IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150016281 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: 11 August 2016 DOCKET NUMBER: AR20150016281 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: 11 August 2016 DOCKET NUMBER: AR20150016281 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, in effect, correction of his records to show he was discharged from active duty on 21 November 2007 by reason of permanent disability vice completion of required active service. 2. The applicant states: a. He sustained a severe case of post-traumatic stress disorder (PTSD) after being involved in some very aggressive combat missions in Baghdad and conducting snatch and grab and decoy missions with the Special Forces in Al Kut, Iraq. The dreams he has are violent and he risks hurting others when he sleeps. b. With his sleep apnea, he "spot-breathes" twenty times an hour which destroys his memory. The injury to his back lumbar and left shoulder blade combined prevent him from living the life he once had and he was not able to continue serving. The Department of Veterans Affairs (VA) rated his combat related disability at 100 percent (%). He is asking that his discharge from active duty be changed to a medical discharge 3. The applicant provides a VA Rating Decision. 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 was serving in the Texas Army National Guard (TXARNG) in military occupational specialty (MOS) 19D (Cavalry Scout), the rank/grade of staff sergeant (SSG)/E-6, and was assigned to the 3rd Battalion, 144th Infantry Regiment, Kilgore, TX. 3. He was ordered to active duty as a member of his TXARNG unit in support of Operation Iraqi Freedom (OIF) and entered active duty on 28 June 2006. He served in Iraq with his assigned unit from 24 October 2006 to 10 October 2007. 4. He was honorably released from active duty on 21 November 2007 in the rank of SSG to the control of the TXARNG by reason of completion of required active service. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 4 months, and 21 days of net active service this period. 5. There is no evidence in his available record, and he did not provide any evidence, that shows while serving on active duty that he was treated for, or diagnosed with, any mental/medical condition/disorder that permanently prevented him from performing his assigned duties, was found to be unfitting, or required referral to a medical evaluation board (MEB) or physical evaluation board (PEB). There is no evidence that shows while serving on active duty that he ever received a permanent profile of "3" that would require referral to an MEB/PEB. 6. His record contains a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) he received in September 2009 for his duties while assigned as squad leader, Troop A, 3rd Squadron, 124th Cavalry Regiment, Kaufman, TX. The NCOER covered the rated period 4 June 2008 through 3 June 2009 and shows, in part: a. He passed the Army Physical Fitness Test (APFT) on 15 November 2008, his rater placed an X in either the "Success" or "Excellence" blocks and entered the comments, "led troops to excel in physical training and exceeded unit standards" and "drives Soldiers to exceed boundaries." b. His senior rater placed an X in the "Fully Capable" block and entered the comment, "place this dependable NCO in leadership positions." 7. In a DA Form 4187 (Personnel Action), dated 6 January 2010, his immediate commander recommended him for promotion to sergeant first class (SFC)/E-7. This DA Form 4187 shows the applicant's PULHES at the time was 1-1-1-1-1-1. He was promoted to SFC with an effective date of 6 January 2010. 8. He attended and successfully completed the Maneuver Senior Leaders Couse from 30 August 2012 to 18 September 2012. 9. His record contains a DA Form 2166-8 he received in February 2013 for his duties while assigned as platoon sergeant, Troop B, 1st Squadron, 124th Cavalry, Waco, TX. The NCOER covered the rated period 4 June 2011 through 3 June 2012 and shows, in part: a. The APFT information is blank, his rater placed an X in either the "Needs Improvement (Some)" or "Success" blocks and entered the comments, "very resourceful and is always mission oriented" and "should improve perceptions and confidence among subordinates of his abilities to provide leadership to the unit." b. His senior rater placed an X in the "Marginal" block and entered the comments, "should be given more time to develop prior to promotion" and "positive and dedicated NCO but needs more experience and professional development through senior and peer NCOs." 10. Orders 128-148, dated 8 May 2013, issued by the TXARNG, honorably discharged him from the ARNG effective 29 April 2013 in the rank of SFC by reason of expiration of term of service (ETS). 11. The applicant provides a VA Rating Decision, dated 26 August 2014, wherein it shows he was granted service-connected disability, in part, for: * sleep apnea, evaluated at 50% effective 6 February 2012 * anxiety not otherwise specified (NOS) with depression (previously claimed as PTSD), currently evaluated at 0%, and increased to 50% effective 6 February 2012 12. In the processing of this case an advisory opinion was received from the Chief, Behavioral Health Division, Office of The Surgeon General (OTSG) on 27 May 2016. The advisory official recommended denial of the applicant's request and stated his opinion was based on records available in the Department of Defense electronic medical record (AHLTA). The advisory official opined: a. The applicant entered active duty on 28 June 2006 and deployed to Iraq from October 2006 to October 2007. He was honorably released from active duty on 21 November 2007 for completion of required active service. In August 2014, he received a VA disability rating for anxiety NOS with depression established at 50% effective 6 February 2012. b. There are no available behavior health records during or subsequent to the applicant's military service that would support a medical retirement or separation. Although the Board requested the applicant provide documents supporting his PTSD, there are none in his file. Despite the VA rating, there is no evidence that he met the criteria for PTSD at the time of his separation from active duty. 13. On 28 May 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received. REFERENCES: 1. 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. If a Soldier is found unfit because of physical disability MEBs and PEBs 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 the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. b. This regulation also states 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/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 that service member can be medically separated or retired. 2. Title 38, USC, 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 VA rating does not establish an error or injustice by 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, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. DISCUSSION: 1. The applicant served on active duty in the rank of SSG as a member of the ARNG from 28 June 2006 to 21 November 2007. After his release from active duty, he continued to serve in the ARNG for almost 6 years and was promoted to the rank of SFC on 6 January 2010. 2. There is no evidence in his record and he did not provide any evidence that shows while serving on active duty or in the ARNG he was treated for, or diagnosed with, any mental/medical condition/disorder that prevented him from performing his assigned duties, was found to be unfitting, or required referral to an MEB/PEB. There is no evidence that shows while serving on active duty or in the ARNG he ever received a permanent profile of "3" that would require referral to an MEB/PEB. 3. There is no evidence that shows he was ever diagnosed with PTSD. As stated by the advisory official, a VA disability rating effective 6 February 2012 does not meet the criteria for a medical separation/retirement in 2007. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016281 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016281 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2