ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20180000783 APPLICANT REQUESTS: in effect, entrance into the physical disability evaluation system so that her 26 December 2005 DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was medically retired. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * social security card * medical records * Air Force (AF) Form 3899 (Aeromedical Evacuation Patient Record), dated 18 November 2005 * DA Form 4256 (Clinical Record – Doctor’s Orders * Joint Theater Trauma Nursing Record, dated 17 November 2005 * Patient Movement Request – Non-battle injury * DA Form 2984 (Very Seriously Ill/Seriously Ill/Special Category Patient Report) dated 19 November 2005 * Medical Command Form 685 (Medical Record – Admission Assessment) * DA Form 4678 (Therapeutic Documentation Care Plan), dated November 2005 * Orders 328-222, dated 24 November 2005 * DA Form 4856 (Developmental Counseling Form), dated 28 November 2005 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 6 December 2005 * Orders 342-0008, dated 8 December 2005 * DD Form 214 for the period ending 26 December 2005 * Orders 5-1, dated 5 January 2006 * Portsmouth (New Hampshire) Emergency Room Visit, dated 9 January 2006 * Department of Veterans Affairs (VA) letter, dated 3 February 2006 * Letter, dated 10 February 2006, Disabled American Veterans * VA Form 3288 (Request For and Consent to Release of Information from Individual’s Records), dated 19 August 2008 * VA letter, dated 12 July 2016 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 AR20090007933 dated 17 September 2009. 2. The applicant states, in effect, she suffered a brain injury when she served in Iraq. When she returned by aeromedical evacuation to the continental United States she was still in a daze and effected by the brain injury. The doctors and the commanders wanted to just rush her home and they did not understand the implications or the magnitude of a traumatic brain injury (TBI). She still suffers from headaches and seizures. To this day, she has not been able to work and is considered unemployable by the VA. 3. The applicant provides new medical evidence both in-service and post-service and additional personnel records warranting consideration by the Board. 4. The applicant, as a member of the Massachusetts Army National Guard (MAARNG) was mobilized in support of Operation Iraqi Freedom on 23 October 2004. She subsequently served in Kuwait and Iraq from 19 December 2005 to 25 November 2005. 5. While in Iraq on 29 October 2005, she enlisted in the Regular Army for 3 years. The additional details of her DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows she enlisted for a $3,000 bonus in accordance with All Army Activities (ALARACT) Message 186-2005. The U.S. Army Human Resources Command (AHRC) provided her and her recruiting official with an approval memorandum. [Military Personnel (MILPER) Message Number 05-143 authorized Reserve Component (RC) Soldiers serving on active duty to enlist in the Regular Army (RA) for a period of 3 years or more. Upon return to the continental United States at the demobilization station, they would then comply with their permanent change of station orders to their new Active Component (AC) duty station.] 6. On 17 November 2005 while riding in a military passenger bus, she suffered a concussion causing her to lose consciousness when a Kevlar helmet fell on her head. She was immediately taken to the airfield emergency room for medical treatment and eventual aeromedical evacuation was initiated back through medical channels ultimately to Fort Dix, New Jersey. 7. On or about 28 November 2005, a developmental counseling form documents the fact she was interviewed and counseled at the Medical Retention Processing Unit at Fort Drum, New York. She was advised she was to attend all formations and to wear the proper uniform. She would be assigned to a barracks room and would be responsible for its maintenance. She would be assigned to a work area while in the unit and would advise her first line supervisor of all her appointments. 8. On 6 December 2005, a DA Form 2173 was initiated showing she was injured on 18 November 2005 [17 November 2005] when a Kevlar helmet hit her head. The officer completing the form indicated her injury was considered a temporary disability. Her line of duty was approved by a Secretarial authority. 9. On 8 December 2005, Headquarters, U.S. Army Fort Dix, Fort Dix, New Jersey issued the applicant orders releasing her from active duty, not by reason of physical disability, effective 26 December 2005. Her orders state she was eligible for transitional health care under Title 10, U.S. Code, section 1145 until 24 June 2006. 10. On 26 December 2005, she was discharged accordingly and transferred to her Army National Guard unit in Milford, Massachusetts. She was issued a DD Form 214 showing she served for 11 months and 7 days of overseas service in Iraq and had been on active duty for 1 year, 2 months and 4 days. Her DD Form 214 was prepared and she acknowledged receipt of the form at Fort Dix, New Jersey. Her DD Form 214 contains the following pertinent data: * Block 23 (Type of Separation) – release from active duty * Bock 24 (Character of Service) – honorable * Block 25 (Separation Authority) – Army Regulation 635-200, chapter 4 * Block 28 (Narrative Reason for Separation) – completion of required active service 11. On 5 January 2005, the MAARNG headquarters issued Orders 5-1 discharging the applicant from the Army National Guard effective 27 December 2005. The authority for her honorable discharge was National Guard Regulation 600-200, paragraph 8-26a (2) and verbal orders of the State Adjutant General. 12. As evidence to support her application, she provides detailed medical evidence showing the medical treatment she received, medications prescribed, and aeromedical evacuation documents supporting her medical evacuation including movement orders. Her injury was consistently identified as a concussion wherein she did lose consciousness when initially injured and was intubated. 13. She provides additional evidence showing – * on 9 January 2006, she sought medical treatment for recurring active seizure [do to not taking seizure medication] * on 3 February 2006, a medical doctor at the VA stated the applicant had several episodes of unexplained loss of consciousness since her initial injury; she underwent an echoencephalograph (EEG) which was abnormal and suggestive of epilepsy (emphasis added) * on 24 September 2006, she sought treatment at a private hospital for seizures * on 23 April 2008, an EEG was normal with no acute intracranial processes noted or intracranial hemorrhage, infraction or intracranial mass lesion * on 6 November 2009, she was discharged from the VA medical center for acute deep vein thrombosis of her right lower extremity, with a secondary diagnosis of pseudoseisures and anemia 14. On 17 September 2009, the ABCMR denied her request to change her narrative reason for separation on her DD Form 214 to show a medical discharge. There was no regulatory requirement for her to enter the physical disability evaluation system at the time. 15. On 27 February 2019, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions (mild traumatic brain injury (TBI)/concussion, post-concussion syndrome (headaches, dizziness, etc.) and there was no indication for physical disability evaluation system processing (medical evaluation board (MEB)/physical evaluation board (PEB)). He stated there was no available evidence supporting a change to her narrative reason for separation. Post-service the VA diagnosed her with seizures, pseudoseizures, headaches, TBI, major depression and post-traumatic stress disorder (PTSD). She is currently rated zero present for TBI and 20 percent for seizures with no clear diagnosis of epilepsy found. Her other ratings are 70 percent for PTSD, loss of an eye zero percent, traumatic brain disease at zero percent and migraine headaches at zero percent based on a review of the Joint Legacy Viewer (VA records). A copy of the complete medical advisory was provided to the Board for their review and consideration. 16. The applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. She responded to the advisory opinion on 27 March 2019 by email. She also provided new evidence to support her argument that her discharge from active duty was unfair and unjust. a. She states, in effect, someone failed to follow through with her paperwork after her head injury. She states she was attached to the MAARNG, but she belonged to the RA because while she was in Iraq she transferred to the RA on 24 October 2005. She had permanent change of station orders to report to Fort Hood, Texas on 17 January 2006. b. She claims that instead of processing her through the physical disability evaluation system and providing her a medical discharge, she was separated as if her expiration of term of service had occurred. Her expiration of her term of service for her Army National Guard enlistment was in 2011. She states, "That’s where the prejudice occurred, both entities Regular Army and Army National Guard did not want to deal with the hassle attached to [her] paperwork." She claims no one cared that she had just suffered a concussion and had seizures and migraine headaches. c. As part of the standard operating procedure in the area of operations, each service member was required to complete a DD Form 2796 (Post Deployment Health Assessment (PDHA). In the advisory the medical doctor noted the applicant completed two PDHAs on 19 October 2005 and 5 November 2005 prior to her unit’s scheduled departure from Iraq. She states the two PDHAs did not reflect her head injury because she was injured on 17 November 2005. She acknowledges she did not see anyone that was dead, injured or killed in action nor was she engaged in direct combat. However, at Forward Operating Base Warrior in Kirkuk they received numerous mortar attacks almost on a daily basis. Her unit was a personnel services detachment and it was responsible for preparing casualty reports. She was responsible for also tracking the wounded Soldiers through the hospital evacuation process. She states, "I have names of soldiers whole files, I tracked and handled, their names are stamped in my mind forever. I still have nightmares about my time in Iraq." d. She provides names of Soldiers who were wounded in action in support of her argument. She also states she was impacted by participating in ceremonies on the airfield (known as ramp ceremonies) for those killed in action. e. She recounts the incident of 17 November 2005 when she was a passenger on a bus, being hit in the head by a Kevlar helmet and then recalls waking up in Germany. She does not recall the aeromedical evacuation. Notwithstanding that fact, she knows she had no pulse and that they had to resuscitate her. She asserts she died that day. f. She states the advisory failed to consider the fact she did not separate because she wanted to or that she had reached her expiration of her term of service, she was abruptly discharged after suffering from a head injury. She still suffers from repercussions of her head injury. She asserts "the entities" did not want to properly process her through the appropriate channels. She states, "How can the advisor say that I clearly met medical standards on separation when…I was deemed unfit to be in the Army." She asserts she was discriminated against when someone did not do the paperwork they were supposed to do. She was RA and was on orders to Fort Hood, Texas, when she was forced out without the benefit of processing through the disability evaluation system. g. She provides the names of persons whom the Board should contact, new witness statements, and additional evidence to support her contentions. She appeals to the Board, "Check every angle on [her] case." * Letter, U.S AHRC, dated 30 September 2005, subject: Request for Enlistment of Mobilized RC [Reserve Component] into the Regular Army – [Applicant] * Orders 363-14 issued by U.S. Army Human Resources Command, dated 29 December 2005 * Orders 363-14A01 issued by U.S. Army Human Resources Command, dated 11 January 2006 * digitally signed statement from Marxx C. Laxxx, dated 12 March 2019 * unsigned statement from LaTxxx A. Guzxxx, dated 12 March 2019 * unsigned statement from Geoxxx Broxxx, dated 13 March 2019 * unsigned statement from Sergeant First Class Marxx Graxxx, undated * unsigned statement from Tixxx Forxxx, undated * unsigned statement from Johxxx D. LaRxxx, dated 13 March 2019 * pictures of a Soldier wearing a Kevlar (1) She provides the approval memorandum from AHRC, dated 30 September 2005, informing her she was approved to enlist in the RA in the grade of E-4 in her primary occupational specialty in accordance with MILPER Message 05-143. She was told she would not have a break in service (emphasis added). Instructions for the applicant to follow on how to process from RC to AC were provided within the memorandum. It states, "Once a Soldier enlisted in the Regular Army, the soldier will remain with his/her current deployed unit until it redeploys to the demobilization station, then he/she will PCS [permanent change of station] upon completion of out processing from his/her home unit." Further instructions told her to report to Fort Hood, Texas. (2) Orders 363-14, dated 29 December 2005, issued by AHRC directed the applicant’s PCS to Fort Hood, Texas with a reporting date of 17 January 2006. Instructions within the order stated she was authorized permissive temporary tour of duty (PTDY) from 27 December 2005 to 10 January 2006. This order was amended on 11 January 2006 changing her reporting date to 6 February 2006 and adjusting her PTDY dates. (3) Marxx C. Laxxx presented a digitally signed statement attesting to the applicant’s injury on 17 November 2005. Their unit was in the final phase of redeploying after completing their tour of duty in support of Operation Iraqi Freedom. The unit was near an airfield awaiting transportation to Kuwait. On short notice, the unit boarded a bus with their soft caps and some members stored their Kevlar helmets in the overhead storage bins. On the way to the airport the bus suddenly veered off abruptly causing Soldiers uniform gear to fall. A Kevlar helmet fell onto the applicant’s head. A unit leader assessed the situation and ordered the bus to go to the airfield medical facility. She was removed from the bus and medically evacuated to another facility. (4) The other statements are not signed or authenticated. Each is typed. Each statement attests to how the applicant was injured on 17 November 2005 while a passenger in a bus and that a Kevlar helmet fell onto her head causing her to lose consciousness. Each defines the trauma as "severe." They understand she was medically evacuated to the continental United States and that she suffers from headaches and dizziness. Some attest to the fact she reenlisted for the RC/AC option while in Iraq in October 2005, but none know why her active duty orders to Fort Hood, Texas were cancelled or terminated. Each person wants the Board to know she was in excellent health prior to the accident and she was an outstanding Soldier. Some convey that since her orders were terminated, it must have been due to her health and she should be processed through the disability evaluation system. 17. In summary, the applicant was in the RC and mobilized to support Operation Iraqi Freedom in 2004. In October 2005, while mobilized she enlisted in the RA in a RC/AC incentive program wherein she would continue on active duty as a member of the RA upon her return to the continental United States from Iraq. Prior to her return on 17 November 2005 she was very seriously injured sustaining a concussion requiring her incubation and aeromedical evacuation from Iraq, through Walter Reed Army Medical Center ultimately to Fort Drum, New York. On 26 December 2005, for unknown reasons Fort Dix published demobilization orders for a RA Soldier and issued her a DD Form 214. Concurrently, her RC unit higher headquarters published orders discharging her from the MAARNG effective 27 December 2005 (because she had enlisted in the RA). By letter on 3 February 2006, a VA medical doctor informed military authorities at Fort Hood that she had several episodes of unexplained loss of consciousness following her 17 November 2005 concussion. The doctor said she had undergone an EEG which was abnormal and suggestive of epilepsy. There is no record showing she reported to Fort Hood as required by PCS orders. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. Based upon the medical advisory’s finding that there was no available evidence to support changing the narrative reason for separation, the Board concluded there was insufficient evidence to warrant changing the narrative reason for separation. 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 635-40 (Physical Evaluation for Retention, Retirement, or Separation) in effect at the time, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 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 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. 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. 2. Army Regulation 40-501 (Standards of Medical Fitness) provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a PEB. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Army. Physicians are responsible for referring Soldier with conditions listed in chapter 3 to an MEB. a. Paragraph 3-19 states the cause for referral to an MEB for a head injury are loss of substance of the skull with or without prosthetic replacement when the wearing of protective gear is interfered with. (The wearing of protective head gear is a requirement for the performance of soldierly tasks normally found in field and combat environments.) b. Paragraph 3-30 states there are numerous neurological disorders requiring referral to an MEB. Paragraph 3-30f, in effect at the time, stated migraine, tension, or cluster headaches, when manifested by frequent incapacitating attacks could be cause for referral to an MEB. Paragraph 3-30i refers to seizure disorders and epilepsy stating seizures by themselves are not disqualifying unless they are a manifestation of epilepsy. However, they may be considered along with other disabilities in judging fitness. One must be evaluated by a neurologist. Additionally, pseudoseizures are disqualifying under the same rules as epilepsy. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The Board is not an investigative arm of the Army and does not have investigative jurisdiction within Department of the Army. 4. MILPER Message Number 05-143, dated 2 June 2005, provided the following implementing instructions for Enlistment of Mobilized U.S. Army Reserve or Army National Guard of the United States (ARNGUS) Soldiers into the RA. The seamless transfer of RC Soldiers to the RA is consistent with the Continuum of Service Concept. The message states, in effect, that: a. RC Soldiers, with less than 18 years of service, may apply to transfer from the RC to RA anytime within 6 months of their projected demobilization or release from active duty date, to include at the demobilization station. Additionally, Soldiers, who have out processed from the demobilization site but are granted leave in route to their parent unit or who are on terminal leave may also apply for enlistment in the RA under this policy prior to the end date of their leave, as they have not been released from active duty. b. Soldiers who apply at the mobilization station will be placed on Active Duty for Special Work-Active Component (ADSW-AC) orders (formerly TTAD [Temporary Tour of Active Duty]) extending them on active duty until the application is processed. c. If a RC Soldier is the recipient of an enlistment/reenlistment incentive (bonus), and is in the process of fulfilling the service obligation required by the incentive, he or she will be notified that the unearned incentives may be subject to statutory recoupment on a pro-rata basis upon enlistment into the RA: d. Grade determination is not required for mobilized RC Soldiers. These Soldiers will enlist into the RA at their current rank. ABCMR Record of Proceedings (cont) AR20180000783 4 1