ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  20 May 2019

	DOCKET NUMBER:  AR20170007164


APPLICANT REQUESTS: reconsideration of his previous request for: 

* a medical disability retirement
* a change of his separation authority and separation code

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DA Form 2923 (Sworn Statement)
* Radiologic Examination Report
* Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care)
* letter from the Department of Veterans Affairs (VA)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150016281 on 11 August 2016.

2.  The applicant states:

     a.  He was mentally unstable and should have been considered by a medical board. His command refused to allow this and ignored and closed doors on him.  During his years in the Army, he was very proud of his achievements.  He conducted over 208 combat missions in Baghdad, Iraq, and another 52 missions in Al Kut, Iraq.  He was engaged in firefights and on one mission, while attempting to secure a payload on the back of a 7 ton truck, he fell from the top of the truck and landed on his back.  This led to his Sciatica.  He was still hyped up from combat missions and he was opening up to the misgivings of how he was feeling.

     b.  After a few months, he was alerted to his next deployment to Afghanistan for “AD3” in the Gosni District.  While in pre-deployment, he fell and broke his left scapula and crushed his long thoracic nerve in his back.  This injury removed him from deployment.  While assigned to Fort Sam Houston, TX, he underwent a magnetic resonance imaging (MRI) that revealed multiple nodules in his left and right lungs.  The doctor asked where he was deployed to in Iraq.  He explained that he was living on Pad 12 in Camp Liberty about 300 yards from the burn piles.  The doctor instructed him to sign-up for the Gulf War Syndrome registrar.

     c.  Afterwards, he began a downward path due to his bouts with post-traumatic stress disorder (PTSD).  His family left him and his performance on the military was exhausted.  His Noncommissioned Officer Evaluation Reports reflected that he simply gave up.  He asked his command to allow him to go before a medical board and was told no.  His VA doctor prescribed medications for his nightmares and mood and he received a Continuous Positive Airway Pressure machine for sleep apnea.  He wanted to complete 20 years of military service, but he could not due to his medical conditions.  Later the VA awarded him a 100 percent (%) disability combat-related rating.  He is requesting consideration by a medical board for a medical discharge.

3.  The applicant provided:

* DA Form 2923, dated 10 July 2009, wherein he stated matters pertaining to injuries he sustained to his thumb and little finger during a patrol
* Radiologic Examination Report, dated 20 August 2009, showing he underwent an MRI of the cervical spine
* SF 600, dated 20 August 2009, showing his MRI revealed a nondisplaced comminuted fracture of the left superior scapular border
* letter, dated 25 Jan 2016, wherein the VA advised of his summary of benefits and service-connected disability rating of 80%

4.  Review of the applicant’s military record shows:

     a.  He enlisted in the Texas Army National Guard (TXARNG) on 30 April 2003 and he held military occupational specialty 19D (Cavalry Scout).  

     b.  He was ordered to and entered active duty in support of Operation Iraqi Freedom on 28 June 2006.  He served in Iraq from 24 October 2006 to 10 October 2007.

     c.  He was honorably released from active duty on 21 November 2007 and he was reverted to control of TXARNG.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 4 months, and 21 days of active duty.  This form also shows in:

* item 25 (Separation Authority) – Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 4
* item 26 (Separation Code) – LBK
* item 28 (Narrative Reason for Separation) – Completion of Required Active Service

     d.  He was honorably discharged from the TXARNG on 29 April 2013.

5.  On 11 August 2015, the ABCMR denied his petition for a permanent disability retirement vice completion of required active service.

6.  An advisory opinion was received from the Senor Medical Advisor, Army Review Boards Agency, on 23 June 2017, in the processing of this case.  The medical advisor reviewed the record for alleged medical condition(s) that may have warranted separation through medical channels or medical condition(s) not considered during medical separation processing.  The medical advisor reiterated the applicant’s period of service and stated the available record did not reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant’s military service.  A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case.  The applicant was separated after completing his term of service in 2012 [2013].

7.  The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal.  He did not respond.

8.  By regulation:

     a.  AR 635-200, ARNG Soldiers may be released from active duty upon completion of fulfillment of service obligation and reverted to control of the appropriate Reserve Component.  

     b.  AR 635-5 (Separation Documents), the DD Form 214 would list the separation authority and code based on regulatory authority for separation and the corresponding Separation Program Designator (SPD) code for the regulatory authority and reason for separation.

     c.  By law, the VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The findings of the VA as to disability conditions are not binding on the Army and do not require reassessment of earlier determinations.

9.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.



BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the medical advisory’s finding that no evidence of a medical disability or condition which would support a change to the character or reason for the discharge and there was no rebuttal of those findings by the applicant, the Board concluded that there was insufficient evidence to grant relief.

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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 4 of the regulation stated a Soldier would be separated upon expiration of enlistment or fulfillment of service obligation.  Soldiers of the ARNG and U.S. Army Reserve ordered to active duty for a period in excess of 90 days would, upon release from active duty, revert to control of the appropriate Reserve Component.  A Soldier being separated upon expiration of enlistment or fulfillment of service obligation would be awarded a character of service of honorable, unless the Soldier was in entry-level status and service was uncharacterized.

2.  AR 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for preparation of the DD Form 214 and stated the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  The regulation stated:

* Item 25 – would list the regulatory authority for the separation
* Item 26 – would list the corresponding Separation Program Designator (SPD) code for the regulatory authority and reason for separation
* Item 28 – would list the reason for separation based on regulatory or other authority

3.  AR 635-5-1 (SPD Codes), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation stated the reason for discharge based on SPD code LBK (involuntary release from active duty or transfer) was completion of required active service and the regulatory authority was AR 635-200, chapter 4.  

4.  AR 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement).  Once a determination of physical unfitness is made, the Physical Evaluation Board would rate all disabilities using the VA Schedule for Rating Disabilities (VASRD).  Ratings can range from 0% to 100%, rising in increments of 10%.

5.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, prescribed policy and implements the requirements of chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code (USC).  The regulation stated:

     a.  The mere presence of a medical impairment did not in and of itself justify a finding of unfitness.  In each case, it was 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.  A Soldier was physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

     b.  Based upon the requirements of section 1203 of chapter 61, Title 10, USC, states Soldiers, not otherwise eligible for military retirement, with a disability not the result of intentional misconduct or willful neglect, and with less than a 30 percent disability rating, will receive severance pay.

     c.  The VASRD was primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Because of differences between Army and VA applications of rating policies, differences in ratings could result.  Unlike the VA, the Army must first determine whether or not a Soldier was fit to reasonably perform the duties of his office, grade, rank, or rating.  Once a Soldier was determined to be physically unfit for further military service, percentage ratings were applied to the unfitting conditions from the VASRD.  Those percentages were applied based on the severity of the condition at the time of separation.  

6.  Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.


ABCMR Record of Proceedings (cont)	 AR20170007164


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