RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060010192 


	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.  


	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 granted a disability retirement from the United States Army, and be given all benefits and entitlements that coincide with a military retirement due to disabilities. 

2.  The applicant essentially states that the Department of Veterans Affairs (DVA) granted him a combined 70 percent disability for injuries that occurred during combat, and that the effective date of this award was 1 January 2006, the day after his discharge.

3.  The applicant provides his 29-page DVA rating, dated 21 June 2006, in support of this application.  Although the applicant stated that he also submitted his DD Form 214 (Certificate of Release or Discharge From Active Duty), it was not among the documents received with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 
31 December 2005, the date of his discharge from the Regular Army.  The application submitted in this case is dated 13 July 2006.

2.  The applicant was honorably discharged from the Regular Army on 31 December 2005 after completing 15 years, 3 months, and 17 days of continuous active duty service.  Item 28 (Narrative Reason for Separation) of his DD Form 214 that was issued at the time of his discharge has an entry of “Completion of Required Active Service.”  There is no evidence in the applicant’s military records which shows that he was not fully eligible to reenlist prior to his discharge.  

3.  Although the applicant’s last Noncommissioned Officer Evaluation Report (NCOER) covering the period March 2005 through December 2005 essentially indicated he possessed a physical profile, there is no evidence in his official military personnel file (OMPF) of a physical profile.  It is not known if the physical profile mentioned in that NCOER was a permanent profile or a temporary profile.  Regardless, the applicant’s rater on this NCOER clearly stated that his profile did not hinder his duty performance.

4.  There is no record of the applicant being before any board within the Army Physical Disability Evaluation System.

5.  The applicant’s OMPF does not contain a Standard Fort 88 (Report of Medical Examination) conducted in conjunction with his discharge on 31 December 2005. 
6.  The applicant provided his DVA rating, dated 21 June 2006.  This document essentially granted him a combined service connected disability rating of 70 percent for Posttraumatic Stress Disorder, Lumbosacral Instability at L5-S1, Residuals Fracture Right Ankle, Bilateral Elbow Bursitis, Cervical Strain, Tinnitus, Residuals Tubinectomy, Residuals Right Wrist Fracture, Bilateral Hearing Loss, Obstructive Sleep Apnea, Residuals Left Inguinal Hernia Repair, Scars to Face, Right Leg and Foot, and Left Leg, and Psoriasis.  

7.  The applicant did not provide any evidence which shows that any of the conditions for which the DVA awarded him disability compensation affected his ability to perform his military duties.
 
8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.

9.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be granted a disability retirement from the United States Army, and should be given all benefits and entitlements that coincide with a military retirement due to disabilities. 

2.  While the Board does not doubt the veracity of the applicant’s claim to entitlement to a disability retirement, evidence of record clearly shows that he successfully performed military duties commensurate with his rank and grade until he was honorably discharged at the completion of his required active service.  Evidence of record also shows that he was eligible for reenlistment, but chose to be discharged from the Army at the end of his enlistment.  Absent evidence which conclusively shows that he could not continue to reasonably perform his military duties because of a physical disability incurred or aggravated in service, there is no basis for granting the applicant a disability retirement in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___J____  __LDS___  _RSV___  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.





___Linda D. Simmons__________
          CHAIRPERSON


INDEX

CASE ID
AR20060010192
SUFFIX

RECON

DATE BOARDED
20070322
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
110.0200.0000
2.
108.0000.0000
3.

4.

5.

6.