IN THE CASE OF: BOARD DATE: 23 August 2012 DOCKET NUMBER: AR20120000384 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 change of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to show he was separated based on medical reasons. 2. The applicant states he was forced to take an administrative discharge while he was trying to obtain a medical discharge due to several injuries and post-traumatic stress disorder (PTSD). He states he was told he had to sign a memorandum requesting his line of duty (LOD) investigation be closed and he would be administratively discharged. He did so in fear he would receive a dishonorable discharge for failing to comply. He believes he should have been processed through a medical review board and physical disability board. He feels he was discriminated against due to an incident that occurred in Iraq involving other Soldiers who were forced out as well. He further states, after returning from Iraq in 2009, he went through almost 2 years of nonsense trying to get the paperwork completed and processed for a medical board and he was twice denied a medical discharge. 3. The applicant provides: * a self-authored statement * several pages of medical documentation and progress notes * numerous emails * NGB Form 22 for the period ending 20 March 2011 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Tennessee Army National Guard (TNARNG) on 6 February 2002. He completed training and he was awarded military occupational specialty 95B (Military Police). He was promoted to sergeant (SGT)/E-5 on 29 September 2005. On 12 November 2008, he was ordered to active duty and he subsequently served in Iraq from 11 January to 31 October 2009. 2. On 7 March 2010, he voluntarily executed a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) that extended his enlistment for 1 year and established his new expiration of term of service (ETS) as 20 March 2011. 3. The complete facts and circumstance of the applicant’s discharge are not available for review; however, records show he was honorably discharged from the ARNG on 20 March 2011, in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-36n, for expiration of active status commitment in the selected Reserve. He completed 9 years, 1 month, and 15 days of total ARNG service. 4. His military medical records are not available for review with this case. However, he submitted the following selected military and civilian medical documents: a. A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 10 October 2009, that shows he was involved in a convoy that received small arms fire in Iraq in October 2009. He was subsequently diagnosed with Adjustment Disorder with Disturbance of Emotions and Adjustment Insomnia. He was given medication and due to his impending redeployment, he was encouraged to seek help for PTSD symptoms in garrison. b. A memorandum issued by the NGB, subject: Line of Duty Determination (Applicant's name, rank, and social security number), dated 17 May 2010, that shows the NGB approved the applicant’s Adjustment Disorder with Disturbance of Emotions and Adjustment Insomnia that occurred during Operation Iraqi Freedom (OIF) as "IN LINE OF DUTY." c. A DA Form 4856 (Developmental Counseling Form), dated 2 June 2010, that shows he was counseled in reference to a Fitness for Duty Evaluation being submitted to the State Medical Review Board to determine his ability for continued service in the TNARNG. The counseling stated the applicant had 33 working days to submit his medical and any other pertinent documentation that was requested in the counseling. The counseling further stated that failure to follow through could lead to an administrative discharge. d. A letter issued by the Department of Veterans Affairs (VA), Tennessee Valley Healthcare System, dated 14 June 2010, wherein the Operation Enduring Freedom (OEF)/OIF Clinical Psychologist stated she diagnosed the applicant with PTSD, Chronic and Major Depressive Disorder, Recurrent, Severe. e. A psychiatry outpatient note, dated 21 June 2010, as part of his Fitness for Duty Evaluation. The psychiatrist stated the applicant suffers from a chronic condition that will likely require long term (possibly lifetime) medication management. The psychiatrist further opined the applicant would likely have difficulty performing military duties due to the severity of his symptoms and the side effects of medication. f. A memorandum from his commander, dated 2 August 2010, stating that due to the applicant's physical impairment he can no longer function and his injury prevents his unit from using him in a productive manner. He recommended the applicant be processed and separated through the U.S. Army disability system. g. Several pages of email from April 2010 through November 2010, pertaining to the appointment of an LOD investigating officer, workflow, and completion. 5. There is no evidence in the applicant's personnel service record nor did he provide any evidence that shows he was discriminated against due to an incident that occurred in Iraq involving other Soldiers who were forced out of the service as well or that he sought assistance from his chain of command for issues involving discrimination. In addition, he provides no evidence nor does his record contain any evidence that he was processed for a medical board and twice denied a medical discharge. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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 office, grade, rank, or rating. It provides for a Medical Evaluation Board (MEB) that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. This regulation also states in: a. Paragraph 2-1 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 reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his/her continued performance of duty (until he/she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his/her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) states that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 2-2b(3) states that when the member's referral for physical evaluation is related to physical examinations given as a part of non-disability retirement processing (voluntary or mandatory) the above evidence must be clear and convincing to overcome the presumption of fitness. In other cases (resignation, reduction in force, release from active duty, administrative separation, discharge, etc.) the presumption of fitness may be overcome by a preponderance of evidence. 7. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 8. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 9. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice on the part of 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, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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's contention that his honorable discharge should be changed to a medical discharge was carefully considered; however, there is insufficient evidence to support his claim. 2. The purpose of the PDES is to maintain an effective and fit military organization with the maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the Army and the Soldier are protected. 3. As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he/she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system. Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation process beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished. 4. The available evidence shows the applicant was involved in a convoy which received small arms fire in Iraq in October 2009. He subsequently was diagnosed with adjustment disorder with disturbance of emotions and adjustment insomnia and received treatment in the field and upon his redeployment. Meanwhile, he continued to perform the duties required of his grade and military specialty. 5. The applicant provided evidence that shows on 2 June 2010, a Fitness for Duty Determination was initiated by his command. This action required the applicant to provide medical documentation within an expected and reasonable timeframe and further advised him that failure to follow through could lead to an administrative discharge. Although he now provides a small sample of treatment records and LOD determinations that show adjustment disorder with disturbance of emotions, adjustment insomnia, PTSD, and right leg sprain and strain, it does not, in and of itself, establish physical unfitness for Department of the Army purposes nor does it establish whether or not the applicant followed through and completed the process. 6. The applicant did not provide evidence to corroborate his claim that he was forced to take an administrative discharge while he was trying to obtain a medical discharge due to his several injuries and PTSD. However, his record contains an NGB Form 22 that shows he was honorably discharged for expiration of active status commitment in the selected Reserve. This document identifies the reason and characterization of his discharge and carries with it a presumption of Government regularity in the discharge process. Absent evidence to the contrary it is presumed that all requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process. 7. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief. 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) AR20120000384 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120000384 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1