ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 August 2021 DOCKET NUMBER: AR20210007711 APPLICANT REQUESTS: in effect, award of the Purple Heart and a change in his narrative reason for separation from attending civilian school to disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) FACTS: 1.The applicant states he sustained a Traumatic Brain Injury (TBI) during his tour toIraq and that due to this incident he should have received the award of the Purple Heartand a medical discharge. He states that he had to do the educational early releasebecause his contract was going to be renewed and he was not in the right mind at thetime. The applicant states at the time he was suicidal and afraid for his life. 2.The Board will not consider the applicant's request for award to the Purple Heart.The applicant's request is premature, as there is no evidence that he first applied to theArmy Human Resources Command (AHRC) for their action. The applicant may reapplyto this Board if AHRC denied his request; his application to the Board must include acopy of the denial letter from AHRC. a.Army Regulation 15-185 (ABCMR), the regulation under which this Boardoperates, stipulates that the Board will not consider an application until the applicant has exhausted all available administrative remedies to correct the alleged error or injustice. The applicant must first submit a request to the AHRC Awards and Decorations Branch (ADB) in letter format to: Commander, Army Human Resources Command, ATTN: AHRC-PDP-A (ADB), 1600 Spearhead Division Ave, Fort Knox, KY 40122-5408. b.The portion of the applicant's request pertaining to award of the Purple Heart willnot be addressed in this record of proceedings. 3.The applicant enlisted into the Regular Army on 30 June 2005. After initial training,he was awarded military occupational specialty 19D (Cavalry Scout) and subsequentlyassigned to his first duty station; 4th Armed Division, Schweinfurt, Germany. The applicant deployed in support of Operation Iraqi Freedom on 26 August 2006 through 20 November 2007. 4.Permanent Orders 045-014, dated 14 February 2007, awards the applicant with theCombat Action Badge, for actively engaging or being engaged by the enemy on31 January 2007. 5.The applicant’s record contains a DA Form 4187 (Personnel Action), dated 20 May2008, which contains the following information: a.A request for an early separation to further his education in accordance withArmy Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-16 (Early separation to further education). b.The applicant’s expiration of term of service (ETS) was 2 November 2008 and herequested his ETS be changed to 6 September 2008. c.The applicant’s terminal leave was scheduled for 26 July 2008 through6 September 2008. d.The applicant did not sign the action. e.The applicant’s immediate and intermediate commander both recommendedapproval for this action. 6.The applicant’s record contains a letter from Colorado School of Trades(Gunsmithing and Farrier Science Program), dated 29 May 2008, which shows theapplicant was accepted into the school and he was scheduled to begin training as a full-time student on 8 September 2008 with an anticipated graduation date of 9 November2009. 7.A memorandum, issued by the Brigade Commander, 172d Infantry Brigade,Schweinfurt, Germany, on 25 June 2008, Subject: Separation under AR 635-200,Paragraph 5-16 Request for Early Separation to Further Education, includes thefollowing information. a.The Brigade Commander recommended that the applicant be separated from theUnited States Army prior to the expiration of his current term of service, under the provisions of AR 635-200, paragraph 5-16, for early separation to further education. b.The Brigade Commander recommended that if the applicant was separated thatthe applicant’s service be characterized as honorable. 8.The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty)shows he was discharged under the provisions of AR 635-200, paragraph 5-16, byreason to attend civilian school, on 6 September 2008, and he received an honorablecharacter of service. He completed 3 years, 2 months, and 7 days of net active service. 9.A thorough review of the applicant’s military record failed to reveal additionaldocuments that indicate the applicant sustained injuries while deployed in support ofOperation Iraqi Freedom. 10.MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a.The applicant is applying to the ABCMR requesting a Purple Heart and, inessence, a referral to the Disability Evaluation System (DES). His states: “I should have been medically discharge as I suffered TBI during my tour in Iraq and I should have received a purple heart.” b.The Record of Proceedings details the applicant’s military service and thecircumstances of the case. His DD 214 shows he entered the regular Army on 30 June 2005 and was honorably discharged on 6 September 2008 under paragraph 5-16 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (6 June 2005):Early separation to further education. It shows he served in Iraq from 26 August 2006thru 20 November 2007. c.There was no medical documentation submitted with the application. Review ofhis records in AHLTA show he was seen in theater on 4 February 2007 for “examination follow-up improvised explosive device 10 minutes ago. Explosion on right front side, patient was driver. No loss of consciousness, No complaints of pain.” The examination was normal and the applicant was returned to full duty. There are no TBI related encounters among the twelve he had from 4 February 2007 until his voluntary discharge. d.Paragraph 2-8 of AR 600-8-22, Military Awards (11 December 2006), lists thecriteria for the awarding of the Purple Heart. Paragraph 2b lists the circumstances under which the injury is eligible for a Purple Heart (enemy action, friendly fire, peace keeping, etc.). Paragraph 2e states the wound and medical care requirements for the award: “A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above. A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record. e.There is no evidence of any qualify wound(s). f.There is no evidence the applicant had residuals of a TBI or any medical conditionwhich would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. g.Review of his records in JLV shows he has been awarded multiple VA serviceconnected disabilities. However, the DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions incurred during or were permanently aggravated by their military service; or for compensating conditions which did not contribute to career termination. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. h.It is the opinion of the ARBA Medical Advisor that neither the awarding of a PurpleHeart nor a referral of his case to the DES is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board concurred with the medical advising official’s findings. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows the applicant did not meet medical retention standards during his period of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. Microsoft Office Signature Line... 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. REFERENCES: 1. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. 2. AR 635-200, paragraph 5-16 states soldiers may be discharged or released from active duty for the convenience of the Government, up to 90 days before the expiration of term of service, in order to attend a specific term college, university, vocational school, or technical school. a. To qualify for early separation, eligible soldiers must— (1) Not be mission essential to their assigned organizations, as determined by commanders concerned; (2) Clearly establish that the specific school term for which they seek early separation is academically the most opportune time for them to begin or resume their education, and that delay of school enrollment until normal ETS would cause undue personal hardship; (3) Provide a statement from an appropriate school official (for example, a registrar or director of admissions) indicating acceptance for enrollment (without qualification or in a probationary status) in a full-time resident course of instruction. The statement must also reflect that the latest acceptable registration date for the school term falls within the 90–day period preceding the soldier’s ETS; and (4) Show that they are able to pay, or have already paid, school entry fees. b. The college or university must offer courses of instruction leading to an associate, baccalaureate, or higher degree and must be approved by the Department of Veterans’ Affairs. The vocational or technical school must offer a course of instruction of no less than 3 months’ duration and must be approved by the Department of Veterans’ Affairs. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and to provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board; when they receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board; when they are command-referred for a fitness-for-duty medical examination; and/or when are referred by the Commander, Human Resources Command. c. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of “unfit for duty” is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. d. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. AR 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. AR 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 or her office, grade, rank, or rating. It provides that an MEB 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. 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 2-1 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 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) provides 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 or her continued performance of duty (until he or 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 or 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) provides 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 4-10 provides that MEBs are 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 qualification for retention based on criteria in Army Regulation 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. 6. 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 percent. 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 of less than 30 percent. 7. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered 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 may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. //NOTHING FOLLOWS//