BOARD DATE: 23 March 2017 DOCKET NUMBER: AR20150018966 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: 23 March 2017 DOCKET NUMBER: AR20150018966 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: 23 March 2017 DOCKET NUMBER: AR20150018966 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 medically discharged or retired because of physical disability, in lieu of the honorable release from active duty (REFRAD) he actually received. 2. The applicant states he was hit in the head during his service in the military. He was treated for a head injury; he now has headaches and ringing in his ears and it is not getting better. When he was released from the Army, he was told to "keep moving and not say anything." If the Army had addressed the problem at the time, he would not be going through this now. Also, he is being treated for post-traumatic stress disorder (PTSD); his records should show he has PTSD. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 21 January 1971 and three pages of progress notes from the Department of Veterans Affairs (VA) Medical Center at Murfreesboro, TN. 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 29 January 1969. Following the completion of his initial entry training, he was awarded military occupational specialty 91B (Medical Specialist). The highest rank/grade he attained while serving on active duty was specialist four/E-4. 3. Following his initial entry training, the applicant was reassigned to the 8th Medical Battalion, U.S. Army Europe, where he served for the remainder of his period of active duty. 4. The applicant was honorably REFRAD on 21 January 1971. His DD Form 214 shows he was REFRAD under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as an early returnee from overseas service, and he was reassigned to the U.S. Army Reserve Control Group (Annual Training) following his REFRAD. 5. The applicant's medical records are not available for review; however, his available personnel records do not reveal the existence of any injury or illness that substantiates his unfitness due to physical disability to reasonably perform the duties of his office, grade, or rank, thus warranting his referral into the Physical Disability Evaluation System (PDES). 6. The applicant provides three pages of progress notes from the VA Medical Center at Murfreesboro, TN. These progress notes, printed on 18 August 2016, show he was diagnosed by the VA with PTSD and traumatic brain injury (TBI), based on an incident in which he reported receiving a blow to his head from a steel bar on 22 December 1970. His treatment for this injury included sutures and steri-strips, followed by his return to duty. 7. In connection with the processing of this case, an advisory opinion was obtained on 28 October 2016 from the Army Review Boards Agency (ARBA) Staff Psychiatrist. This official stated: a. The applicant is applying to the ABCMR stating he has been diagnosed with PTSD and had a head injury while in the military. He is asking for these diagnoses be added to his record and for his record to be referred for medical disability/retirement consideration based on these conditions. b. The ARBA Staff Psychiatrist was asked to review the applicant's request. Documentation reviewed includes the applicant's ABCMR application, two VA medical notes provided by the applicant and the applicant's military personnel file. Military medical records were not available for review. The electronic military medical record was not reviewed as it was not in use during the applicant's time in service. c. The VA documentation submitted by the applicant consists of a consultation request and an incomplete TBI evaluation note. The consult note is dated 8 October 2015 and appears to be a medication request for a non-formulary medication. The consult note states that the "Provisional Diagnosis" is PTSD. No more information is provided regarding this provisional diagnosis. The applicant also submitted an incomplete VA TBI evaluation note. This note indicates that the applicant reported being hit on the head with a steel beam while on active duty. According to this note, the applicant suffered a laceration from this injury but did not lose consciousness or experience altered consciousness thereafter. The applicant denied having any memory or cognitive issues after the injury. He did complain of occasional headaches for a few years after the injury. The note states that the applicant did not complain of headaches or cognitive issues during his medical visits dated September 2003 through Dec 2004. In May 2005, he was noted to have "recent headaches". In August 2007, he denied headaches. This note also lists the applicant's past medical history but does not list PTSD as one of his past diagnoses. d. A review of the military personnel record is void of any mention of head injury or PTSD symptoms. The applicant's military medical records were not reviewed as they were not made available. There is no indication in the applicant's personnel records that he failed to meet medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable during the applicant's era of service. e. Based on the documentation available for review at this time, there is insufficient evidence to support the applicant's request his record be amended to include PTSD and TBI. The VA documentation submitted by the applicant does not support his contention that he has PTSD as the diagnosis is listed as "provisional" on a medication request form. The VA documentation regarding his TBI is incomplete. There is no indication in the applicant's military records that he failed to meet military retention standards in accordance with Army Regulation 635-40. Therefore, a referral of the applicant's record for consideration of military medical discharge/retirement is not warranted. 8. A copy of the advisory opinion was forwarded to the applicant on 31 October 2016, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. Paragraph 3-2 provides that for members being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit. b. Paragraph 4-9 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB. c. Paragraph 4-13 provides that those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. 2. 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. 3. 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 percent. DISCUSSION: 1. The applicant's request for correction of his records to show he was medically discharged or retired because of physical disability, in lieu of the honorable REFRAD he actually received, was carefully considered. 2. The applicant's medical records were not available for review. There is no evidence he was diagnosed with either PTSD or TBI while on active duty. It is possible that he has developed PTSD or his condition may have worsened since he was separated; however, the Army's PDES is dependent on the existence and severity of a condition at the time of separation. There is no evidence that either his PTSD or TBI was severe enough to render him unfit to reasonably perform the duties of his office, grade, or rank. 3. Additionally, there is no evidence that either his previous commander or medical officials determined he required referral to an MEB. Therefore, he never underwent an MEB. Without an MEB, there would have been no basis for referring him to a PEB. Without a PEB, he could not have been issued a medical discharge or retired for physical disability. 4. The advising psychiatrist found no indication in the applicant's military records that he failed to meet military retention standards and, as such, a referral of the applicant's record for consideration of military medical discharge/retirement is not warranted. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018966 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2