IN THE CASE OF: BOARD DATE: 2 June 2011 DOCKET NUMBER: AR20100023253 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 that his discharge from the Colorado Army National Guard (COARNG) be voided and that he instead be retired by reason of permanent disability. 2. The applicant states that he was unaware that he could have been medically retired or that he could have received treatment prior to being released from active duty (REFRAD) or discharged. He goes on to state that he was discharged from the COARNG after being found to be medically unfit for retention while on medical hold. He also states that he was suffering from a combat-related injury that affected his judgment at the time. He further states that he was also unaware that he had suffered a traumatic brain injury (TBI) from his injury in Iraq and he was later diagnosed by the Department of Veterans Affairs (VA) as having a cognitive disability. He further states that had he known he had a brain injury he would have fought hard to stay in and receive treatment or be retired. 3. The applicant provides: * A copy of his VA Rating Decision * A copy of his Line of Duty determination * Copies of his separation documents * Copies of medical records 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 7 September 2005, while serving in the rank of sergeant (SGT) in the COARNG as a heavy equipment operator, the applicant was ordered to active duty in support of Operation Iraqi Freedom. He was deployed to Iraq on 5 November 2005 and on 4 May 2006 he was involved in a mortar attack that occurred while he was operating a grader. He was awarded the Combat Action Badge (CAB) for that event. 3. Copies of medical records provided by the applicant indicate that on 25 January 2006 the applicant was treated for lower back pain 3 weeks after his vehicle hit an improvised explosive device (IED) 4. On or about 3 August 2006 he drove a tractor trailer into a 4-foot crater in the road at night and suffered a concussion and back trauma. He was treated and returned to duty. 5. He departed Iraq on 25 October 2006 and he was transferred to Fort Carson, CO where he remained until he was honorably REFRAD on 13 December 2006 and he was transferred back to his COARNG unit. 6. On 31 July 2007 the VA granted the applicant a combined 30 percent (%) disability rating percentage for: * post-traumatic stress disorder (PTSD) (10%) * lumbar spine degenerative joint disease (claimed as low back pain) (10%) * tinnitus (10%) 7. On 17 August 2007 the applicant dispatched a memorandum to the Deputy State Surgeon of the Colorado Medical Command declining a Medical Review Board. He indicated that he was receiving 30% disability compensation from the VA and he understood that it would be hard to continue to serve in the COARNG and he desired to be discharged instead of being medically boarded. 8. On 28 August 2007 the COARNG State Surgeon's office dispatched a memorandum to the applicant’s commander directing that the applicant be discharged effective 30 September 2007 for being medically unfit for retention. 9. Accordingly, he was honorably discharged on 30 September 2007 under the provisions of National Guard Regulation 600-200, paragraph 8-35(3), due to being medically unfit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). 10. On 1 December 2008 he was awarded an 80% combined disability rating from the VA for: * Cognitive Disorder, status Post TBI - 40% * PTSD with depressive disorder - 30% * Lumbar Spine Degenerative Joint Disease - 20% * Right Knee Degenerative Joint Disease - 10% * Left Knee Degenerative Joint Disease - 10% 11. In the processing of this case, on 13 April 2011, a staff advisory opinion was obtained from the National Guard Bureau (NGB). The advisory official stated that the applicant declined review by a medical board and requested to be discharged after receiving disability compensation from the VA. He also had not shown that his discharge was in any way in error or unjust and he had failed to show that he was improperly advised or counseled by his chain of command. Officials at the NGB recommended that his request be disapproved. 12. The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He responded to the effect that had he known he had a brain injury he would have fought to stay in or be retired to receive treatment. 13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that 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 the member may reasonably be expected to perform because of his or her office, rank, grade or rating. 14. Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that he should have been medically retired instead of being discharged has been noted and found to lack merit. 2. The applicant was undergoing medical processing when he elected to decline medical review board processing and requested immediate discharge. While he was within his rights to decline medical board processing, that does not constitute an error or injustice on the part of the Army. 3. Accordingly, he has not shown that he was not afforded all of his rights or that he was improperly counseled at the time. The fact that he has decided 4 years later that he may have made an incorrect decision is not sufficient to void a properly issued discharge that was made at his request. 4. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant failed to submit evidence that would satisfy this requirement. 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) AR20100023253 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100023253 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1