BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150012074 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 BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150012074 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. BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150012074 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 his 2008 discharge be changed to a medical discharge. 2. The applicant states he received an honorable discharge, but his unit did not put him on medical hold due to his combat-incurred injuries from his tour in Afghanistan. He worked through his Member of Congress to show he was wounded in action and thus should have been processed through medical channels and ultimately retired due to his injuries. He and his family made sacrifices for the country. His Army National Guard (ARNG) unit chain of command has not acknowledged his injuries nor assisted him with medical processing leading to a medical discharge or retirement. The Department of Veterans Affairs (VA) acknowledged his combat-incurred injuries and rated him 100 percent disabled. The Social Security Administration also acknowledged his disabilities and he receives compensation from them, too. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * statement from a fellow Soldier * medical records * VA rating decisions, dated 18 December 2008 and 13 March 2009 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. Following prior service in the U. S. Marine Corps and the U. S. Army Reserve, the applicant enlisted in the Arizona Army National Guard (AZARNG) on 12 June 2006. He held military occupational specialty 11B (Infantryman). 3. The available evidence shows the applicant was ordered to active duty as a mobilized member of his AZARNG unit on 3 January 2007. He served in an active duty status through 17 April 2008 when he was released from active duty (REFRAD) due to completion of required active service. He had completed 1 year, 3 months, and 15 days of active service. His DD Form 214 shows he served in Afghanistan from 28 March 2007 to 1 March 2008. The separation authority noted on his DD Form 214 is Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4. 4. An NGB Form 22 shows he was discharged from the AZARNG under honorable conditions (general) due to unsatisfactory participation effective 4 November 2008, in the rank of private/E-2. 5. The applicant provides the following medical records: a. A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 3 December 2007, showing he reported that on 2 December 2007, while on convoy operations in Afghanistan, his vehicle was affected by a rocket attack and small arms fire. During the attack, he was thrown around in the turret and hurt his elbow and tail bone. He was prescribed rest, ice, compression and elevation, and Motrin. He was instructed to return to the clinic if the situation got worse. b. A DD Form 2697 (Report of Medical Assessment), dated 21 March 2008 and completed in preparation for his REFRAD, showing he indicated: (1) His overall health was worse compared to his last medical assessment due to physical injuries, headaches, stomach pain, and hearing and vision problems. (2) Since his last medical assessment he had the following illnesses or injuries that caused him to miss duty more than 3 days: infected eyes, injuries received during a firefight, stomach problems, and a hiatal hernia. (3) Since his last medical assessment he had been seen or treated for a stomach procedure done in Bagram, Afghanistan; he was diagnosed with gastroesophageal reflux disease (GERD) and a hiatal hernia. (4) He suffered from the following injury/illness while on active duty for which he did not seek medical care: left shoulder injury, anxiety attacks, and sleep disorder. (5) He indicated he intended to seek VA disability for injuries received during deployment. (6) The health care provider indicated the applicant was involved in a blast and was seen at the traumatic brain injury clinic. He had been given a temporary profile. He also had insomnia; tinnitus; chest congestion; injuries to his knee, back, elbow and left shoulder; post-traumatic stress disorder (PTSD), hiatal hernia; GERD; and conjunctivitis. (7) The applicant was not referred for further evaluation. c. He was seen on several occasions prior to his REFRAD for various conditions. Each visit resulted in him being returned to duty without limitations. 6. A VA rating decision, dated 13 March 2009, shows he was determined to be unemployable and was granted a 100 percent disability rating effective 18 April 2008. Service-connection was granted for – * PTSD * post-concussive syndrome (claimed as traumatic brain injury) * GERD * hiatal hernia * left shoulder strain (degenerative changes) * lumbar thoracic degenerative and joint disease * left knee strain * bilateral tinnitus * right elbow lateral epicondylitis * left elbow lateral epicondylitis * left hearing loss * hemorrhoids 7. On 27 May 2009, upon application to the ABCMR, the Board awarded the applicant the Purple Heart for injuries incurred in Afghanistan on 2 December 2007 when his convoy was ambushed by enemy forces. 8. The applicant provides a memorandum from Specialist (SPC) P____ A. V_______, dated 2 December 2007, who reports that he was a driver of one of the gun trucks in the convoy and the applicant was a gunner on another gun truck. This individual stated the applicant sustained several injuries, mainly to his elbow due to an explosion. The applicant was treated and released. 9. In the processing of this case, advisory opinions were obtained from the Army Review Boards Agency's (ARBA's) Medical Support Staff: a. On 2 November 2006, a staff psychiatrist indicated she was asked to review his request with respect to the applicant’s VA diagnosis of PTSD. The applicant requested that his case be reviewed for military medical retirement. (1) Documentation reviewed includes his ABCMR application, VA healthcare documents, available military medical records and available military personnel records. His electronic military record (AHLTA) was also reviewed. . (2) He reports he is rated 70 percent service connected by the VA for PTSD. While this VA finding supports the applicant’s post-service diagnosis of PTSD, it does not provide evidence of an in-service PTSD diagnosis. (3) His military medical treatment records are void of any evidence showing he was diagnosed and treatment for PTSD symptoms or diagnosis while on active duty. In addition, there is no documentation showing he sought any medical treatment for a behavioral health condition. There is no evidence he was medically treated or that he received a permanent psychiatric profile that would have limited his abilities to perform his soldiering tasks. There is nothing in his records to show he did not meet medical retention standards that would have warranted his entrance into the Physical Disability Evaluation System (PDES). (4) It is important to understand that the VA operates under different rules, laws and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD, however, does not compensate for unsuiting conditions; it only compensates for unfitting conditions. The applicant’s condition(s) were not felt to be unfitting when he was on active duty, as indicated by the fact he was found to meet military medical retention standards. (4) Based on the information available for review at this time, there is insufficient evidence to support the applicant’s request that his record be referred for consideration of military medical retirement for PTSD. b. The ARBA Senior Medical Advisor reviewed all the evidence and noted: (1) The applicant met medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant?s period of service. (2) The applicant’s medical conditions were duly considered during his demobilization process. The applicant prematurely left the demobilization site (Fort Bragg) due to child care issues. He then failed or refused to report to his assigned ARNG unit for drills from April through November 2008. While not participating in mandatory drills, the applicant initiated and followed through on numerous VA medical evaluation appointments. (3) A review of the available evidence found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 9. Copies of the advisory opinion was provided to the applicant for his review and rebuttal. He did not respond. REFERENCES: 1. Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating 2. AR 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 (Policies) states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. b. 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. c. Under the laws governing PDES, Soldiers with physically unfitting medical conditions must have incurred or aggravated those disabilities in the line of duty, and while entitled to basic pay, or as the result of performing active duty (ADT), or inactive duty (IDT), for training. d. Chapter 8 (Reserve Components (RC)) addresses the rules for processing Soldiers within the RC. It states, in order for an RC Soldier to be compensated under the PDES, there must be a determination by a PEB that the unfitting condition was the proximate result of performing duty. (1) A disability from injury is covered in the PDES when the injury was incurred in the line of duty, and the result of performing annual training, inactive duty training (IDT) (including IDT without pay under competent orders), or active duty for training. (2) Based on a November 1986 revision to the law, Soldiers may be referred into the PDES when they have incurred or aggravated a disease in the line of duty while performing inactive or active duty for training. Referral does not mean an automatic entitlement to disability compensation. 3. 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, does not 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. 4. There is a difference between the VA and the Army disability systems. The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating. If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature. The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of a Physical Evaluation Board hearing. The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating. The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on changes in the disability. DISCUSSION: 1. The applicant states his unit never put him on medical hold nor processed him for a medical discharge even though he has severe injuries and had been rated 100 percent service connected by the VA. 2. The available evidence does not show the applicant had any medical issues, to include behavioral health conditions, that impacted his ability to perform his duties prior to separation from active duty due to completion of required active service or prior to his general discharge from the AZARNG. 3. VA service-connected disability compensation is strictly a VA benefit paid to a veteran because of injuries or diseases incurred while serving on active duty or because pre-existing conditions were exacerbated by military service. While the Army only rates those medical conditions that result in the Soldier being determined unfit for continued military service, the VA generally rates a Soldier for all conditions incurred or aggravated by military service. 4. The Army and the VA disability evaluation systems are independent of one another. Only those conditions that render a member unfit for continued military service will be rated by a Physical Evaluation Board. However, the VA can rate all service-connected conditions throughout the Veteran’s life. 5. The ARBA Senior Medical Advisor found no evidence of a medical disability or condition which would support a change to the reason for discharge (or REFRAD) in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012074 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012074 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2