ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  28 March 2019

	DOCKET NUMBER:  AR20160019595


APPLICANT REQUESTS: 

* Medical Retirement
* Purple Heart (PH)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Extensive medical documentation 
* 2 letters of support
* DS Form 4187 (Personnel Action)
* Memorandum pertaining to Combat Action Badge (CAB)

FACTS:

1.  The applicant states he did not receive proper care or consideration.  He was not advised of his rights or options. He was told to should have been evaluated for a medical retirement and a PH.  

2.  The applicant entered active duty on 9 March 2011 and was honorably released from active duty on 8 March 2015, due to completion of required active service.  During his period of service he served in Afghanistan from 7 September 2012 through 26 March 2013.

3.  His records are void of orders showing he was awarded the PH.
4. The there is no indication in the available records that he was diagnosed with TBI severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident.
5. He provides a letter of support from Captain XXXXwhich states in part:

     a.  The applicant's unit was attacked by a vehicle borne improvised explosive device on 17 October 2012.  The applicant was within 100 meters of the explosion and was relocated to the FOB and was given initial treatment for symptoms of acute concussion.  There were lingering visual disturbances; however, there were no local ophthalmologist available for evaluation.  His symptoms were not incapacitating, and evacuation was not deemed necessary.

     b.  Upon redeployment, the applicant reported his injuries during the Post Deployment Health Reassessment.  He began receiving treatment for headaches, memory loss, insomnia, and behavioral health issues via the TBI clinic at Fort Campbell, KY.  His treatment continued until his expiration term of service (ETS).  

6.  He also provides a letter of support attesting to his personal and work ethics.  

7.  On 4 January 2017, the ABCMR obtained an advisory opinion from a Senior Medical Advisor with Army Review Boards Agency (ARBA), who indicates a review of the available documentation found minimal evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case.
He states, in part:

     a.  Limited review of Veteran's Administration (VA) records through the Joint Legacy Viewer (JLV) shows 122 problems: 65 VA entered including chronic post-traumatic stress disorder (PTSD), major depression, brain injury with concussion, migraine, low back pain, sleep apnea, hearing loss, tinnitus, GERD, knee pain, acne vulgaris, intracranial meningioma, and others.  The applicant’s service connected disability percentage is 100%.

     b.  The applicant probably did not meet medical accession standards for current history of heartburn {i.e. gastroesophageal reflux disease (GERD)}, and current history of multiple nevi (moles) & lipoma IAW (in accordance with) Chapter 3, Army Regulation
(AR) 40-501, and following the provisions set forth in AR 635-40 that were applicable to
the applicant’s era of service. A medical waiver was granted.

   c.  The applicant met medical retention standards for Major Depression, Other Specified Trauma- and Stress-Related Disorder (PTSD), mild obstructive sleep apnea (with CPAP therapy), headaches/migraines, small meningioma (incidental finding), history of mTBI and post-concussion syndrome symptoms, low back pain, shoulder pain, knee pain, hearing loss (with hearing aid), tinnitus, allergic rhinitis, erectile dysfunction, non-specific thyroid function abnormality, history of cholecystectomy (gallbladder removal), history of umbilical hernia, existed prior to service (EPTS) history of low-testosterone/hypogonadism, EPTS history of hyperlipidemia, EPTS history of heartburn/GERD, EPTS history of multiple lipomata (various), EPTS history of marital problems (and associated stressors) IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. 

     d.  The applicant’s medical conditions were duly considered during medical separation processing.  The applicant had numerous medical, surgical and behavioral health visits and was taking multiple medications. He and his wife reported symptoms consistent with either depression and/or PTSD.  Minimal to no significant functional and/or duty impairment was noted (there was a reference to memory/recall problems at work).  The applicant had a single psychiatric hospitalization (Nov/Dec 2014) for suicidal ideation with a plan several weeks after completion of his Chapter 14 medical assessments. It appears that the Chapter action was cancelled and he ETS’d as originally scheduled in early 2015.  The applicant had numerous (for a four year enlistment) minor and major surgical procedures for removal of multiple lipomas, capillary hemangiomas, and nevi (moles), in addition to an umbilical hernia repair and gallbladder removal. In comparison there were only a handful of orthopedic/physical injury evaluations and treatments noted with no significant physical conditions (prolonged or permanent) impairing duty performance.

8.  The applicant was provided a copy of the advisory opinion and given the opportunity to provide a rebuttal; however, he did not respond.

9.  Army Regulation 600-8-22 (Military Awards) provides that the PH is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  
10.  Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the 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 office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting separation for disability.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  The Board found that there was insufficient evidence of a medical condition that prevented the applicant from continuing his military service at the time of discharge to change his discharge to a medical retirement.

Additionally, the Board recommends denying the request for the Purple Heart on the basis that the applicant did not provide substantiating evidence verifying a wound as a result of hostile action.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION


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.


	 
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.






REFERENCES:

1.  Army Regulation 600-8-22 provides that the PH is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  
     a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:
* injury caused by enemy bullet, shrapnel, or other projectile created by enemy action
* injury caused by enemy-placed trap or mine
* injury caused by enemy-released chemical, biological, or nuclear agent
* injury caused by vehicle or aircraft accident resulting from enemy fire
* concussion injuries caused as a result of enemy-generated explosions
* mild TBI or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident

b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:
* frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951)
* trench foot or immersion foot
* heat stroke
* food poisoning not caused by enemy agents
* chemical, biological, or nuclear agents not released by the enemy
* battle fatigue
* disease not directly caused by enemy agents
* accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action
* self-inflicted wounds, except when in the heat of battle and not involving gross negligence
* PTSD
* airborne (for example, parachute/jump) injuries not caused by enemy action
* hearing loss and tinnitus (for example, ringing in the ears)
* mild TBI or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function
* abrasions and lacerations (unless of a severity to be incapacitating)
* bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer)
* soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth)
* first degree burns

2.  Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the 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 office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting separation for disability.  
	a.  The disability system assessment process involves two distinct stages:  the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 
	b.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.
3.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities.  The VA Schedule for Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  
5.  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.  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.
6.  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 an error or injustice in the Army rating.  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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.


ABCMR Record of Proceedings (cont)	 AR20160019595
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