IN THE CASE OF: BOARD DATE: 23 June 2015 DOCKET NUMBER: AR20150001291 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 award of the Purple Heart for a traumatic brain injury (TBI) he sustained while serving on active duty and correction of his discharge from the U.S. Army Reserve (USAR) for unsatisfactory participation to show he was discharged due to medical unfitness. 2. The applicant states: * in 2011, the Department of Defense declared the requirements to receive a Purple Heart for concussion, loss of consciousness, memory loss or other symptoms of mild TBI included requiring treatment from a medical officer, even if one was not available at the time * he sustained a TBI in three separate instances while deployed to Iraq * the first instance of TBI resulted from being hit on the head by a piece of wall after tanks that led an assault knocked the wall over * the second TBI resulted from falling out of a truck and striking his head on the ground while on a mission and receiving enemy fire * the third instance of TBI followed receiving an electric shock while clearing a pump station * he did not receive medical treatment following the TBIs, but he did require medical treatment and attention * he has service-connected disability for TBI from the Department of Veterans Affairs (VA) and continues to receive treatment from the VA for the TBIs * he provided VA outpatient treatment records, including his rating decision showing service connection for TBI * within a year of his USAR enlistment, he was limited in his ability to get promoted or reenlist pending the outcome of a medical review board which was eventually completed and found him unfit for duty * he remained in the USAR for another 3 years and was released in 2009 with a general discharge under honorable conditions * he experienced an increase in depression and continued medical problems with his back and asthma while serving in the USAR * he should have received an honorable discharge due to his medical conditions since the evidence shows his medical conditions prevented him from continued service 3. The applicant provides: * email correspondence with an Army Review Boards Agency official * Headquarters, 311th Sustainment Command (Expeditionary) Rear, Orders 09-068-00013, dated 9 March 2009 * U.S. Army Human Resources Command (HRC) Chronological Statement of Retirement Points, dated 18 February 2015 * VA outpatient treatment 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. The applicant enlisted in the Regular Army on 6 August 1998. 3. His records indicate he deployed to Egypt from 21 January 2001 through 20 June 2001 and he deployed to Kuwait/Iraq from 22 August 2003 through 15 January 2004. 4. There is no evidence in his military service records supporting his contention that he suffered multiple TBIs resulting from injuries sustained while deployed to Iraq. The applicant's complete military service treatment records are not available for review. What appears to be an abbreviated document listing dates of treatment provided in a military treatment facility, outpatient prescriptions, and laboratory reports spanning part of his active duty service and carrying over into his USAR service is included in his VA medical records. The available records do not contain evidence indicating he sustained or was treated for a documented TBI while he was serving on active duty. 5. On 24 September 2004, he was honorably released from active duty due to completion of his required active service and transferred to the USAR. He was credited with 6 years, 1 month, and 19 days of net active service. 6. His records contain a DA Form 3349 (Physical Profile) signed by the profiling doctor on 20 September 2005, detailing the following: * back pain with radiculopathy (radiating pain in the lower back and legs) * depression * exercise-induced asthma * permanent physical profile needing medical evaluation board (MEB)/physical evaluation board (PEB) 7. A memorandum from HRC, dated 18 April 2006, notified the applicant that he failed to comply with a request for additional information issued on 29 November 2005 concerning the diagnoses of back pain with radiculopathy, depression, and asthma. Based on information obtained from his physical examination, he did not meet medical retention standards in accordance with Army Regulation  40-501 (Standards of Medical Fitness), paragraph 3-27a(2)(c), for asthma. A temporary disqualification code was placed in his medical file based on the determination by the HRC Physical Review Board. 8. There is no further documentation in the applicant's records pertaining to his medical disqualification for retention. There is no evidence he complied with HRC's request for the additional information needed in order to proceed with potential separation from the USAR for not meeting medical retention standards. 9. Headquarters, 311th Sustainment Command (Expeditionary) Rear, Orders 09-068-00013, dated 9 March 2009, discharged the applicant from the USAR under honorable conditions for unsatisfactory participation effective 8 April 2009 under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), chapter 13. 10. The applicant provided VA medical documents showing he has received an assessment and treatment on an outpatient basis within the VA medical system for multiple conditions. His VA Rating Decision document is not in his available records and has not been provided by the applicant, but a records entry pertaining to a 4 December 2014 speech pathology consultation shows the applicant receives service connection for rated disabilities at 80 percent for the following: * traumatic brain disease * tinnitus * flat foot condition * tendon inflammation * migraine headaches * tendon inflammation * lumbosacral or cervical strain * hiatal hernia * post-traumatic stress disorder * knee condition 11. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 12. HRC Military Personnel Message Number 11-125, dated 29 April 2011, stated the Secretary of the Army approved Army Directive 2011-07 (Awarding the Purple Heart). The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness). HRC verified award of the Purple Heart for a TBI injury is retroactive only to 11 September 2001. 13. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD). a. Chapter 3 provides standards for medical retention. It lists the conditions of asthma (if chronic and resulting in permanent physical profile, repetitive hospitalizations, inability to run outdoors, and/or prevents the Soldier from wearing a protective mask), adjustment disorder, and miscellaneous conditions that result in interference with satisfactory performance of duty as substantiated by the individual's commander as causes for referral to an MEB. It states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB, with the following caveats: USAR Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 9. b. Chapter 9 states Soldiers pending separation from the USAR for failing to meet medical retention standards found not in the line of duty are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits. 14. 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. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 15. The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 16. 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, 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 PDES 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 * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred into the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB * receive a permanent physical profile rating of 3 or 4 and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, HRC 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 or 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 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 retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of 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. 17. 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. 18. 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 a higher VA rating does not establish 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 VA does not have the 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. These two government agencies operate under different policies. 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. 19. Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Separations), in effect at the time, established policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components. a. Chapter 12 provided guidance for separation of Soldiers who were medically unfit for retention. It stated discharge would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness under the provisions of Army Regulation 40-501, unless the Soldier requested and was: (1) granted a waiver under Army Regulation 40-501, as applicable; (2) determined fit for duty under a non-duty related PEB fitness determination under the provisions of Army Regulation 635-40; or (3) eligible for transfer to the Retired Reserve under the provisions of Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers). b. Chapter 13 states a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant as prescribed by Army Regulation 135-91 (Army National Guard and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), chapter 4. 20. Army Regulation 135-91 defines Army National Guard and USAR service obligations and participation requirements to include excused and unexcused absences and the enforcement procedures regarding unsatisfactory participation. Chapter 4 states Soldiers will be charged with unsatisfactory participation when without proper authority they accrue a total of nine or more unexcused absences from scheduled inactive duty training in any 1-year period. 21. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for award of the Purple Heart for a TBI sustained while serving on active duty and correction of his discharge from the USAR for unsatisfactory participation to show discharge due to medical unfitness was carefully considered. 2. While regulatory guidance allows for awarding the Purple Heart for a TBI sustained as a result of hostile action, substantiating evidence must be provided to verify the TBI was the result of hostile action, required treatment by medical personnel, and the medical treatment was made a matter of official record. There is no evidence in the applicant's official military or medical service records corroborating his assertion to have suffered multiple TBIs while deployed to Iraq. Subsequent treatment for TBI by the VA years later is not substantiating proof that the TBI resulted from hostile action or constitutes grounds for award of the Purple Heart. Therefore, there is no basis for granting the applicant's request for the Purple Heart. 3. The applicant's USAR records contain documentation showing he was found not to meet the medical standards for retention in the USAR in accordance with Army Regulation 40-501, paragraph 3-27a(2)(c), for asthma. Documentation also shows that after his notification of this finding, he was found non-compliant with the HRC Physical Review Board's request for further documentation in order to proceed with either retention in the USAR should a waiver be granted or eventual separation due to failure to meet medical retention standards. 4. Without evidence to the contrary, the presumption of regularity is made with regard to the applicant's discharge. It is presumed that his separation due to not meeting medical retention standards was placed on hold/suspended while he was afforded the opportunity to provide the necessary documentation to proceed, which he appears to have failed to do. There is no evidence of record and the applicant has not provided any which would refute that he accrued unexcused absences from scheduled inactive duty training resulting in proper separation from the USAR for unsatisfactory participation. 5. The fact that the VA granted him a service-connected disability rating for TBI and other ailments after his discharge from active duty does not prove an error on the part of the Army or the USAR. A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the USAR. The VA awards ratings because a medical condition is "service-connected" and affects the individual's civilian employability. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 6. Based on the foregoing information, there is no basis with which to grant the 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 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) AR20150001291 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001291 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1