IN THE CASE OF:  	  

		BOARD DATE:  2 April 2015	  

		DOCKET NUMBER:  AR20140021617 


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, that he be provided a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) for combat-related injuries received in Iraq on 19 December 2003 while assigned to the 402nd Civil Affairs Battalion.  

2.  The applicant states he needs a DA Form 199 to enroll as a member of the Wounded Warrior Program.  He received combat-related wounds while in convoy in Iraq.  He arrived at Walter Reed Military Medical Center in December 2003 while in a drug-induced coma.  In March 2004, he was on convalescent leave and returned to his unit.  He did not undergo the Medical Review Board.  In 2008, he reported to Martin Army Community Hospital at Fort Benning, GA to be seen for post-traumatic stress disorder (PTSD).  He continued with his PTSD treatment at McConnell Air Force Base, Wichita, KS.  During his discharge physical at Fort Riley, KS in November 2012 and at the Fayetteville, Arkansas Department of Veteran's Affairs (2013) these injuries became apparent in the physical result.

3.  The applicant provides:

* DD Form 2697 (Report of Medical Assessment), dated 16 November 2012
* DD Form 2807-1 (Report of Medical History), dated 16 November 2012
* DD Form 2808 (Report of Medical Examination), dated 16 November 2012
* DD Form 2215E (Reference Audiogram)
* DA Form 3349 (Physical Profile), dated 19 November 2012
* Neurology consult #1802618
* deployment orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 28 February 2013
* VA compensation and pension examinations 
* VA Progress Notes from 16 - 27 June 2014

CONSIDERATION OF EVIDENCE:

1.  He previously served in the Regular Army from 6 August 1983 to 15 April 1990.  On 16 April 1990, he enlisted in the U.S. Army Reserve (USAR).  On 
30 August 1990, he was ordered to active duty in an active duty Guard Reserve status.  He was promoted to master sergeant/pay grade E-8 on 1 March 2009.  

2.  He was deployed to Iraq from 22 February to 21 December 2003.

3.  A DA Form 3349, dated 19 November 2012, shows that under the PULHES he was assigned a physical profile of 2 under P (physical) and 2 under H (hearing).  His medical condition is shown as upper body nerve damage and bilateral normal to moderate hearing loss.  The profiles are shown as permanent. Functional limitations and capabilities are shown as upper body nerve damage due to an improvised explosive device (IED) and no exposure to noise in excess of 85 decibels or weapon firing without the use of properly-fitted hearing protection.  Referral to a medical evaluation board (MEB) was not indicated.

4.  On his DD Form 2697, dated 16 November 2012, the applicant indicated he had been treated for PTSD and hearing loss.  He indicated that due to upper body nerve damage he couldn't lift items.  Due to PTSD he could not drive on highways.

5.  On his DD Form 2807-1, dated 16 November 2012, the examining physician noted the applicant had:

* hearing loss secondary to artillery fire
* traumatic brain injury (TBI) in Iraq in 2003 with some residual effects
* multiple joint problems since his injury in Iraq
* PTSD for which he had treatment

6.  On his DD Form 2808, dated 16 November 2012, the examining physician noted his summary of defects and diagnoses as:

* PTSD
* chronic joint pain
* right side weakness
* heartburn/gastro-esophageal reflux disease (GERD)
* decreased hearing
* TBI
* chest muscle spasms

7.  His DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the rating period 26 August 2011 through 26 September 2012 shows his primary military occupational specialty (MOS) and duty MOS as 92Y (Senior Supply Sergeant) and provides the following information:

	a.  In Part IV - Values/NCO Responsibilities (Rater), the rater placed an "X" in the "Yes" block for all of the seven values.  

	b.  The rater placed an "X" in the "Excellence" block of IVd (Leadership).   

	c.  The rater placed an "X" in the "Success" blocks of IVb (Competence), IVc (Physical Fitness & Military Bearing), IVe (Training), IVf (Responsibility & Accountability).

	d.  In Part Va, the rater placed an "X" in the "Among the Best" block.  

	e.  In Part Ve the senior rater made the following bullet comments:

* promote immediately and send to sergeant major (SGM) academy, 	unlimited potential for continued service and greater responsibility
* exceptional leader, among the best I have seen in over 20 years of 	commissioned service
* select for assignment as a battalion command SGM or Brigade 	operations SGM
* unparalleled dedication to duty, continuously places organizational 	needs above self

8.  On 28 February 2013, the applicant was retired for sufficient service for retirement and placed on the Retired List the following day.  He had completed 29 years and 23 days of active service.

9.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.

	a.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter are referred for disability processing.  

	b.  Chapter 7 (Physical Profiling) provides a system for classifying individuals according to functional abilities and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual was capable of performing, and if reclassification action is warranted.  

		(1)  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, 
U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes; and 
S-psychiatric.  

		(2)  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual received assignments commensurate with his or her functional capacity.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibility, and procedures that apply in determining whether a member is unfit because of physical disability to perform the duties of his office, grade, rank, or rating.

	a.  The mere presence of an impairment does not, in of itself, justify a finding of unfitness because of physical disability.  

	b.  The medical treatment facility commander with the primary care responsibility evaluates those referred to him and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB.  Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

	c.  Paragraph 3-2b(1) states that when a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption may be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit.

	d.  Paragraph 4-19o(1) states the findings and recommendation of a PEB are recorded on the DA Form 199.

DISCUSSION AND CONCLUSIONS:

1.  He was placed on permanent profile for upper body nerve damage and hearing loss.  However, he was not referred to an MEB for these conditions.

2.  His DD Form 2697, DD Form 2807-1, and DD Form 2808 note he suffered from PTSD and he received treatment for this condition.  However, there is no indication that he was unable to perform his duties because of this condition.

3.  His last NCOER clearly shows he was able to perform his prescribed duties in his duty MOS at the time and he was recommended for further promotion.  His continued performance of assigned duties commensurate with his rank or grade until his retirement creates a presumption that he was fit for duty.  The applicant has not provided clear and convincing evidence sufficient to overcome this presumption.

4.  In view of the above, he was not referred to the PDES and a PEB was never convened in his case.  Therefore, there is no basis on which to grant the applicant's request.

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)                                         AR20140021617



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ABCMR Record of Proceedings (cont)                                         AR20140021617



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