IN THE CASE OF:	  

		BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20140017074 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests a medical retirement.

2.  He states he was honorably discharged; however, he believes that due to his remaining service time, he was not sent to a Medical Evaluation Board (MEB).  He adds that this was an injustice and his disabilities, such as post-traumatic stress disorder (PTSD), lower back condition, left knee, and right shoulder should have been sufficient to qualify him for a medical retirement.  He was unable to continue his military career due to his disabilities.  The Department of Veterans Affairs (VA) is caring for his disabilities and he has received a 90 percent (%) disability rating.

3.  He provides:

* Orders 13-119-00032, dated 29 April 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DA Form 3349 (Physical Profile), dated 28 November 2012
* Numerous medical records
* Numerous VA documents
* Excerpts from Army Regulation 40-501 (Standards of Medical Fitness)




CONSIDERATION OF EVIDENCE:

1.  After having prior service in the Regular Army, on 24 February 2006, the applicant enlisted in the Army National Guard (ARNG).  On 3 January 2007, he was ordered to active duty in support of Operation Enduring Freedom and served in Afghanistan from 28 March 2007 to 29 March 2008.  He was honorably released from active duty on 6 May 2008.

2.  The applicant's medical records show he was seen at medical facilities on the following occasions for the following problems:

   a. On 12 March 2007, he received a 48-hour temporary profile for no running, rucksack or wearing individual body armor.  The remarks indicate the profile was based on the applicant's "severe back pain."
   
   b. On 27 February 2008, he was suffering from joint pain, localized in the shoulder (lumbago).  The comments stated that the applicant had low back pain and the physician recommended core strengthening and physical therapy.  He further stated that the applicant had these symptoms for over a year and was due to redeploy.  The applicant felt that wearing protective gear exacerbated his symptoms. 

	c. On 8 March 2008, he was seen for low back pain.  He specifically requested a profile stating that he could not sleep on a cot and needed to sleep on a bed.  He felt his symptoms were made worse by sleeping on a cot.  He was released with a profile for no lifting greater than 20 pounds, no prolonged standing, and he could walk or run at his own pace.

3.  His medical records show in June/July 2008, the applicant filed a disability claim with MetLife for PTSD.  The "Attending Physician Statement" shows he was diagnosed with PTSD and his symptoms were listed as depressed mood, apathy, irritability, poor concentration, exaggerated startle response.  He recommended that the applicant receive biweekly or weekly as needed individual cognitive-behavioral and insight-oriented psychotherapy.  The records also show he was seen on numerous occasions for his "Psychotherapy Sessions." 

4.  A VA Rating Decision, dated 30 December 2008, shows he was awarded an overall disability rating of 30% for mechanical low back pain (20%) and chronic subacromial bursitis, right shoulder(10%).  His claim for PTSD and a positive purified protein derivative (PPD) for tuberculosis was denied.


5.  A DD Form 2808 (Report of Medical Examination), dated 27 February 2009, shows the applicant underwent a medical examination for the purpose of attending Warrant Officer Candidate School (WOCS).  In items 33 (Upper extremities), 34 (Lower extremities (except feet)), and 36 (Spine, other musculoskeletal) of this form, he marked "Normal."  He was determined to be qualified for attendance at WOCS in accordance with Army Regulation 40-501, chapter 2. 

6.  The applicant's NGB Form 22 shows on 17 October 2010, he was honorably discharged from the ARNG to enlist in the U.S. Army Reserve which was accomplished the following day.

7.  A DA Form 2173 (Statement of Medical Examination), dated 9 May 2011, stated that the applicant was exiting a military van and landed on an uneven surface and injured his left knee.

8.  On 26 July 2012, the applicant was accepted into the Army Reserve WO Candidate Program and confirmed as a WO1 on 15 August 2012.  On 2 January 2013, he was ordered to active duty for the purpose of attending WOCS.  On or about 1 March 2013, he was disenrolled from the school.  The exact reason(s) for his disenrollment is/are unknown, but the Total Army Personnel Database (TAPDB) Transaction shows "Incident Report, Fort Rucker."

9.  A VA Rating Decision, dated 2 August 2012, shows he was awarded an overall disability rating of 70% for:

* left lower extremity radiculopathy associated with lumbar spine degenerative disc disease with intervertebral disc syndrome (10%)
* right lower extremity radiculopathy associated with lumbar spine degenerative disc disease with intervertebral disc syndrome (10%)
* lumbar spine degenerative disc disease with intervertebral disc syndrome (40%)

10.  A DA Form 3349, dated 28 November 2012, shows he received a 90-day temporary profile for an "illness/disease" of low back pain with a 26 February 2013 date listed as the "Expected Date of Fully Mission Capable."

11.  The TAPDB-Reserve (TAPDB-R) shows his last physical was 19 November 2012.  It also shows as of January 2013, he had a PULHES of 111111, indicating that he had "no limitations."

12.  His record is void of any evidence to show he had a permanent profile or any type of medical condition that required him to be processed through the Army Physical Disability Evaluation System (PDES) prior to his discharge.

13.  On 29 April 2013, he was honorably discharged.  He was credited with
12 years, 3 months, and 26 days of qualifying service toward a non-regular retirement.  His orders state that he was held beyond his normal discharge date through no fault of the Soldier.

14.  A VA Rating Decision, dated 7 March 2014, shows he was awarded an overall disability rating of 90% for:

* PTSD (70%)
* left knee internal derangement, status post-injury (20%)
* Lumbar spine degenerative disc disease with intervertebral disc syndrome (40%)
* left knee instability, mild (10%)
* left lower extremity radiculopathy associated with lumbar spine degenerative disc disease with intervertebral disc syndrome (10%)
* right lower extremity radiculopathy associated with lumbar spine degenerative disc disease with intervertebral disc syndrome (10%)

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

   a. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.
   
   b. paragraph 3-2 states that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

   c. Paragraph 4-17 states that Physical Evaluation Boards (PEBs) are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

16.  Army Regulation 40-501 governs the medical fitness standards for enlistment, induction, and appointment as well as retention and separation, to include retirement.  Paragraph 3-3d states that physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification.  Physicians should not defer initiating the MEB until the Soldier is being processed for nondisability retirement.  In those cases when it is clear the condition is long standing and has not prevented the Soldier from reaching retirement, then the Soldier meets the standard and an MEB is not required.

17.  Army Regulation 135-100 (Appointment of Commissioned and WO of the Army) prescribes policy and procedures for the appointment of commissioned and WO in the ARNG of the United States and the United States Army Reserve.  Paragraph 1-6g(1) states that the medical requirements for appointment as a WO are prescribed in Army Regulation 40-501 chapter 2.  Chapter 2, provides a list of disqualifying medical conditions.  Those conditions include, in pertinent part:

* Upper extremities, shoulder
* Lower extremities, knee due to disease or injury
* Current mood disorders including, but not limited to, major depression
* History of chronic or recurrent disabling episodes of back pain associated with significant objective findings

18.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that his medical conditions of PTSD, lower back condition, left knee, and right shoulder should have qualified him for a medical retirement.

2.  The evidence of record shows his medical conditions he referenced were cited in his medical records dated 2007 and 2008.  However, on 27 February 2009, he underwent a medical examination for the purpose of attending WOCS in which he marked "Normal" to items 33 (Upper extremities), 34 (Lower extremities (except feet)), and 36 (Spine, other musculoskeletal).  He was subsequently determined qualified to attend WOCS.  On 26 July 2012, he was accepted into the Army Reserve WO Candidate Program and confirmed as a WO1 on 15 August 2012.  Additionally, the records show his last physical was on
19 November 2012.  Therefore, it appears, as evidenced by his PULHES of 111111, that he had no medical limitations at the time he was accepted into the WO Program.

3.  Although the applicant provides a DA Form 2173, dated 28 November 2012, that shows he was on a 90-day temporary profile, the profile indicated that he was expected to be fully mission capable on 26 February 2013, prior to his separation.

4.  There is no evidence and he has failed to provide sufficient evidence to show that an MEB/PEB was warranted.  The limited service treatment records do not suggest that his medical conditions fell below retention standards.  As cited in paragraph 16 of this document, in cases when it is clear the condition is long standing and has not prevented the Soldier from reaching retirement (in this case continuous service and schooling) then the Soldier meets the standard and an MEB is not required.

5.  Further, the applicant has not shown or suggested where the Army was in error regarding his discharge.  Both his DD Form 214 and his NGB Form 22 indicate a presumption of fitness and that there were no physical disabilities present.

6.  The fact that the applicant was awarded a 90% disability rating from the VA is not sufficient evidence to conclude that he should have been medically retired.  The VA is not required by law to determine medical unfitness for further military service.  The VA awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, the 
applicant's medical conditions, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

7.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

8.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment received in service.  Therefore, there is no basis for granting his 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)                                         AR20140017074





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017074



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1