IN THE CASE OF: BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20170007016 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: 4 January 2018 DOCKET NUMBER: AR20170007016 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: 4 January 2018 DOCKET NUMBER: AR20170007016 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 he was retired due to physical disability. 2. The applicant states he joined the Army in August 2004 as an infantryman. When he enlisted he had a physical profile PULHES of 113111. He had no idea what a PULHES was. He deployed to Iraq from December 2005 to December 2006. He was awarded the Combat Infantryman Badge. He was injured and diagnosed with a mild traumatic brain injury (TBI). When he tried to reenlist, he was told he was not qualified because of his PULHES. He was considered disabled and held a permanent physical profile. He chose to let his enlistment contract lapse. After being held over due to stop loss, he was separated under honorable conditions. 3. Now, several years later, he works for the Department of Defense and has just heard that a medical retirement is an option. He served honorably in incredibly dangerous and demanding conditions. He did it while injured and was further injured. His unit and the U.S. Army did not watch out for him. He believes this is the definition of an injustice and wants to have his records reviewed and updated to show a medical retirement. He further argues that this era of war was a volatile time for the armed forces. As a service member, there was no information during the early years of the wars in Iraq and Afghanistan. Mild TBI was denied and post-traumatic stress disorder (PTSD) was mocked. Mental health changed its name to avoid a stigma. The country was in need of people to fill combat rolls and he stepped up to do his part. He performed while hurt and sustained added injuries. He kept his head down and refused to ask for help. Now, he is paying for those choices and his life has been made more difficult. Now that he works in an Army hospital, he has heard about medical retirement. The mere idea of just going to sick call during the war was seen as being weak and damaging to the unit. Now that he is older, he knows he should have been medically retired. This is a slam dunk injustice that can be corrected if he is given fair consideration. 4. The applicant provides: * DD Form 2808 (Report of Medical Examination), dated 29 June 2004 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 13 December 2007 * Permanent Orders Number 111-006, Headquarters, Multi-National Division (Baghdad), dated 21 April 2006 * Orders 323-0149, Fort Hood, TX, dated 19 November 2007 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. DD Form 2808, as provided by the applicant, indicates he was granted a medical waiver with a permanent physical profile and PULHES of 113111 for the purpose of enlisting in the Regular Army (RA). 3. On 17 August 2004, the applicant enlisted in the RA and was trained as an infantryman. He served in Iraq from 12 December 2005 to 12 December 2006. He was subsequently reassigned to Fort Hood, TX. 4. On 13 December 2007, the applicant was released from active duty (REFRAD) under the provisions of Army Regulation (AR) 635-200, chapter 4, due to completion of required active service. He was assigned a separation program designator (SPD) code of MBK and a reentry (RE) code of 1. He attained the rank of specialist four, pay grade E-4, and completed 3 years, 3 months, and 27 days of creditable active service. He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). 5. Orders A-04-912105, U.S. Army Human Resources Command (HRC), dated 27 April 2009, ordered the applicant to active duty for operational support under the provisions of Title 10, U.S. Code, section 12301 (D) with duty at Fort Sill, OK. He had a report date of 7 July 2009. These orders show he held the rank of sergeant, pay grade E-5 with a date of rank of 1 November 2008. 6. Orders A-05-015151, HRC, dated 20 May 2010, ordered the applicant to active duty for operational support under the provisions of Title 10, U.S. Code, section 12301 (D) with duty at Fort Hood, TX. These orders were amended to show his period of active duty as 200 days including accumulated leave with an end date of 17 December 2010. 7. DD Form 214 ending on 17 December 2010 shows the applicant was honorably REFRAD under the provisions of AR 635-200, chapter 4, due to completion of required active duty service. He was assigned an SPD code of MBK and an RE code of NA. He held the rank of sergeant, pay grade E-5, and he completed 1 year, 5 months, and 11 days of creditable active service during this period. He was transferred back to the 1st Battalion, Combat Support/ Combat Service Support), 289th Regiment, Houston, TX. 8. Orders 11-024-00039, 63rd Regional Support Command, dated 24 January 2011, announced the applicant’s reassignment to the 312th Medical Company located in Seagoville, TX, effective 23 February 2011. 9. Records show the applicant was ordered to active duty on or about 8 July 2011 for the purpose of attending the 41-week Biomedical Equipment Specialist Course at Fort Sam Houston, San Antonio, TX. 10. DA Form 2166-8 (Noncommissioned (NCO) Evaluation Report (NCOER)), a 12-month annual report for the period ending 30 October 2011, states the applicant was fully capable in his duties as a biomedical equipment sergeant. At the time his primary military occupational specialty (MOS) was 11B (Infantryman). His rater considered him to be successful in all evaluated areas. His senior rater described him as a mentally tough leader with a remarkable resiliency, who had superior overall potential for promotion and to serve in positions of greater responsibility. 11. DD Form 214, ending on 16 May 2012, shows the applicant was honorably REFRAD under the provisions of AR 635-200, chapter 4, due to completion of required active service. His primary MOS is shown as 68A2O, Biomedical Equipment Specialist). He was assigned an SPD code of MBK and an RE code of 1 indicating he was fully eligible to reenter active service without waiver. He held the rank of sergeant, pay grade E-5 and completed 10 months, and 9 days of creditable active service during this period. He was transferred back to the 312th Medical Company. 12. DA Form 2166-8, a 12-month annual report for the period ending 30 October 2011, states the applicant was fully capable of performing his duties as a biomedical equipment sergeant. His rater and senior rater rendered essentially the same evaluation of his duty performance as stated in his previous NCOER discussed above. 13. DA Form 2166-8, a 6-month change of rater report ending on 1 May 2013, states the applicant’s performance of duty was essentially the same as reported on his two previous NCOERs except for the area of physical fitness. This evaluation states he needed improvement based on non-attendance during battle assemblies resulting in him not having a current Army Physical Fitness Test (APFT) score and height and weight data. 14. Orders 14-113-00099, 63rd Regional Support Command, dated 23 April 2014, announced the applicant’s honorable discharge from the USAR, effective 24 April 2014, under the provisions of AR 135-178 (Separation of Enlisted Personnel). His unit at the time was shown as the 362nd Medical Company, located in Sacramento, CA. 15. In the processing of this case, a staff medical advisory opinion was obtained, wherein the psychologist summarized the applicant’s RA service from 2004 to 2007. His request for a change of his honorable discharge to a retirement based on his medical condition was thoroughly reviewed to include his waiver to enlist with a permanent physical profile, his concerns about TBI and PTSD, and ability to perform his duties and take the APFT. His records were found to be positive for a diagnosis of mild TBI, depression, and an adjustment disorder; however, there was no indication that these conditions warranted further evaluation or consideration for a Medical Evaluation Board. His medical conditions were duly considered during medical separation processing and a review of the available documentation found no evidence of a medical disability or condition which supported a change of his characterization of service or the reason for discharge. 16. On 27 June 2017, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. On 19 July 2017, the applicant provided a lengthy rebuttal statement, summarized below. He also provided a list of his service-connected disabilities as rated by the Department of Veterans Affairs (VA) between 2007 and 2016; and his VA medical records (25 pages of Progress Notes and a Consult Request). a. He explained that he was kept on active duty due to stop loss from October to December 2007. He was notified on 10 December 2007 that he was authorized to clear base and not redeploy; or he could do nothing and remain with his unit. He cleared the base 4 days later. The Army did not give him a separation physical. His requested a change in his physical profile because the Army blocked him from reenlisting. Additionally, he states: b. His return to the USAR in 2008 suggests his physical and mental health were satisfactory. However, he had already been rated at 50 percent disabled due to PTSD and he had physical limitations. He returned to the military because he could not adapt to being a civilian. c. He served as an infantryman during the highest casualty rated years of the wars. He personally participated in over 200 combat operations. He relates that in July 2007 a Soldier was struck in the head by a rocket propelled grenade. This Soldier was forced to take the applicant’s place because he did not have his Kevlar and body armor. They performed their own recoveries. The applicant remembers recovering pieces of skull fragments and brain matter, trying to clean off the sand and place bits of his scalp into Ziplock baggies. In another instance, the applicant relates seeing a man who was holding on to concertina razor wire to keep from being pulled under the tires of a vehicle. These are just two stories out of hundreds. If one does not think these experiences meet the requirement for PTSD, then he is terrified of what kind of a man would. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation): a. This regulation provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. 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. b. It also provides that when a member is being separated by reason 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 was 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, rendered the member unfit. 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% 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%. 3. Title 38, U.S. Code, permits 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: 1. The applicant contends his military records should be corrected by showing he was retired due to a physical disability because he enlisted with a physical profile PULHES of 113111 and he was subsequently injured and diagnosed with having a mild TBI resulting in non-qualification for reenlistment and a permanent physical profile for his disability. 2. The available evidence shows the applicant was granted a medical waiver and allowed to enlist in the RA with a permanent physical profile for his lower extremities. He was subsequently REFRAD due to completion of required service. He was assigned an RE code of 1 indicating he was fully eligible to reenlist without a waiver. There is no documented evidence showing he was denied reenlistment at the time due to a medical condition. 3. The evidence of record indicates the applicant was subsequently assigned to a troop program unit in the USAR and continued to serve satisfactorily. He performed active duty service and completed additional training resulting in award of a biomedical equipment specialist MOS. 4. A review of the applicant’s NCOERs covering his performance of duty from 2011 to 2013, indicate he was fully capable and satisfactorily performed his military duties. These reports do not show he suffered from any physical or mental conditions that adversely affected his abilities as a Soldier. 5. The applicant did not present with any condition that was medically unfitting for retention at the time of discharge in 2007, or later in 2014 when discharged from the USAR, there was no basis for a medical retirement or disability separation. 6. The Army must find that a service member is physically unfit to reasonably perform his or her duties and is assigned an appropriate disability rating before he or she can be medically retired or separated from active service. 7. An award of a VA rating does not establish entitlement to medical retirement or disability 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. 8. There does not appear to be an error or an injustice in his 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) AR20170007016 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170007016 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2