IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20150008831 


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.  This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States (U.S.) District Court for the District of Massachusetts for further administrative action based on the previous findings in ABCMR Docket Number AR20100026423, dated 15 September 2011.  

2.  The Court remanded the case to the ABCMR to articulate its decision with respect to the applicant’s separation from active duty in 2006 and his separation from the Massachusetts Army National Guard (MAARNG) in 2007 separately within the findings and discussion.

COUNSEL’S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant’s records be corrected to show he was retired due to physical disability.

2.  Counsel states:

* the applicant was severely injured by an improvised explosive device (IED) in Iraq
* the Army failed to properly examine the applicant during the demobilization process
* the day after he was released from active duty he was found unfit for duty
* he remained unfit for duty until his release form the MAARNG due to injuries he sustained in Iraq
* the Department of Veteran Affairs (VA) determined he met the 30 percent (%) threshold warranting a medical retirement
* the applicant requests retirement be retroactive to 18 October 2007

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 AR20100026423, on 15 September 2011.

2.  The applicant was mobilized from 18 May 2004 through 3 July 2006 as a member of the MAARNG.  His military occupational specialty was 11B (Infantryman).  He served in Egypt from 14 July 2004 through 14 January 2005.  He volunteered to remain on active duty and served in Kuwait/Iraq from      26 June 2005 through 10 June 2006.

3.  On 9 October 2005, the vehicle he was riding in was hit by an IED.  He reported being suddenly thrown against another Soldier injuring his left side.  The medical records prepared at that time show he received a grade II separation of the left acromio-clavicular (AC) (shoulder/collar bone) joint and a bruise to his left arm.  His shoulder was x-rayed, he was given medication for pain, his shoulder was placed in a sling for comfort, and he was placed on light duty for 6 or 8 weeks. 

4.  A treatment record, dated 13 October 2005, indicated he had regained full range of motion with tolerable pain.  His diagnosis was reported as a left shoulder type II AC separation/sprain.  Other than his shoulder injury, the applicant voiced no additional complaints. 

5.  On a post-deployment medical assessment he reported his treatment for the shoulder injury.  He also complained of intermittent foot pain, stiffness in his wrist, and recurring nail fungus.  He marked "Yes" to having developed the following symptoms during his deployment:  swollen, stiff, or painful joints; back pain; skin diseases or rashes; and diarrhea.  He marked "No" indicating no symptoms of headaches, difficulty remembering, or ringing in the ears.  He indicated he had not been bothered by any of the following:  little interest or pleasure in doing things; feeling down, depressed, or hopeless; and thoughts of being better off dead or hurting himself in some way.  He indicated he was not interested in receiving help for any stress, emotional, alcohol, or family problems. 

6.  On 3 July 2006, he was honorably released from active duty under the provisions of chapter 4, Army Regulation 635-200, due to completion of required active service and transferred to his ARNG unit.  

7.  On 19 July 2006, magnetic resonance imaging (MRI) found degenerative changes in his left AC joint.  On 1 August 2006, he requested to be returned to active duty to receive medical care and an evaluation for his service-incurred injuries.  This request was declined.

8.  On 12 March 2007, he underwent surgical intervention on his left AC joint at a Department of Veterans Affairs (VA) hospital.  

9.  The MAARNG found him unfit for duty and awarded him incapacitation pay from 4 July 2006 through 31 August 2007.  

10.  On 19 April 2007, a VA surgeon stated he needed three months of physical therapy before returning to work.  Additionally, on or about this date a VA medical examination documented diagnoses of post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI).

11.  Joint Force Headquarters, Massachusetts National Guard Orders 030-025, dated 30 January 2008, discharged him from the ARNG and as a member of the Reserve of the Army, effective 18 October 2007, due to expiration term of service (ETS).

12.  A DA Form 7554 (Incapacitation Pay Monthly Claim Form) shows his employer verified that he was laid off on 29 October 2008 as a result of his medical condition(s) preventing him from performing his civilian duties as a heavy machine equipment repairman.

13.  The Social Security Administration granted the applicant supplemental security income (SSI) effective August 2009.  The medical basis for this decision is not available.

14.  On 3 April 2011, the MAARNG issued two sets of orders.  One set revoked his earlier ETS discharge, and the second set of orders discharged him from the ARNG and the Reserve of the Army due to being medically unfit for retention.  A National Guard Bureau (NGB) Form 22A (Correction to NGB Form 22) was issued on this date.

15.  An advisory opinion, dated 6 April 2011, was obtained from the NGB.  The Chief, Personnel Policy Division, stated that there was no evidence the applicant was counseled concerning referral to a Mandatory Medical Review Board, a Medical Evaluation Board (MEB) for disability evaluation processing, and referred to a Physical Evaluation Board (PEB) to determine his fitness for consideration for a medical discharge.  This opinion noted his 19 July 2006 MRI of his shoulder, award of incapacitation pay from 4 July 2006 through 31 August 2007, the 19 April 2007 VA positive screening for PTSD and TBI, award of SSI benefits, and the fact that he was laid off from his civilian job due to his medical condition.  The advisory opinion also states that a Soldier should be referred to an MEB in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-14b, if they experience "arthritis due to trauma when surgical treatment fails or is contraindicated and there is functional impairment of the joints which precludes the satisfactory performance of duty." Section 3-30 also provides that Soldiers are entitled to an MEB/PEB if there is a presence of any neurological conditions warranting such a board.

16.  A copy of the advisory opinion was forwarded to the applicant and no response was received from him or his counsel.

17.  He received the following VA disability rating decisions:

     a.  On 19 June 2007,  he was granted a service-connected disability rating of 10% for tinnitus.  His claim for an IED injury and PTSD were deferred.

     b.  On 6 August 2007, he was granted a 100% service-connected disability rating for his post IED injury.  His rating would return to 10% following a period of convalescence.  He was also granted a 10% service-connected disability rating for PTSD.

    c.  On 28 November 2007, his disability rating for PTSD was increased to 30%.  His claims for bilateral plantar fasciitis and left hip pain were deferred.

    d.  On 11 March 2008, he was granted a 20% service-connected disability rating for left hip pain and a 10% service-connected disability rating for bilateral plantar fasciitis.   

     e.  On 27 March 2009, his service-connected disability rating for PTSD was increased to 50%.

     f.  On 21 April 2011, he was granted a service-connected disability rating of     30% for migraine headaches (as a residual of mild TBI).

     g.  On 13 December 2013, his service-connected disability rating for PTSD was continued.  He was determined to be eligible for Dependent Educational Assistance.
18.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of a disability incurred while entitled to basic pay.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendation required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

20.  Department of Defense Instruction 1332.18 (Disability Evaluation System) states the Secretary of the Military Department will refer Service members who meet the criteria for disability evaluation regardless of eligibility for disability compensation.  Medical authorities will refer eligible Service members into the PDES who have one or more medical conditions that may, individually or collectively, prevent the Service member from reasonably performing the duties of their office grade, rank or rating including those duties remaining on a Reserve obligation for more than 1 year after diagnosis.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for disability retirement was carefully considered.

2.  The evidence of record shows he was injured by an IED blast while serving in Iraq.  His diagnosis was reported as a left shoulder type II AC separation/sprain. 
 
3.  A treatment record, dated 13 October 2005, indicated he had regained full range of motion with tolerable pain.  Other than his shoulder injury, the applicant voiced no additional complaints. 

4.  On 3 July 2006, he was honorably released from active duty due to completion of required active service and transferred to his ARNG unit.  There is no evidence of error in the decision to release him from active duty due to his completion of required active service.  

5.  On 19 July 2006, an MRI found degenerative changes in his left AC joint.  On   1 August 2006, he requested to be returned to active duty to receive medical care and an evaluation for his service-incurred injuries.  This request was denied and there is no evidence that shows his medical condition was referred to or evaluated by an MEB.

6.  It appears that the MAARNG determined he was medically unfit for duty and awarded him incapacitation pay retroactive to the day after his release from active duty and it continued for over a year.  On 3 April 2011, he was discharged from the ARNG and the Reserve of the Army due to being medically unfit for retention.  It appears that any medical unfitness for retention would have been the result of the injuries he received while on active duty, and he should have been referred into the PDES and considered by an MEB.  Merely amending his discharge orders to show he was unfit for retention without processing him through the PDES is not sufficient.   

7.  Prior to his release from the MAARNG, he was granted a 50% service-connected disability rating for PTSD.

8.  His record indicates he suffered from a medical condition that supported his processing through the PDES prior to his separation from the MAARNG.  In addition to his shoulder injury, other medical conditions incurred in the line of duty should also be evaluated.  

9.  In view of the foregoing, there is insufficient evidence to grant the applicant's request for disability retirement from active duty; however, as a matter of justice he should be afforded processing through the PDES as a Reserve Component member under the applicable law and regulations.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____X___  ___x____  ___x____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by the Office of The Surgeon General contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation and, if appropriate, an MEB through the use of invitational travel orders to the applicant.

	a.  In the event a PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a PEB.

	b.  If warranted, all required reviews and approvals will be made subsequent to completion of the PEB.

	c.  If a determination is made that he should have been separated through the PDES, these Proceedings serve as the authority to:
      
* void his discharge from the MAARNG
* issue the appropriate disability separation or retirement order effective 3 April 2011
* if required by law, pay him all back pay less any entitlements already received

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to retiring him for permanent disability without benefit of the process described above.




      _______ _   _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)                                         AR20150008831





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