IN THE CASE OF:	  
		BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140004273 


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 correction of his record to show he was medically retired instead of honorably discharged from active duty.

2.  The applicant states:

	a.  he was injured by a vehicle-borne improvised explosive device (VBIED) blast and hand grenades and he shot and killed six enemy fighters in Afghanistan on 1 June 2012;

   b.  he was unable to obtain proper medical treatment in Afghanistan and unable to receive immediate medical treatment at Fort Bragg, NC because no appointments were available at the time;
   
   c.  he was initially judged medically unfit for service for post-traumatic stress disorder (PTSD) but because he had not received 12 months of continuous care prior to his expiration term of service (ETS), that determination was redacted; and
   
   d.  the Department of Veteran Affairs (VA) rated him 90 percent (%) disabled even though he did not receive a medical retirement.

3.  The applicant provides:

* VA letter, dated 7 December 2013
* VA Rating Decision, dated 2 December 2013
* DD Forms 3349 (Physical Profile) dated 26 February 2013 and 22 April 2013
* Department of Neurosurgery, Walter Reed National Military Medical Center, Memorandum
* DA Form 2166-8 (NCO Evaluation Report) dated through 28 June 2012
* two DA Forms 2823 (Sworn Statement)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Official Military Personnel File (OMPF) extracts (5 pages)
* numerous medical and dental record extracts

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 April 2004.  He was trained in and awarded military occupational specialty 15H (Aircraft Pneudraulics Repairer).

2.  His Enlisted Record Brief (ERB) shows he was promoted to the rank of staff sergeant/E-6 on 1 June 2011, his highest rank held.  It also shows his last oversea assignment was served in Afghanistan from 25 September 2011 through 26 August 2012.

3.  His OMPF is void a finding of unfitness by the appropriate authority for any disabling condition at any time during his military service.  It is also is void of any evidence showing he ever suffered a medical or mental condition warranting his processing through the Army Physical Disability Evaluation System (APDES).

4.  On 22 June 2013, the applicant was honorably discharged from active duty by reason of completion of required active service under the provisions of Army Regulation 635-200, Chapter 4.  He completed 9 years, 2 months, and 19 days of creditable active duty service.

5.  He provides numerous medical documents detailing his medical history and treatment during his military service.  It includes Standard Forms 600 (Chronological Record of Medical Care) issued on the following dates as indicated:

   a.  2 June 2012 – He was seen at the Aviation Clinic for "sleep habits (new)." He reported "he has had an issue sleeping since the attack on forward operating base (FOB) Salerno the day before."  All physical and psychiatric findings were normal.  He was released without limitations, and informed to follow up as needed or if any issues or concerns worsened.
   
   
b.  21 September 2012 – He was seen at the 82nd Combat Aviation Brigade, Soldier Readiness Program Clinic for a military services physical (post-deployment examination).  He was released without limitations and informed to follow up as needed.
   
   c.  2 November 2012 - He received his initial post-deployment evaluation at the Concussion Care Clinic because he had been on leave until this time.  He was released without limitation and informed to follow up in three weeks.  He reported that, on 1 June 2012, a VBIED blew up a dump truck 300 feet away.  He was pushed to the ground and when he stood up he was dazed.  A rocket propelled grenade subsequently exploded thirty feet away from him and killed the person next to him.  He got up and started moving towards those firing and killed six of them.
   
   d.  28 November and 19 December 2012 – He was seen at the Concussion Care Clinic for a follow-up traumatic brain injury (TBI) case review.  Following these evaluations, he was released without limitations.

6.  He also provides a VA rating dated 2 December 2013 which shows he was granted a 90% combined service connected disability rating.

7.  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.  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.

8.  Paragraph 2-2b of the same regulation provides guidance on presumptions of fitness and states that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness that can be overcome only by clear and convincing evidence that he was unable to perform his duties.

9.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of any VA rating does not establish error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian 
employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same 
impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically retired from active duty.  Although he provides medical evidence of the treatment he received for various conditions while on active duty, his conditions were not determined to be disabling or to have ever rendered him unfit for further service.  In fact, subsequent to the medical treatment he received, he was returned to duty without limitations.

2.  The evidence of record confirms the applicant was discharged by reason of completion of required service as evidenced on his DD Form 214.  By regulation, a member's continued performance of duty creates a presumption of fitness that can only be overcome by clear and convincing evidence showing he was unable to perform his duties.  Furthermore, a separation or retirement based on a physical disability requires processing through the PDES.

3.  Absent any evidence to show the applicant had a medical condition that rendered him incapable of reasonably performing the duties of his office, grade, rank, or rating during his active duty service, there is an insufficient evidentiary basis to grant the requested relief in this case.

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)                                         AR20140004273





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ABCMR Record of Proceedings (cont)                                         AR20140004273



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