IN THE CASE OF:  

		BOARD DATE: 21 July 2015

		DOCKET NUMBER:  AR20140021339


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, correction of his records to show he was medically retired instead of separated from the West Virginia Army National Guard (WVARNG) for being medically unfit for retention.

2.  The applicant states he was separated due to not meeting retention standards.  He was never given a physical examination by the WVARNG Surgeon General.  He contends that if he did not meet retention standards he should have been evaluated under the integrated disability evaluation system (IDES).  He argues that his unfit condition was the result of wounds he received from an improvised explosive device (IED) on 11 May 2008 while deployed to Iraq.  He was awarded a Purple Heart for his wounds.

3.  The applicant provides copies of:

* Personnel Records (about 150 pages printed single and double-sided)
* Medical Records (about 475 pages printed single and double-sided
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 15 May 2009
* Department of Veterans Affairs (VA) Rating Decisions, dated in 2009 and 2010 (20 pages)



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.  On 19 July 2007, the applicant, a sergeant/pay grade E-5, was ordered to active duty as a member of the WVARNG in support of Operation Iraqi Freedom (OIF).  He served in Iraq from on or about 3 October 2007 to 7 July 2008.  During this period of deployment, he was injured by an IED and was subsequently awarded a Purple Heart.  He was released from active duty on 5 August 2008 due to completion of required active service and transferred back to his WVARNG unit.

3.  The applicant's service medical records for his period of active duty ending in August 2008 show he complained of headaches and tinnitus.

4.  The applicant underwent a periodic health assessment on 6 September 2008.  There were no significant abnormalities.  He denied having any pain, behavioral health symptoms/concerns, or any other health concerns.  He was positive for recurrent headaches and tinnitus.

5.  A VA Rating Decision, dated 10 February 2009, shows the applicant was medically evaluated for the following medical conditions and he was granted service connection with the indicated disability, or was denied a service connection:

* Mood disorder rated at 50 percent, effective 6 August 2008
* Traumatic brain injury rated at 40 percent, effective 6 August 2008
* Tinnitus rated at 10 percent, effective 6 August 2008
* Hearing loss, left ear, rated at zero percent, effective 6 August 2008
* Hearing loss, right ear, denied
* Thoracolumbar spine strain, denied
* Right ankle injury, denied
* Bilateral heel spurs, denied
6.  A memorandum dated 15 April 2009, from the Office of The Adjutant General, WVARNG, states the applicant was evaluated by the WVARNG State Surgeon who determined that the applicant was not retainable in accordance with Army Regulation 40-501, paragraph 3-33.  The letter directed the applicant to undergo separation procedures.  On 9 May 2009, the applicant acknowledged receipt of the memorandum.  He did not desire to appeal his medical separation and would not submit additional medical documentation on his behalf.

7.  An NGB Form 22, effective 15 May 2009, shows the applicant was honorably separated from the WVARNG and as a Reserve of the Army due to medical unfitness for retention in accordance with Army Regulation 40-501.

8.  A VA Rating Decision dated 11 June 2009,shows the applicant was granted entitlement to individual unemployability, effective 17 March 2009, because he was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.

9.  A VA Rating Decision dated 22 September 2010 shows the applicant was granted:

* Mood disorder rating increase from 50 percent to 100 percent, effective   28 May 2010
* Traumatic brain injury rating increase from 40 percent to 70 percent, effective 28 May 2010
* Service connection for obstructive sleep disorder rated at 50 percent, effective 28 May 2010
* Service connection for headaches rated at 50 percent effective 28 May 2010
* Entitlement to special monthly compensation based on household criteria being met, granted 28 May 2010
* Entitlement to special monthly compensation based on loss of use of a creative organ granted 28 May 2010
* Entitlement to individual unemployability discontinued, effective 28 May 2010

10.  National Guard Regulation 600-200 prescribes the criteria, policies, processes, procedures and responsibilities to classify, assign, utilize, and transfer within and between states, enlisted Soldiers of the ARNG.  Paragraph 
8-35l states Soldiers may be discharged for being medically unfit for retention per Army Regulation 40-501.  Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501.

11.  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.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement or severance pay benefits.  One of the criteria is that the disability must have incurred or been aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  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 his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

12.  Department of Defense (DOD) Directive 1332.18 covers separations or retirement for physical disability.  Paragraph 3.3 states the sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank, or rating because of disease or injury.

13.  DOD Instruction 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for service members with service-incurred or service aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.  Paragraph E2.P2.3 states members of the Ready Reserve with non-duty related impairments and who are otherwise eligible will be referred into the PDES upon the request of the member or when directed under service regulations.  Referral will be solely for a determination of fitness for duty.

14.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.

	a.  Paragraph 3-3 (Disposition) states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by a Medical Evaluation Board (MEB) and will be referred to a Physical Evaluation Board (PEB) as defined in Army Regulation 635-40 with the following caveat:  U.S. Army Reserve or ARNG Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 9 and chapter 10 of this regulation.
	b.  Paragraph 3-4 (General Policy) states possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service.  Physicians are responsible for referring Soldiers with conditions listed below to an MEB.  It is critical that MEB's are complete and reflect all of the Soldier's medical problems and physical limitations.  The PEB will make the determination of fitness or unfitness.  The PEB, under the authority of the U.S. Army Physical Disability Agency, will consider the results of the MEB as well as the requirements of the Soldier's MOS in determining fitness.

15.  Army Regulation 15-185 (ABCMR), paragraph 2-9 provides that the Board 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 applicant contends that his records should be corrected to show he was medically retired instead of separated from the WVARNG for being medically unfit for retention.

2.  In the absence of evidence to the contrary, it is presumed that the applicant was properly discharged from the WVARNG and as a Reserve of the Army due to not meeting medical retention standards.

3.  The determination of unfitness for retention in the ARNG would have provided him four options:  an honorable discharge; transfer to the Retired Reserve (if otherwise qualified); consideration by a non-duty related PEB; or if he had an injury that occurred while on active duty, consideration by an MEB with possible referral to a PEB.

4.  The available evidence shows he incurred an injury while on active duty.  There are service treatment records from the applicant's period of active duty during OIF showing he complained of experiencing headaches and tinnitus.  However, it is not to the extent as mentioned in the VA rating decision dated 
10 February 2009.  It is presumed the applicant met medical retention standards and entered a return to duty status when he returned to the WVARNG.  If he was not able to return to duty then processing through the IDES would/should have been initiated.

5.  The available evidence is insufficient to definitively determine whether the applicant did or did not meet medical retention standards during his period of active service.  The WVARNG determined the applicant did not meet the requirements to warrant referral to the IDES.
6.  An 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, for example, may award ratings because of a medical condition related to service (service-connected) and which affects the individual's civilian employability.

7.  The available evidence is insufficient to determine any error or injustice.  Therefore, the applicant's request should be denied.

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)                                         AR20130000654



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ABCMR Record of Proceedings (cont)                                         AR20140021339



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