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Decision Text

ARMY | BCMR | CY2003 | 2003090780C070212
Original file (2003090780C070212.rtf) Auto-classification: Denied




RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: MARCH 11, 2004
         DOCKET NUMBER: AR2003090780


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun Director
Mr. Jessie B. Strickland Analyst


The following members, a quorum, were present:

Mr. John N. Slone . Chairperson
Mr. Patrick H. McGann Member
Ms. Mae M. Bullock Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:


1. The applicant requests, in effect, that he be retired by reason of physical disability.

2. The applicant states, in effect, that he should have been retired by reason of physical disability rather than discharged at his expiration of term of service (ETS); however, because of the lack of cooperation from his doctors such did not occur.

3. The applicant provides copies of his Department of Veterans Affairs (VA) clinical records, his United States Army Reserve (USAR) line of duty (LOD) findings, and the results of his USAR board.

CONSIDERATION OF EVIDENCE:

1. He enlisted in the Regular Army on 15 November 1988 and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-5 on 1 March 1996.

2. On 29 May 2000, while serving as a medical sergeant at Fort Campbell, Kentucky, he was honorably discharged due to completion of required service (ETS). He had served 11 years, 6 months and 15 days of total active service and was given a separation code of "KBK" indicating that he was fully eligible for reenlistment and that his separation was voluntary. He was also given a Reentry (RE) Code of "1."

3. He enlisted in the USAR for a period of 6 years and was assigned to a USAR Hospital/Troop Program Unit in Milwaukee, Wisconsin.

4. On 29 December 2000, the applicant was granted a combined 60%
service-connected disability rating from the VA.

5. On 3 March 2001, the applicant's commander submitted a request for a fitness for duty determination to be conducted in order to determine the applicant's fitness for duty. The commander expressed his concern for the applicant's deployability and indicated that he had significant medical problems in orthopedics and rheumatology.

6. On 8 January 2002, the commander notified the applicant that as a result of his medical examination, he was determined to be medically disqualified for further USAR service. The commander explained the applicant's election options in the same memorandum and informed him that he had 30 days in which to make an election or be discharged with an Honorable characterization of service.
7. The available records do not indicate what option he elected; however, they do show that he was honorably discharged from the USAR on 3 April 2002, under the provisions of Army Regulation 135-178.

8. Although the applicant's separation physical/medical examination conducted prior to his discharge from active duty is not present in the available records, his noncommissioned officer evaluation reports show that he was physically fit and that he passed his Army Physical Fitness Tests with high scores. The majority of his ratings were rated as "Excellent."

9. Title 38, United States Code, sections 310 and 331, 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.

DISCUSSION AND CONCLUSIONS :

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The evidence of record indicates a presumption of fitness at the time the applicant was discharged on his ETS because he was receiving excellent evaluation reports and would not have been eligible for discharge had he not been deemed fit for separation/retention. Furthermore, he would have had to establish his fitness in order to enlist in the USAR as well.

3. The VA assigns disability ratings and awards compensation in accordance with its own policies and regulations solely on the basis that a medical condition exists and that the said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The Army determines standards of unfitness because of physical disability by comparing 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.

4. Accordingly, because the applicant was performing his duties as required and any disabilities he may have had were not serious enough to impair his duties or be referred to the disability system, he was deemed to be fit for retention and/or separation. Accordingly, he was properly discharged on his ETS because he elected not to reenlist.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

jns _____ phm _____ mmb ____ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  ___John N. Slone___
                  CHAIRPERSON




INDEX

CASE ID AR2003090780
SUFFIX
RECON YYYYMMDD
DATE BOARDED 20040311
TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE YYYYMMDD
DISCHARGE AUTHORITY AR . . . . .
DISCHARGE REASON
BOARD DECISION (DENY)
REVIEW AUTHORITY
ISSUES 1.108.0000 177/PD
2.
3.
4.
5.
6.


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