IN THE CASE OF:  	  

		BOARD DATE:  4 June 2015	  

		DOCKET NUMBER:  AR20140017649 


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, his medical records be considered by a medical evaluation board (MEB) to determine his eligibility for disability separation or retirement.   

2.  The applicant states:

* due to the permanent profile from Ireland Community Hospital, he should have been afforded the opportunity to undergo an MEB
* instead of an MEB, his unit deployed him to Afghanistan in April 2011 and he sustained more injuries
* he has been diagnosed with post-traumatic stress disorder (PTSD), adjustment disorder, and right knee pain (permanent profile)
* he was unaware of the MEB procedure; he redeployed from Afghanistan on 3 December 2011, took leave in January 2012, started clearing in February 2012, and took transition leave from 10 March 2012 to 12 May 2012 
* he deployed four times during his service; three times to Iraq and one time to Afghanistan 
* he was separated on 12 May 2012 and not seen by any medical professional until 24 July 2014
* he was screened by the Department of Veterans Affairs (VA) and he was diagnosed with PTSD and possible traumatic brain injury (TBI)


3.  The applicant provides:

* letter from the VA regarding his compensation and pension examination
* multiple deployment and/or temporary change of station orders
* DA Form 638 (Recommendation for Award) for award of the Bronze Star Medal
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 349 (Physical Profile)
* post-service VA clinical records
* selected service medical records related to his knee pain  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show after having prior inactive service in the U.S. Army Reserves he enlisted in the Regular Army on 16 January 2002 and he held military occupational specialty 13B (Cannon Crewmember).  

2.  He served through a reenlistment in a variety of assignments and he attained the rank/grade of sergeant (SGT)/E-5.   

3.  He completed multiple combat deployments.  He served in:

* Afghanistan from 12 April 203 to 18 March 2004
* Iraq, from 12 December 2005 to 30 November 2006
* Iraq, from 17 January 2008 to 14 March 2009
* Iraq, from 7 January 2011 to 31 December 2011

4.  On 11 October 2011, he was placed on permanent change of station assignment instructions to Fort Sill, OK, with a reporting date of June 2012.  Because his expiration of service (ETS) date was 12 May 2012 (based on his last reenlistment for 3 years on 13 May 2009), he was required to extend or reenlist in the service for a minimum of 25 months through June 2014. 

5.  On 14 November 2011, after having been counseled and advised of his rights and obligations, he elected to sign a declination of continued service statement (DCSS).  He elected to separate from the Army on his normal ETS date. 

6.  He was honorably discharged from active duty on 12 May 2012 at the expiration of his term of service in accordance with chapter 4 of Army Regulation 635-200 (Personnel Separations) by reason of having completed his required active service.  His DD Form 214 shows he completed 10 years, 3 months, and 26 days of active service.  

7.  During his active service from January 2002 through May 2012, he: 

* was promoted to SGT on 13 June 2003
* successfully attended and completed the Field Artillery Cannon Chief Basic NCO Course from 23 October to 16 November 2007
* received multiple Noncommissioned Officer Evaluation Report (NCOER) covering various rating periods; each report shows: 

* he passed the Army Physical Fitness Test (APFT) and met the height and weight standards 
* rated "Excellence" or "Success" and "Fully Capable" by his raters and "Successful or Superior" by his senior raters

8.  He provided numerous service medical records for review with this case.  He did not provide a copy of his separation physical or similar health assessments that would have occurred during his 10 years of active service.  Complete copies of his service medical records are not available for the Board's review.  Of the documents he provided, these are the pertinent facts:

	a.  DA Form 2173, dated 1 April 2005, temporary through 29 April 2005, for right knee pain with a PULHES ("P" for physical capacity or stamina, "U" for upper extremities, "L" for lower extremities, "H" for hearing and ears, "E" for eyes and "S" for psychiatric) of "1-1-2-1-1-1."  This physical profile assigned the temporary functional limitations of running at own pace and distance for 7 days.  This profile does not indicate the need for an MEB (emphasis added).

   b.  DA Form 2173, dated 22 October 2010, permanent, for right knee chondromalacia, with a PULHES of "1-1-2-1-2-1."  This physical profile did not assign any functional limitations.  His PULHS did not contain a "3," indicating he was able to perform all functional activities that every Soldier must be able to perform.  The only restriction he had is the 2-mile run portion of the APFT.  This profile does not indicate the need for an MEB (emphasis added).

	c.  Selected medical records related to knee, ankle and shoulder pain.  He was seen in 2005 for what appears to be tendinitis in the knee.  He was assessed to have had retropattelar pain syndrome. 

	d.  On 26 March 2011, he was seen by behavioral health as a self-referral for an adjustment disorder.  This is the only record in the medical records he provided that shows he sought behavioral health medical treatment while on active duty.  

	e.  Post-service VA records, dated July 2014.  They consist of administrative documents and initial assessments and referrals.  His claim with the VA is still open. 

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC), Chapter 61, (10 USC 61) and DOD Directive 1332.18 (Separation or Retirement for Physical Disability).  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

	a.  Paragraph 3-1 states the mere presences 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 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 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 because of a physical disability incurred or aggravated in service.

10.  Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.   The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability. 


DISCUSSION AND CONCLUSIONS:

1.  The medical issues listed on the medical documents he provided are knee, ankle and shoulder pain and one behavioral health assessment that shows he had an adjustment disorder.  Nowhere were these conditions found to have failed retention standards or found unfitting.  On the contrary, the profile that is related to knee pain only clearly shows referral to an MEB was not required.  In addition, he continued to perform his assigned duties in an exemplary manor as documented through his NCOERs and he met reenlistment criteria for he signed a DCCS and elected to separate at his expiration of his term of service.  

2.  In order for the applicant to receive disability separation or retirement, there had to have been a finding of unfitness, diagnosed by a competent authority, for a condition or a disability that was incurred or aggravated while he was entitled to basic pay and the disability must not have resulted from his intentional misconduct or willful neglect.  

3.  But even if there had been a disability in the applicant's case, 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 and degree of physical disability present with the requirements of the duties he was reasonably expected to perform because of his grade, specialty, or rating. 

4.  There were medical conditions present.  But, in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, his knee condition was not considered medically disqualifying.  Additionally, the applicant did not provide any documentary evidence supporting his claim for PTSD or TBI from his service medical records.  

5.  There is insufficient evidence to show the applicant suffered from a disabling condition that would have warranted his separation processing through medical channels.  His ultimate discharge from the Regular Army was a voluntary action for personal reasons not for medical reasons.  Therefore, he is not entitled to 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)                                         AR20140017649



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ABCMR Record of Proceedings (cont)                                         AR20140017649



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