RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20060011240 


	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 his transfer to the Retired Reserve be revoked, his case be referred to a Medical Evaluation Board (MEBD), the MEBD refer him to a Physical Evaluation Board (PEB), and the PEB determine that he receive a permanent disability retirement.  The applicant further requests 30 percent for his right knee, 30 percent for his back, and concurrent receipt of retired pay (CDRP).  The applicant further requests tax exclusion on his disability retirement pay.

2.  The applicant states, in effect, he injured his right knee and back on 
7 December 2002 during a weekend drill.  The applicant then goes to describe in great detail his injury, the details leading up to his injury, and subsequent events following his injury.

3.  The applicant provides a copy of excerpts from his military service and medical records, excerpts from his Department of Veterans Affairs (DVA)  treatment records, and his DVA Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he completed two periods of active service in the Regular Army from 6 December 1983 to 3 December 1986 and from 25 March 1987 to 18 April 1995.  He enlisted in the U.S. Army Reserve (USAR) on 30 August 1995 and served until his transfer to the Retired Reserve on 22 March 2004.

2.  The applicant’s injury to his right knee on 7 December 2002 and re-injury on 16 March 2003 are well documented throughout the applicant’s service medical records.  The medical records also document treatment for the applicant’s back.

3.  The applicant was on temporary profile due to right knee pain from 
11 February 2003 to 24 July 2003.

4.  A Report of Investigation, Line of Duty and Misconduct Status, dated 
21 October 2003, found the injury to the applicant’s right knee was in line of duty. 

5.  A Non-commissioned Officer Evaluation Report (NCOER) for the period from December 2002 through November 2003 showed the applicant’s daily duties included planning and conducting training in physical conditioning, hand to hand combat and individual and small unit tactics.  The NCOER shows the applicant’s physical fitness and military bearing needed improvement and commented that the applicant possessed the physical stamina and endurance to go the distance.  
6.  Further comment in the NCOER showed the applicant’s profile did not hinder duty performance.  The applicant was rated successful in overall performance and superior in overall potential for promotion and/or service in positions of greater responsibility.  The applicant’s assigned military occupational specialty (MOS) was 55B (ammunition specialist) and his principle duty was senior drill sergeant with a duty MOS of 11B (infantryman).

7.  An NCOER for the period from December 2003 through February 2004 shows the applicant’s daily duties included planning and conducting training in physical conditioning, hand to hand combat and individual and small unit tactics.  The NCOER shows the applicant met all the standards for physical fitness and military bearing and commented the applicant had strong stamina, the will to win, and that he obtained a passing score on his Army Physical Fitness Test.  The applicant was rated successful in overall performance and superior in overall potential for promotion and/or service in positions of greater responsibility.  The applicant’s assigned MOS was 55B and his principle duty was senior drill sergeant with a duty MOS of 11B.

8.  A letter from U.S. Army Human Resources Command (HRC), St. Louis, Missouri, dated 17 December 2003, notified the applicant he had completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60.

9.  The applicant was transferred to the Retired Reserve on 22 March 2004 with 20 years, 4 months, and 24 days of qualifying service for retirement.

10.  DVA medical records show the applicant is being treated for residuals of the right knee injury and medications he is currently prescribed.  DVA Regional Office, Winston-Salem, North Carolina letter, dated 6 January 2006, shows the applicant receives disability compensation from the DVA and is rated permanently and totally disabled since 1 December 2003.

11.  DVA Regional Office, Winston-Salem, North Carolina letter, dated 17 May 2006, shows the applicant has service-connected disabilities which are rated 
100 percent disabling.

12.  A DVA Rating Decision, dated 25 May 2006, defers a decision on entitlement to compensation for arthritis due to the applicant’s right knee injury.

13.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation 
40-501 (Standards of Medical Fitness), as amended, provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.  

14.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

15.  Army Regulation 635-40 states, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments.  All relevant evidence must be considered in evaluating the fitness of a member.  When a member is referred for physical evaluation, evaluations of the performance of duty by supervisors may provide better evidence than a clinical estimate by the Soldier's physician describing the physical ability to perform the duties of the office, grade, rank, or rating.  Thus, if evidence establishes that the Soldier adequately performed the normal duties of his or her office, grade, rank or rating until the time of referral for physical evaluation, the Soldier might be considered fit for duty, even though medical evidence indicates the Soldier's physical ability to perform such duties may be questionable. 

16.  Title 38, United States Code, permits 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 the Army not separating the individual for physical unfitness.  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.  
 
17.  The Fiscal Year 2004 National Defense Authorization Act provided a 10-year phase-out of the offset to military retired pay due to receipt of Department of Veterans Affairs (DVA) disability compensation for members whose combined disability rating is 50% or greater.  This provision is referred to as Concurrent Retirement and Disability Pay (CRDP).  Members retired under disability provisions (10 U.S. Code chapter 61) must have 20 years of service.

18.  Combat-Related Special Compensation (CRSC), as established by 
Section 1413a, Title 10, United States Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it wasn’t for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disabling.  For periods before 1 January 2004 (the date this statute was amended), members had to have disabilities for which they have been awarded the Purple Heart and are rated at least 10% disabled or who are rated at least 60% disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.

DISCUSSION AND CONCLUSIONS:

1.  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.  

2.  There is no evidence of record and the applicant has not submitted any evidence to show he was unable to perform his normal duties due to his medical condition.  The applicant’s last two NCOER’s clearly showed he was able to perform his prescribed duties in his assigned MOS as a drill sergeant.  

3.  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 employability.  Accordingly, it is not unusual for the DVA to award a veteran a disability rating when the veteran was not separated due to physical unfitness.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.

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

5.  In order to receive CDRP the applicant must be currently receiving retirement pay based on more than 20 years service.  The applicant will not receive retired pay until he applies for it at age 60.  Therefore, there is no entitlement to CDRP until the applicant begins receiving retirement pay at age of 60.

6.  In order to receive CRSC the applicant must have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war and be currently receiving retirement pay based on more than 20 years service.  The applicant will not receive retired pay until he applies for it at age 60.  Therefore, he may apply for CRSC when he begins receiving retirement pay at age 60.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____jea _  ___jlp___  ___jbm __  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.





________James E. Anderholm___________
          CHAIRPERSON




INDEX

CASE ID
AR20060011240
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070626
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.

2.

3.

4.

5.

6.