RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20080001131 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



Member
	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 medically retired.  

2.  The applicant states, in effect, he was not properly discharged from active duty on 3 February 1995, and as a result, he is not receiving military retirement.  He states that his discharge should be corrected to medical retirement and would like the Army to accept the Department of Veterans Affairs’ (VA) disability rating of 90 percent (%), which he received because he is not employable.  He states that the Army clearly knew about his injury prior to his 1995 discharge because he was injured during an Army Physical Fitness Test (APFT) in November 1994, while he was on active duty.  He states he was not held on active duty for his injury to be evaluated and was instead wrongfully discharged.  He states the VA has since rated his disability at 90%, as of 2003, and he would like to receive concurrent VA disability and military retirement.  

3.  The applicant provides the following documents in support of his application:  Active Duty Orders, dated 27 September 1994; United States Army Medical Department Activity (AMEDDAC), Fort McClellan, Alabama, Letter, dated 
18 January 1995; VA Rating Decision, dated 2 November 2001; and Military Medical Treatment Records during the period 1994-1995.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that after having served in the Army National Guard (ARNG) in an enlisted status from 24 September 1985 through 22 July 1994, he was appointed a Reserve second lieutenant (2LT) in the ARNG.


3.  The applicant was ordered to active duty to attend the Military Police (MP) Officer Basic Course (OBC) at Fort McClellan, entered active duty on 
1 October 1994, and successfully completed the course on 2 February 1995.

4.  On 3 February 1995, the applicant was honorably released from active duty for training and was returned to his ARNG unit.  The separation document he was issued at the time shows he completed 4 months and 3 days of active duty service during the period covered by the report and that he was REFRAD by reason of completion of required service.

5.  The applicant's Official Military Personnel File (OMPF) is void of any indication that the applicant suffered a disqualifying physical injury that would have supported his separation processing through medical channels during his period of active duty service between 1 October 1994 and 3 February 1995.

6.  On 11 August 1996, the applicant was honorably discharged from the ARNG, by reason of medical disqualification.  The medical documentation used for making this medical unfitness determination is not on file in the applicant's OMPF.    

7.  The applicant provides a memorandum from the AMEDDAC, Fort McClellan, dated 18 January 1995, which provided instructions and authorization for follow-up care on the applicant.  The letter indicates the applicant was diagnosed with severe back pain as a result of an injury he incurred on 3 November 1994, and which instructed the applicant to contact the office of the Chief, Patient Administration at the Naval Hospital, Oakland, California, for follow-up medical care.  The memorandum gives no indication that the condition was medically permanently disabling or disqualifying from further active duty service, or that it was sufficient to support his separation processing through the Army's Physical Disability Evaluation System (PDES).   

8.  The applicant also provides medical treatment records from the Naval Medical Center, Oakland, California, which show he was treated for back pain through May 1995.  These documents contain no confirmation that the condition for which he was being treated was unfitting for further military service.  The applicant does not provide the medical documents that led to the ARNG’s unfitness determination that resulted in his 1996 discharge from the ARNG.  

9.  In addition, the applicant provides a VA rating decision that indicates the applicant's disability rating for degenerative disc disease, degenerative joint disease, and lumbosacral spine was increased to 60% on 1 January 2001, that 
his disability rating for brachioplexopathy, right upper extremety was increased to 40%, and that he was granted service connection for pain disorder with depressed mood with a 50% disability rating as of 20 December 2000.  It also indicated that the applicant had a combined disability rating of 90% and that unemployability was granted as of 16 February 2001.  The rating decision indicates that the evidence supporting the ratings were delineated in rating actions of 14 April 1995, 18 March 1996, and 13 August 1998; however, there is no indication what the rating percentages were when the disability ratings were first awarded or when they were first awarded for each of the conditions identified.  

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

11.  Chapter 3 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presences of an 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

12.  Paragraph 3-2 of the disability regulation contains guidance on fitness presumptions.  It 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.  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.  

13.  The same regulation further states that the presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  

14.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

15.  Title 38, United States Code, 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was improperly REFRAD in 1995, and should instead have been medically retired was carefully considered.  However, there is insufficient evidence to support this claim.  


2.  By regulation, the mere presence of an 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  The regulation stipulates 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.  

3.  The evidence of record in this case shows that the applicant appears to have suffered an injury in November 1994, and that he continued to perform his active duty service through 3 February 1995, at which time was honorably REFRAD by reason of completion or required active duty service upon his successful completion of the MP OBC.  The evidence of record contains no indication that the injury the applicant suffered disqualified him from further active duty service, or that it was sufficiently disabling to support his processing through the Army's PDES at the time of his REFRAD, as evidenced by the fact that he continued to perform his duties and successfully completed the MP OBC prior to REFRAD and return to his ARNG unit.  As a result, given the fact he successfully completed his active duty service after sustaining the injury in question, it appears he was medically qualified for retention at that the time of his REFRAD.  

4.  The medical treatment records provided by the applicant outline the medical treatment he underwent while he was on active duty, and that he received as follow-up treatment after his REFRAD and return to his ARNG unit.  However, these treatment records fail to show he had a physically disabling condition that would have warranted his separation processing through the PDES at the time of his REFRAD.  

5.  The applicant is advised that 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards applied by military medical authorities at the time of his REFRAD.  As a result, the VA is the appropriate agency to provide him medical treatment and disability compensation for service connection medical conditions that were not found permanently disabling at the time of his REFRAD.  

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _________x_____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001131



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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ARLINGTON, VA  22202-4508