD.  He has been involved in treatment and had been seen for a total of 2 mental health appointments since that date.  His diagnosis includes a history of TBI, and as such, his treatment has been individualized to accommodate memory difficulties which affect treatment progression.  He also periodically reports migraine headaches which are treated through the VA primary care clinic.  He suffers from chronic, severe, PTSD.  It is not unusual for those struggling with PTSD symptoms to use alcohol or drugs as a way to cope with PTSD symptoms, particularly when unsure of what is happening to them. 

21.  On 22 October 2012, in response to his request for reconsideration, the Board again determined the evidence presented did not demonstrate the existence of a probable error or injustice.  Therefore, the Board denied his request. 

22.  On 3 April 2014, the VA printed and provided the applicant or his attorney with their medical records, to include, consults, list of medications, vitals, allergies, lab results, radiology reports, VA discharge summaries, and other post-discharge VA records (between 2009 and 2014).  

23.  On 15 May 2014, the Deputy State Surgeon, GAARNG signed a statement indicating he conducted a search of the applicant's medical records but could not find any hard copy medical records pertaining to the applicant. 

24.  On 28 May 2014, the NCO In Charge for the GAARNG Transition section certified that he conducted a search of the applicant's records and found some records that he attached to this application.  

25.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and AR 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in an MEB
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages: the MEB and the PEB.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of “unfit for duty” is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are retired, depending on the severity of the disability and length of military service.  Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	d.  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 physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

26.  AR 635-40 establishes the Army 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.  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.  Paragraph 3-4 states under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LD criteria to be eligible to receive retirement and severance pay benefits.

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training  (IDT).

	b.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

27.  AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Paragraph 9-12 states that RC Soldiers with nonduty-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 an NDR impairment the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits.

28.  Chapter 3 of AR 40-501 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 individuals in paragraph 3–2.  Paragraph 
3-1 states these medical conditions and physical defects, individually or in combination, are those that (a) significantly limit or interfere with the Soldier’s performance of their duties; (b) may compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service, this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring; (c) may compromise the health or well-being of other Soldiers; and (d) may prejudice the best interests of the Government if the individual were to remain in the military Service.

29.  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.

30.  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 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 VA does not have the 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.  These two government agencies operate under different policies.  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.

31.  NGR 614-1 (Inactive Army National Guard) at paragraph 2-1a states that Soldiers can request transfer to the ING for, among other reasons, temporary medical disqualification, not due to line-of-duty injury, that can be corrected in less than one year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the GAARNG from 17 May 1995 to 16 May 2008.  During this period, he was mobilized and served on active duty from 6 December 2004 to 31 May 2006 and served in Iraq from 15 May 2005 to 20 April 2006.  He was assigned to C Company, 1st Battalion, 121st Infantry. 

2.  Most if not all of the applicant's medical records during his active duty service from 6 December 2004 to 31 May 2006 are not available for review with this case.  The record contains records together with a VA rating decision that shows he was involved in an IED explosion on 3 July 2005 and sustained what appears to be headaches and pain to his shoulders.  He and his counsel argue that he should have been separated or retired by reason of disability.  The evidence is insufficient to show that he should have been medically separated or retired.  

	a.  A key element of the Army PDES is the Soldier's condition at the time of separation.  It is not intended to be a prediction of future medical ailments.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Referral to an MEB is warranted if there is a medical diagnosis of a disabling condition that prevents the Soldier from performing the duties required of their grade and military specialty. 

	b.   The record shows that at the time the applicant was REFRAD on 31 May 2006 there is no evidence to show the applicant had a permanent physical profile, a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade.  His last NCOER shows he performed to standards.  Counsel alleges that the applicant’s pancreatitis was found to be in line of duty on 31 November 2006.  Counsel refers to a DA Form 7574-1 (Military Physician’s Statement of Soldier’s Incapacitation/Fitness for Duty) dated 
30 November 2006.  This form is not a line of duty determination.  It is part of a Soldier’s claim for incapacitation pay.  In any case, on 5 February 2007, this illness had resolved and he was released to duty without limitations.  

	c.  Counsel mentions the absence of a PDHA.  

		(1)  The PDHA (DD Form 2796) is a two-part comprehensive health screening required by all Soldiers and who have deployed in support of any contingency operation to a location outside the Continental United States (OCONUS) without a fixed Medical Treatment Facility (MTF) for a period of 30 days or more.  This screening provides Soldiers with an opportunity to proactively identify health concerns and then – if needed – receive a referral for follow-up treatment for deployment-related health problems that may negatively affect their daily life, family, career, and/or future.  

		(2)  It is unknown if the applicant completed the online self-assessment (the first part of the PDHA) or was seen during the demobilization process when the PDHA is completed at a confidential one-on-one interview with a health care provider.  However, given his successful NCOERs that clearly show he was able to perform his MOS successfully and given the absence of a physical profile or a diagnosis of an in line of duty medical condition that affected his duty performance, it is reasonable to presume that even if his PDHA were to be found, it would not have listed any medical concerns that prevented him from performing the duties required of his grade and military specialty. 

	c.  Additionally, there is no evidence of a DA Form 2173 (Statement of Medical Examination and Duty Status) or a Line of Duty determination for any in line of duty medical condition, physical or behavioral.  Referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  At the time of the applicant's REFRAD, he did not have an in line of duty unfitting condition that prevented him from performing the duties required of his grade and military specialty. Therefore, entry into the PDES was not warranted. 

3.  Following his REFRAD, the applicant continued to serve in the ARNG from May 2006 to May 2008.  Most of the applicant's medical records during this period of service are not available for review with this case.  However, counsel contends the applicant should have been retired by reason of disability.  Counsel's arguments and contentions are also rejected.  The records do not indicate that he had a condition that did not meet medical retention standards or prevented him from performing the duties required of his grade and military specialty.  The VA Reasons for Decision for post-concussive syndrome and migraine headaches do not indicate these conditions failed to meet medical retention standards per AR 40-501.    

	a.  The applicant performed his duties in a satisfactory manner at least between 1 December 2006 and 30 November 2007 as evidenced by his successful NCOER.  He performed his duties to standard.  While it is true his rating officials were not medical personnel, they and his chain of command were in the best position to determine his ability to perform the duties required of his former grade and MOS.  After all, the disability system centers around a Soldier's ability to perform the duties required of his or her MOS and grade.  His last NCOER notes he was being transferred to the ING for medical reasons.  The record does not contain documents related to the transfer. 

	b.  More importantly, the applicant did not have an approved Line of Duty to go before an MEB.  His records contain a one line of duty determination wherein the NGB determined that the finding of In Line of Duty will be overturned to read "Not In Line Of Duty – Due To Own Misconduct" for Pancreatitis.  An injury, disease, or death that results in incapacitation because of abuse of alcohol and other drugs is not in line of duty.    By regulation (AR 600-8-4, Appendix B, Rule 3), injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in line of duty.  His pancreatitis was not in line of duty. 

	c.  His PTSD was neither diagnosed during his military service nor found to have failed retention standards. 

	d.  His TBI is noted by the VA and by selected service medical records.  However, 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 physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of duties will invariably result in a finding of fitness for continued duty.  The applicant in this case continued to perform his duties.  

	e.  His counsel argues that the Board should accept the VA rating decision as a clear evidence of unfitness.  This argument is also rejected.  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  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 may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	f.  Counsel stresses the different paragraphs of AR 40-501 but appears to overlook a critical element which is that the regulation lists the conditions that may render a Soldier unfit, but the basic premise is whether the condition makes a member unfit to perform the duties required of their grade and military specialty.  

4.  The applicant and his counsel submit a lengthy argument regarding alleged disabilities and ratings for conditions that are supported with sufficient evidence.  There does not appear to be an error or an injustice in his case.  In view of the circumstances in this case, there is insufficient evidence to grant the 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.
ABCMR Record of Proceedings (cont)                                         AR20140016672



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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