IN THE CASE OF: BOARD DATE: 10 December 2015 DOCKET NUMBER: AR20150013611 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 correction of his military records by showing: a. his disability rating at the time of separation as 30 percent; b. his medical condition included having hepatitis C; and c. his awards and decorations included badges and medals for serving in combat in Iraq. 2. The applicant states he received a 20 percent rating from the Army and contends that it should have been 30 percent. When he was medically boarded out of the Army they did not account for his having hepatitis C which was found in him in 2001 by the Red Cross after he had returned from Bosnia. He will submit Red Cross documentation. In 2004 when he was medically boarded out, no one was given any assistance. He was unaware of what a 30% disability rating from the Army would provide for him and his family. He did not know anything about the Department of Veterans Affairs (VA). He had very little information about post-traumatic stress disorder (PTSD). He was afraid to report that he had any mental problems because he believed he would not be able to find a job. He had very young children at the time and did not talk about his struggles after the invasion of Iraq in 2003 with the 3rd Infantry Division. He also did not receive a combat badge at the time because it did not exist. He asks that any other medals or badges he is authorized be shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. The applicant provides copies of: * A DA Form 705 (Army Physical Fitness Test (APFT) Scorecard), dated in March and June 2002 * A DA Form 4980-14 (Certificate for award of the Army Commendation Medal (ARCOM)), dated 15 June 2003 * An Enlisted Record Brief (ERB), dated 29 October 2003 * A DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earnings Statement), dated 1-31 October 2003 * A DA Form 3947 (Medical Evaluation Board Proceedings (MEB)), dated in January 2004 with associated documents (20 pages) * A DA Form 199 (Physical Evaluation Board Proceedings (PEB)), dated 23 January 2004 with associated documents (11 pages) * Orders 054-0025, 3rd Infantry Division, dated 23 February 2004 * A DD Form 214 ending on 3 April 2004 (Member copy * VA VISTA Electronic Medical Documents, Consult Requests), dated between 25 August and 30 September 2009 (5 pages) * Desert Imaging, Ultrasound Report, dated 26 June 2014 (2 pages) * A VA Letter, Summary of Benefits, dated 23 January 2015 (2 pages) * A Letter from the American Red Cross to the applicant, dated 29 January 2015 with associated information sheets (9 pages) * A letter from the applicant’s physician, dated 2 February 2015 * Open Burn Pit Registry, dated 4 February 2015 (11 pages) * A VA Request for Outpatient Services, dated 4 February 2015 (3 pages) * A Letter of Support from the applicant’s former platoon leader, dated 2 March 2015 * A Psychiatric Evaluation, El Paso Behavioral Health System, dated 31 March 2015 * A Refill Prescription Information Sheet, My Healthevet, dated 31 March 2015 * A VA Rating and Compensation Decision, dated 24 August 2015 (9 pages) * A Refill Prescription Information Sheet, My Healthevet, dated 14 September 2015 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. Requests for retroactive award of the Combat Action Badge must be forwarded to the Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. a. For individuals who are no longer on active duty, this request must be in the form of a letter and contain the following: * assignment, attachment, or operational control orders * a copy of your Enlisted Record Brief or Personnel Qualification Record * a copy of the chain of command endorsement * a one-page narrative description of the qualifying incident * a certified copy of the DD Form 214 * other supporting documentation b. Because the applicant has not exhausted his administrative remedy with regard to this badge, no further action can be taken at this time. This does not mean this portion of the application has been denied by the ABCMR or that he may not file again. If, upon receiving a decision, he still feel an error or injustice exists, he may submit a new to this Board application with evidence of the U.S. Army Human Resources Command's denial of his request. Accordingly, this issue will not be discussed further in these proceedings. 3. On 29 September 1998, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty 45G (Fire Control Systems Repairer). 4. A DA Form 705, as provided by the applicant, shows that he passed a record APFT on 13 March 2002 and a diagnostic APFT on 12 June 2002 while assigned to Company B, 26th Forward Support Battalion (FSB). 5. The applicant served in support of Operation Enduring Freedom (OIF) in Iraq from on or about 20 March to 15 July 2003 (3 months and 26 days). 6. A DA Form 4980-14, dated 15 June 2003, as provided by the applicant, shows he was awarded the ARCOM for exceptional meritorious service while serving with the 26th FSB in Iraq from 20 March to 30 April 2003. 7. A DD Form 2807-1 (Report of Medical History) dated 23 September 2003, as provided by the applicant as part of his MEB packet, shows he listed the following medical issues: * He had worn both glasses and contact lenses * He had recurrent back pain since 28 December 1999 with numbness or tingling occurring during OIF * He had stress fractures in his left foot on 24 November 1998 * He had swollen and/or painful joints (no specifics provided) * He had unexplained weight gain since 24 May 2000 * He was advised to have surgery (no specifics provided) * He received physical therapy on 27 June 2000 8. On 18 November 2003, the applicant’s commander stated in a memorandum, as provided by the applicant, that he was physically incapable of performing his duties as a fire control repairer due to his chronic back problems. The commander recommended the applicant be considered unfit because he cannot deploy with his unit due to his medical condition. 9. A DA Form 3947, dated 13 January 2004, shows the applicant was considered by an MEB. He was diagnosed with having mid thoracic back pain that originated in 1999. He was referred to a PEB. The findings and recommendation were approved and the applicant concurred. 10. A DA Form 3349 (Physical Profile), dated 13 January 2004, as provided by the applicant, shows he was given a permanent physical profile for his thoracic back pain. He was restricted to light duty with no lifting of more than 20 pounds, no marching, running, or jumping, and physical training at his own pace. 11. A DA Form 199 approved on 23 January 2004, as provided by the applicant, shows: a. The PEB convened on 16 January 2004 to consider the applicant's chronic back pain, without significant neurological abnormality, forward flexion limited to 55 degrees. b. The PEB found him physically unfit to perform the duties of a Soldier of his rank and primary specialty. His medical condition was rated at 20 percent disabling in accordance with VA Schedule for Rating Disabilities code 5299 and 5237. No other medical conditions were recommended to the PEB for evaluation. The PEB recommended the applicant's separation with severance pay, if otherwise qualified. c. The applicant concurred with the PEB findings and recommendations. He waived a formal hearing. d. The PEB Liaison Officer indicated he informed the applicant of the findings and recommendations and explained his legal rights. 12. On 3 April 2004, the applicant was discharged from active duty due to a physical disability with entitlement to severance pay. 13. A VA Consult Requests, dated 24 and 30 September 2009, indicate the applicant first sought treatment in May or June 2009, for anxiety, trouble sleeping due to hypervigilance, and irritability/anger outbursts. He stated he did not know how he acquired hepatitis C. He denied having mania/psychosis/OCD. He was assessed with having PTSD and chronic thoracic back pain. He had been recently evaluated as positive for having a mild traumatic brain injury (TBI). The VA granted him a service-connected physical disability rating of 90 percent as follows: * PTSD at 70 percent * Lumbosacral or cervical strain at 40 percent * Hepatitis C at 20 percent * Deformity of the penis at zero percent * Residuals of foot injury at zero percent 14. During the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA). The opinion stated that the applicant’s MEB in 2004 listed only his mid thoracic back pain. His medical records at the time noted no complaints of either hepatitis C or PTSD. Even if he had those conditions in 2004, there is no evidence showing they were limiting his ability to perform his assigned military duties. Any subsequent ratings for those conditions by the VA is not evidence of any MEB or PEB error. The mere presence of an impairment does not justify a finding of unfitness. Only those conditions that are determined to be unfitting can be compensable in the military disability system. The opinion recommended no changes to the applicant’s military records. 15. On 16 September 2015, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. 16. On 24 September 2015, the applicant’s response to the advisory opinion discussed above was received. He stated: a. He was among the first group to be medically boarded out of the Army after the invasion of Iraq in 2003. He contends that he and others were rushed out of the Army and that the VA was going to take care of them. b. He was told that if he took the formal hearing there was a chance he would not get anything which put a scare into him. c. He argues that this Board is his last option to fix his issues and get his hepatitis C and PTSD added to his military records. He only received a 20 percent disability rating from the Army and is pushing to receive at least 30 percent in order to get the assistance needed for him and his family. d. He argues that he was blown off a tank in Iraq and hurt his spine and hit his head on the floor. What happened to him during combat was not annotated because he was up front where only the medics were available to help. When his injuries caused him to start falling down, he was returned to Fort Stewart a month prior to the rest of the 3rd Infantry Division. e. The VA has rated him at 70 percent disabled due to PTSD and assigned ratings of 40 percent for his back and 20 percent for his hepatitis C. 17. Army Regulation 600-8-22 (Military Awards): a. The Iraq Campaign Medal (ICM) is awarded to members who have served in direct support of Operation Iraqi Freedom (OIF). The area of eligibility encompasses all the land area of the country of Iraq, the contiguous water area out to 12 nautical miles, and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles. The ICM period of eligibility is on or after 19 March 2003 through 31 December 2011. A bronze service star is authorized for wear with this medal for participation in each credited campaign. Approved campaigns included: * Liberation of Iraq (19 March 2003-1 May 2003) * Transition of Iraq (2 May 2003-28 June 2004) b. The Global War on Terrorism Service Medal (GWOTSM) is authorized for award to members of the Armed Forces of the United States who have participated in Global War on Terrorism operations outside of the areas of eligibility designated for award of the Global War on Terrorism Expeditionary Medal, Afghanistan Campaign Medal, or ICM. All Soldiers on active duty, including Reserve Component Soldiers mobilized or National Guard Soldiers activated, on or after 11 September 2001 to a date to be determined having served 30 consecutive days or 60 nonconsecutive days are authorized the GWOTSM. 18. 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. a. It provides for MEBs, which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. b. It states the narrative summary (NARSUM) to the MEB is the heart of the disability evaluation system. In describing a Soldier's conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service. Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings. If the Soldier does not agree with any item in the medical board report or the NARSUM, he or she will be advised of appeal procedures. c. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 19. 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% and 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%. 20. 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 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. 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 contends that his military records should be corrected by showing: a. his disability rating at the time of separation as 30 percent or more; b. his medical condition included having hepatitis C; and c. his awards and decorations included combat badges and medals for serving in Iraq. 2. The evidence shows the applicant agreed with the findings of the MEB which diagnosed him with mid thoracic back pain and referred him to the PEB. The PEB found his back pain to be unfitting and rated at 20 percent disabling. There were no other conditions identified on the MEB for the PEB to consider. The applicant concurred with the PEB findings and recommendations. He was accordingly discharged with severance pay. 3. In 2009, more than 5 years after his separation from the Army, the VA granted him a combined service connected disability rating of 90 percent which included PTSD, cervical strain, and hepatitis C. 4. At the time of his discharge, there was no evidence showing the applicant had any psychiatric problems that rose to the level of causing him to be unfit for duty. His hepatitis C was not identified as a medical condition that made him unfit to perform his military duties. 5. The applicant's physical disability evaluation appears to have been conducted in accordance with law and regulations. There does not appear to be an error or an injustice in his case. The argument and documentation he provided does not support his belief and allegation that either the MEB or PEB failed to consider all relevant medical data. 6. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. 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. 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. 7. The available evidence shows that the applicant served during a qualifying period for award of the ICM with two bronze service stars and the GWOTSM. Therefore, these medals should be shown on his DD Form 214. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X____ ___X_____ ____X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following to his DD Form 214: * Iraq Campaign Medal with two bronze service stars * Global War on Terrorism Service Medal 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing/adding medical conditions or increasing the percentage of his physical disability as determined by the physical evaluation board. ____________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) AR20150013611 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150013611 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1