IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150008045 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150008045 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. IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150008045 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 a medical discharge. 2. The applicant states: a. All of his injuries were sustained during combat deployments. He joined the Army in July 2000, deployed to Afghanistan in September 2001, and deployed to Iraq in 2003 where he was injured. He was hit by a mortar blast within 30 feet and knocked unconscious for 60 to 90 seconds. He was dragged out of the kill zone and someone used smelling salts to wake him. He sustained headaches and ringing in the ears for days. Post-traumatic stress disorder occurred while he was on foot patrol when a suicide bomber blew himself up in the middle of the market. His platoon had no casualties, but they were the first to render aid to the local nationals. b. Later that year a child between 9-12 years old handed him a hand grenade that was already live. He threw the grenade as far as he could, but he still felt the blast. The grenade blew up within approximately 25 feet. After that he was stationed at Camp Taji where it was later discovered the old munitions were actually chemical weapons. They destroyed the munitions that were found; however, before the destruction they had to handle the munitions and transport them to the detonation site about five miles away. They never received any personal protective equipment or were even warned the weapons may be contaminated. On a daily basis they were exposed to smoke from burn pits. c. He also sustained a knee injury diagnosed as an arthritis injury which occurred during a complex attack that included him being driven over an improvised explosive device (IED). He was given crutches for the remainder of the deployment. d. In 2005 his unit was again deployed to Iraq to escort convoys and provide protection from ambushes and insurgents. He was in a vehicle when all the [other] occupants were killed by an IED blast. While deployed they engaged insurgents multiple times and ran over countless IEDs. Again they were exposed to smoke from burn pits and other hazardous items. He was sent to a hospital in Germany for unexplained nausea and vomiting. He incurred nearly daily headaches which at times were paralyzing to the extent that he would faint and with accompanying dizziness. He was never diagnosed with these ailments that have severely impacted his life due to the severity of the nausea and vomiting. When the episodes occur he is in tears from the pain. e. The Army no longer allowed him to operate any type of vehicle and he was reassigned to a new duty station. At his duty station he was supposed to begin an examination process again about his condition with new doctors and a new command. His life is now limited to the extent that he can no longer control his bowels at times. He suffers from high anxiety and fear in a crowded area. He also has flashbacks of grenades being thrown from bridges and the site of trash on the side of a road reminds him of the IEDs and the fears of an explosion. f. There are nights when he suffers from insomnia due to the flashbacks about his deployment time. He also contracted hepatitis C while deployed after receiving orders to set up and engage the enemy from the city sewers of Baghdad. He can also see every man, woman, and child he killed in his dreams and flashbacks. Most of his engagements were with a rifle; even though the target was hundreds of feet away it still seemed that they were only two feet away. g. At his last duty station, Fort Irwin, CA, he was never really treated for his symptoms. He was told someone would get back to him. He was then blindsided and told he would appear before a Medical Evaluation Board (MEB) to assess his usefulness to the Army. He pleaded to the board to allow him to finish his career in the Army to no avail. After 8 years and 6 months of service he was told to start the clearing process and exit the military. He was issued severance pay of $30,000.00 and an honorable discharge. h. The U.S. Government failed him and his family by not affording him the opportunity to be diagnosed and receive a disability rating that entitled him to retirement. At his release he was only assigned a 10 percent (%) disability rating for asthma. After his discharge he went to the Department of Veterans Affairs (VA) where he had to fight for an increased rating of 30%. It was not until 2013 that he received an 80% rating. 3. The applicant provides copies of: * Change of Military Occupational Specialty (MOS) memorandum * DA Form 3349 (Physical Profile) * Referral to the Physical Disability Evaluation System (PDES) (MEB/Physical Evaluation Board (PEB)) memorandum * Standard Form (SF) 502 (Medical Record – Narrative Summary (Clinical Resume)) * DA Form 3947 (MEB Proceedings) * DA Form 199 (PEB Proceedings) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 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 the cases 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. 2. The applicant enlisted in the Regular Army on 7 July 2000 and he held MOS 88M (motor transport operator). He served in Iraq from 9 January 2003 through 15 January 2004 and from 8 December 2004 through 6 December 2005. 3. His records contain and he provided copies of: a. A Change of MOS memorandum, dated 5 January 2007, in which he was advised to change his MOS due to his medical condition of severe motion sickness with recurrent vomiting episodes during driving and advised of a possible MEB determination. b. A DA Form 3349, dated 11 November 2007, showing he was assigned a permanent profile of "2 1 2 1 1 1" for right knee pain, status post-surgery and motion sickness. The form commented he could ride in military/privately owned vehicles (POV), but could not drive either a military vehicle or a POV. c. A Referral to PDES (MEB/PEB) memorandum, dated 8 August 2008, in which the applicant and his command were advised an MOS/Medical Retention Board had evaluated his abilities to perform the physical requirements of his primary MOS (PMOS) and determined the limitations imposed on his profile were so prohibitive they precluded retraining and reclassification into any PMOS in which the Army had a requirement. An MEB was to be scheduled. d. An SF 502 showing he underwent an MEB examination on 19 August 2008, was diagnosed with recurrent nausea and vomiting of uncertain etiology, and was referred to an MEB. e. A DA Form 3947 showing an MEB convened on 20 August 2008 and considered his medical condition of recurrent nausea and vomiting of uncertain etiology and referred him to a PEB. f. A DA Form 199 showing an informal PEB convened on 19 September 2008. After consideration of clinical records, laboratory findings, x-rays, and physical examinations, the PEB found the applicant was diagnosed with chronic nausea and vomiting rated at 10%. The PEB found this condition unfitting due to his inability to perform duty as an 88M. The PEB recommended his separation with severance pay. His record is void of his concurrence, non-concurrence, or waiver/request for a formal board. The PEB was approved on the same date. 4. He was honorably discharged on 23 December 2008 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of combat-related disability with severance pay. He was credited with completing 8 years, 5 months, and 17 days of active service. Item 18 (Remarks) of his DD Form 214 shows he was awarded $41,000.00 in severance pay. 5. In an advisory opinion, dated 2 September 2015, the U.S. Army Physical Disability Agency (USAPDA) advisory official reiterated the applicant's request and recommended its denial. The USAPDA official stated: a. The applicant's MEB was completed on 20 August 2008 with the following sole listed condition that did not meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3: Recurrent nausea and vomiting of uncertain etiology. There were no other listed medical conditions. The only profile restrictions were related to the listed condition. The 18 August 2008 physician's Report of Medical Examination indicated that, except for his listed condition, all areas, to include neurologic and psychiatric, were considered "normal." b. The applicant's commander noted that only the applicant's "motion sickness" affected his ability to perform his military duties and that he did not present any psychiatric or mental health symptoms or problems. His Noncommissioned Officer Evaluation Reports were all excellent. A mental health review conducted during the MEB process to determine if his condition was the result of any mental health issues determined that he only had some mild general anxiety, but that he met no criteria for any mental disorders at that time. The applicant concurred with the MEB’s findings on 25 August 2008. c. On 19 September 2008, an informal PEB found the applicant unfit for his listed condition and rated him 10%, separate with severance pay. Since the official medical findings could not determine how his present unfitting conditions originated, the PEB found that there was insufficient evidence to support that the condition was the directed result of armed combat. On 22 September 2008, the applicant concurred with the PEB’s findings and waived his right to a formal hearing . d. The applicant has not provided any evidence of error or injustice in the MEB's and PEB's adjudication and findings of his disability case. The MEB properly listed the only condition that was causing the applicant to have difficulties in performing his military duties and the PEB properly found that one condition unfitting and rated it appropriately. The applicant concurred in all aspects of his MEB and PEB processing. Subsequent VA ratings for other conditions are not evidence of any error by the MEB or PEB. The PEB findings were supported by the preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statue, directive, regulation, or policy. 6. The advisory opinion was forwarded the applicant for acknowledgment or rebuttal on 3 September 2015. In his rebuttal, dated 15 September 2015, the applicant reiterated his previous contentions. He also stated he did not have a full understanding of the ramifications when signing medical separation paperwork when it came to giving up his rights to the entitlement of a medical retirement. As a war veteran he feels he should be considered for medical retirement as he served honorably and lives by all the Army Values. 7. Army Regulation (Standards of Medical Fitness, chapter 7 (Physical Profiling), in effect at the time, provided that the basic purpose of the physical profile serial system was to provide an index to the overall functional capacity of an individual and was used to assist the unit commander and personnel officer in their determination of what duty assignments the individual was capable of performing and if reclassification action was warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P – physical capacity or stamina, U – upper extremities, I – lower extremities, H – hearing and ears, E- eyes, and S – psychiatric. Numerical designator "1" under all factors indicated an individual was considered to possess a high level of medical fitness and, consequently, was medically fit for any military assignment. Numerical designator "2" under all factors indicated an individual had medical condition or physical defect which required certain restrictions in assignment within which the individual was physically capable of performing military duty. 8. Army Regulation 635-40, in effect at the time, governed the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness was of such a degree that a Soldier was unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The regulation stated in the mere presences of an impairment did not, of itself, justify a finding of unfitness because of physical disability. 9. Title 38, U.S. Code, sections 1110 and 1131, 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. A PEB found the applicant unfit for recurrent nausea and vomiting of uncertain etiology and recommended his separation with severance pay. There were no other listed medical conditions. He concurred with the PEB’s findings and waived his right to a formal hearing. Accordingly, he was discharged on 23 December 2008. 2. He provided no evidence and his military records contain none showing an MEB or PEB error that would mandate any correction of his military records. Absent evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout his 2008 PDES processing. 3. The fact he was awarded a VA disability rating is not sufficient evidence to conclude that he should have been medically discharged by the Army. The VA is not required by law to determine medical unfitness for further military service. The VA 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. His current medical conditions, although not considered medically unfitting for military service at the time of his MEB and PEB processing, appear to be sufficient to qualify him for VA benefits based on an evaluation by that agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008045 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008045 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2