BOARD DATE: 11 June 2015
DOCKET NUMBER: AR20140017088
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests reconsideration of his application for medical retirement.
2. The applicant states
* there is additional information available in his Department of Veterans Affairs (VA) medical records that is available for the Board to obtain
* he basically hid his illness until he started his office job to avoid the stigma of seeking help while in a combat unit
* his primary care provider did not pursue processing him for a medical retirement because he (the doctor) didn't think about it
* he was already in the process of out-processing due to the expiration of his term of service (ETS)
* he chose to leave his position leading combat Soldiers due to his disabilities
* he had a job waiting for him when he left the service and decided not to pursue a medical retirement
* he was not issued a profile because he refused one due to his leadership position; if he had gotten a profile for post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI) he would have been taken out of his position
* his TBI therapist and psychologist said he was not fit to be deployed again but said he was fit for the job he was doing
* his last Noncommissioned Officer Evaluation Report (NCOER) shows he was doing a good job, but he was in a very easy office job which required no physical or mental stress
* he understands that the Army disability rating is to compensate a Soldier for the loss of a military career and if his primary care physician had done his job correctly he would have been medically retired
* he struggles daily with his PTSD
3. The applicant provides a copy of his previous ABCMR Record of Proceedings.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130019583 on 22 July 2014.
2. The applicant provides several arguments that were not fully addressed in the prior ABCMR decisional document which, in effect, warranting reconsideration.
3. The applicant served on active duty in the Regular Army from 15 July 1999 through 1 July 2011 in military occupational specialty 19K (M-1 Armor Crewman).
4. He attained the rank and grade of sergeant first class/E-7 and is shown to have served in Iraq for the periods 28 April 2003 to 14 August 2004 and 1 October 2006 to 20 December 2007.
5. The applicant previously provided a DD Form 2808 (Report of Medical Examination) showing a profile rating of "111111."
6. The applicant sustained a TBI when the vehicle he was in was hit by an improvised explosive device. He reported only momentary loss of awareness and consciousness.
7. As noted in the prior ABCMR review, the applicant's 15 February 2011 NCOER listed him as "among the best" with "unlimited potential." His duty position is shown as armor operations noncommissioned officer in charge for the live firing training area.
8. The applicant's service medical records (previously provided and reviewed) show he was treated for PTSD, TBI, depression, sleep problems, sleep apnea, a concussion without loss of consciousness, dizziness, headaches, shoulder joint pain, bilateral ankle injuries, left shoulder tendonitis, left deltoid muscle strain, a pilar cyst, a cognitive disorder, stomach ulcer, deviated septum, residuals of a cold injury to his hands, low back pain, possible attention deficit hyper activity disorder, and marriage problems. There is no record of either a temporary or permanent physical profile showing any limitations as having been issued.
9. In December 2012, the applicant was awarded a 90 percent disability rating by VA. The diagnoses shown are TBI, PTSD, sleep apnea, migraines, lumber back strain, bilateral cold exposure residuals of the hands, bilateral ankle sprains, left knee problem, left shoulder sprain, sebaceous cysts on the scalp, bilateral foot problems, bilateral hearing loss, and tinnitus.
10. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides the following:
a. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform the duties assigned because of a physical disability incurred or aggravated in service.
b. When a member is being separated by reason other than physical disability, their continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that they were unable to perform their duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
11. Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.
12. Army Regulation 15-185 sets forth procedures for processing requests for correction of military records:
a. Paragraph 2-2 states the ABCMR will decide cases on the evidence of record. It is not an investigative body.
b. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The award of VA compensation does not mandate disability retirement or separation from the Army. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before they can be medically retired or separated.
2. The applicant has not provided and the record does not contain any evidence to validate his contention that his military primary care physician did or did not consider, pursue, or "not think about" processing him for disability retirement.
3. The applicant was treated for a number of conditions while he was in the military. However, at the time of his discharge he was performing his assigned duties in a satisfactory manner as noted on his NCOER. It does not matter what type of duties were associated with the job he is shown to have performed satisfactorily. Therefore, his service is not shown to have been interrupted by any of his physical conditions.
4. Further, by the applicant's own statement, he voluntarily left position in a combat unit and then voluntarily left the service to take a civilian job. He states he declined being retained on active duty for further medical treatment and evaluation and had previously declined a physical profile.
5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x_____ ___x_____ __x___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130019583, dated 22 July 2014.
_______ _ x_______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20140017088
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ABCMR Record of Proceedings (cont) AR20140017088
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