IN THE CASE OF:	  

		BOARD DATE:	        29 July 2008

		DOCKET NUMBER:  AR20080005336 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his military records to show that he was medically retired; that he has 22 years of creditable military service; that he was awarded the Meritorious Service Medal, Korean Service Medal, and the Global War on Terrorism Expeditionary Medal. 

2.  The applicant states that he wants his discharge reviewed and changed to a medical retirement.  He contends that the Physical Evaluation Board (PEB) failed to consider all of his medical disabilities.  He also feels that the PEB did not consider his 20-year letter for retirement eligibility.

3.  The applicant provides copies of his medical records, Meritorious Service Medal Recommendation, Notification of Eligibility for Retired Pay at Age 60 
(20-Year Letter), Department of Veterans Affairs (VA) Decision Letter, and his Certificate of Release or Discharge from Active Duty (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  On 12 November 1980, the applicant enlisted in the United States Army Reserve (USAR).  On 19 December 1980, he entered the Regular Army and served on active duty until 6 December 1984.  He enlisted in the Army National Guard on 7 December 1984 and served until 14 May 1987.  

2.  On 15 May 1987, the applicant was commissioned.  He served in the Regular Army as a commissioned officer during the period from 19 September 1987 until 28 September 1990.  He served in the USAR from 12 November 1990 until his discharge from active duty as a USAR commissioned officer on 27 October 2005. He had attained the rank of major.  

3.  Permanent Orders Number 65-1, Headquarters, United States Army Recruiting Command, Fort Knox, Kentucky, dated 6 March 2003, awarded the applicant the Meritorious Service Medal for exceptionally meritorious service as the Battalion Marketing Intelligence Officer for the Tampa, [Florida] Recruiting Battalion.

4.  The applicant's DD Form 214, effective 27 October 2005, shows that the applicant was discharged due to a physical disability and received severance pay.  Item 12 (Record of Service) shows that he completed a total of 22 years, 
7 months, and 10 days of creditable military service. 

5.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the Parachutist Badge, Army Commendation Medal, Army Achievement Medal (two awards), Army Good Conduct Medal, National Defense Service Medal (two awards), Army Service Ribbon, Overseas Service Ribbon, Air Assault Badge, Global War on Terrorism Service Medal, Armed Forces Reserve Medal (1st Hourglass Device), Driver and Mechanic Badge with Driver-W Bar.  It does not show award of the Korean Service Medal, Meritorious Service Medal or the Global War on Terrorism Expeditionary Medal.

6.  In the processing of this case, an advisory opinion was obtained from the Agency Legal Advisor, United States Army Physical Disability Agency, Washington DC.  It stated that the applicant's Medical Evaluation Board (MEB) was completed on 18 May 2005.  The diagnosis was hypercoagulable state with pulmonary embolus and deep vein thrombosis; diabetes; and hyperuricernia and gouty flares.  The applicant concurred with the MEB findings on 25 June 2005.  The MEB also showed that the applicant was taking Coumadin daily for his hypercoagulable state, which was his main complaint.  His other conditions appeared well controlled and stable on medications.  On 27 June 2005, an informal Physical Evaluation Board (PEB) found the applicant unfit due to his hypercoagulable state requiring life long anticoagulation. [His condition] was rated at 10 percent [disabling].  All other conditions were considered to not be unfitting.  The applicant, after consulting with his attorney, concurred with the PEB finding and waived his right to a formal hearing.  At the time of the PEB there was no evidence showing that the applicant had completed 20 years of service.  On 27 November 2006, the applicant was issued a 20-year letter confirming his eligibility for retired pay at age 60.  The applicant has not presented any evidence showing that the MEB/PEB findings were not supported by a preponderance of the evidence.  The applicant should have been offered the option to waive his disability severance pay and elect instead to receive retired pay at age 60.   He should be given that option at this time.  There are no other errors in the applicant's case that would require any further corrective action regarding his disability findings. 

7.  On 28 May 2008, the applicant was sent a copy of the advisory opinion for his information and opportunity to rebut.  No response was received.

8.  On 16 August 2007, the VA rendered an updated rating decision.  It granted the applicant a 10 percent rating for deep vein thrombosis due to hypercoaguable state; a 20 percent rating for type II diabetes; 10 percent rating for degenerative disc disease; 10 percent rating for peripheral neuropathy; zero percent rating for pulmonary embolism; and zero percent rating for gout.  His overall rating was 60 percent.   

9.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that members of the Reserve Components may forfeit disability severance pay and be transferred to the Retired Reserve and receive non-disability retired pay at age 60. 

11.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

 12.  Army Regulation 600-8-22 (Military Awards) provides for award of the Korean Service Medal.  In pertinent part, the regulation states that the Korean Service Medal is awarded for qualifying service in the theater of operations between 27 June 1950 and 27 July 1954.


13.  Army Regulation 600-8-22 (Military Awards) states that the Global War on Terrorism Expeditionary Medal (GWOTEM) is authorized for award to members of the Armed Forces of the United States who deployed abroad for service in the Global War on Terrorism Operations on or after 11 September 2001 to a date to be determined. The general area of eligibility (AOE) encompasses all foreign land, water, and air spaces outside the fifty states of the United States and outside 200 nautical miles of the shores of the United States.  The Secretary of Defense, when recommended by the Chairman, Joint Chiefs of Staff, will designate the specific area of eligibility per qualifying operation. Because counter-terrorism operations are global in nature, the AOE for an approved operation may be deemed to be non-contiguous.  The Combatant Commander has the authority to approve award of the medal for units and personnel deployed within his or her theater.  Under no conditions will units or personnel within the United States or the general region excluded above be deemed eligible for the GWOTEM. Service members must be assigned, attached or mobilized to a unit participating in designated operations for 30 consecutive days or 60 nonconsecutive days in the AOE, or meet one of the following criteria: (1) be engaged in actual combat against the enemy and under circumstances involving grave danger of death or serious bodily injury from enemy action, regardless of time in the AOE, (2), is killed, wounded or injured requiring medical evacuation from the AOE while participating in the designated operation, regardless of time, or (3) service members participating as a regularly assigned air crew member flying sorties into, out of, within, or over the AOE in direct support of Operations Enduring Freedom and/or Iraqi Freedom are eligible to qualify for award of the GWOTEM. Each day that one or more sorties are flown in accordance with these criteria will count as one day toward the 30 consecutive or 60 nonconsecutive day requirement.   Service members may be awarded both the GWOTEM and the Global War on Terrorism Service Medal (GWOTSM) if they meet the criteria for both awards; however, the qualifying service used to establish eligibility for one award cannot be used to justify eligibility for the other award.  Only one award of the GWOTEM may be authorized to any individual; therefore, second or subsequent awards will not be awarded. 

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that the applicant was evaluated by the MEB/PEB; found physically unfit and discharged with a 10 percent disability rating and granted severance pay.  However, he was not offered the opportunity
to waive this payment and elect transfer to the retired reserve.  



2.  The advisory opinion states that the applicant would be eligible to receive non-disability retirement benefits at age 60 provided he is transferred to the Retired Reserve and his severance pay is recouped.  While this is an option that rests with the applicant, it was not an issue that he raised in this application and will not be considered by the Board.  Should the applicant desire to pursue this course of action, he would need to submit another application indicating that he desired to repay the severance pay and be transferred to the Retired Reserve.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  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.

4.  An award of a higher VA rating does not establish error or injustice in the Army rating.  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 VA, 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 a different disability rating based on the same impairment.

5.  Permanent orders show that the applicant was awarded the Meritorious Service Medal.  Therefore, his records should be corrected to show this award.

6.  There is no available evidence showing that the applicant served in qualifying theater for award of the Korean Service Medal or the Global War on Terrorism Expeditionary Medal.  Therefore, his request for these awards should be denied.

7.  The applicant's DD Form 214, effective 27 October 2005, shows in Item 12 (Record of Service) that he has completed a total of 22 years, 7 months, and 
10 days of creditable military service.  Therefore, his request to correct this item should be denied.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing in Item 13 of his DD Form 214 the Meritorious Service Medal.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a medical retirement, changing his number of years of creditable military service, award of the Korean Service Medal, Global War on Terrorism Service Medal or Global War on Terrorism Expeditionary Medal.




      _______ _   _X______   ___
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080005336



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ABCMR Record of Proceedings (cont)                                         AR20080005336



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