IN THE CASE OF:	  

		BOARD DATE:	        24 July 2008

		DOCKET NUMBER:  AR20080006103 


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 that the reason for his honorable discharge from the California Army National Guard (CAARNG) be changed from "expiration of service obligation" to "physical disability retirement."

2.  The applicant states he had almost 18 years of creditable service for retirement purposes and, had it not been for a training injury he suffered in May 1989, he would have been able to complete the necessary service to qualify for non-regular retired pay.  He adds that he is rated 30% disabled by the Department of Veterans Affairs (DVA).

3.  The applicant provides no additional documentation.

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.  With prior Active Component (AC) and Reserve Component (RC) service, the applicant served in the CAARNG from 21 May 1980 through his honorable discharge on 20 May 1992 by reason of expiration of service obligation.

3.  The applicant's medical records are not available for review.  The available records do contain a CAL ARNG Form 2173 (Statement of Medical Examination and Duty Status), dated 16 June 1989.  This form indicates that the applicant was performing active duty for training at Fort McClellan, AL from 27 May 1989 through 10 June 1989.  On/about 30 May 1989, he was participating in confidence course training when he fell from a set of parallel bars and injured his right knee.  He was taken to Noble Army Hospital, Fort McClellan where he was diagnosed with "torn ligaments of the right knee both anterior cruciate and lateral capsular."  No further information is available.

4.  The applicant's records do not show that he was ever referred to the Physical Disability Evaluation System (PDES); there are no Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) proceedings.  Furthermore, there is no indication the applicant was prevented from performing his military duties as a result of his knee injury.

5.  The functional proponent for the Army's PDES is the US Army Physical Disability Agency (USAPDA), located at Walter Reed Army Medical Center (WRAMC), Washington, D.C.  Subordinate Physical Evaluation Boards (PEBs) are located at WRAMC; Fort Sam Houston, Texas; and Fort Lewis, Washington.  Soldiers are referred into the PDES five ways:

	a.  Medical Evaluation Board (MEB):  The medical treatment facility (MTF) initiates an MEB under the provisions of AR 40-400, chapter 7, when a Soldier has received maximum benefit of medical care for a medical impairment which may render the Soldier unfit for further military service.  Per Department of Defense (DOD) guidance, Soldiers shall be referred for evaluation within 1 year of the diagnosis of their medical impairment when they are unable to return to military duty.  The MEB validates whether the Soldier meets the medical retention standards of AR 40-501, chapter 3.  If the Soldier does not meet medical retention standards, the MTF refers the case to the applicable Physical Evaluation Board (PEB).

	b.  Military Occupational Specialty/Medical Retention Board (MMRB):  The MMRB is an administrative screening board conducted under the provisions of AR 600-60.  It determines whether Soldiers who meet medical retention standards, but have a permanent (P) 3 or 4 physical profile can physically perform their primary military occupational specialty (branch/specialty code for officers) in a worldwide, field environment.  For active duty Soldiers, referral to a MEB/PEB is one of four actions the MMRB Convening Authority (MMRBCA) may direct.  When the MMRBCA directs referral to an MEB/PEB, conduct of the PEB is normally mandatory regardless of the MEB findings.  To return the Soldier to duty, the MEB must upgrade the profile to a permanent 2 or 1.  If the MEB confirms the P3 is appropriate but upgrades the associated duty limitations, the MEB may refer the Soldier back to the MMRB for reconsideration.

	c.  Fitness for duty medical examination:  Commanders may refer Soldiers to the MTF for a medical examination under the provisions of AR 600-20, paragraph 5-4, when they believe the Soldier has a medical impairment which impacts duty performance.  If this examination indicates the Soldier falls below the medical retention standards of AR 40-501, chapter 3, the Soldier will generally be referred for an MEB/PEB. 

	d.  Headquarters, Department of the Army (HQDA) action:  The Commander, Human Resources Command (HRC), upon recommendation of The Surgeon General, may refer a Soldier to the responsible MTF for medical evaluation as described in (c) above.  The Commander, HRC, may direct referral into the PDES upon disapproving an MMRBCA’s recommendation to reclassify or branch transfer a Soldier.

	e.  RC non-duty related process:  DOD Directive 1332.18, as implemented by DOD Instruction 1332.38, affords RC members not on active duty and pending separation for medical disqualification for nonservice-connected impairments the right to a PEB fitness determination.  Formerly, these Soldiers were separated based on not meeting medical retention standards.  Referral to the PEB allows these Soldiers a fitness determination based on whether the medical impairment precludes reasonable performance of duty – the standard applied to Soldiers with a statutory right to referral into the PDES.  The USAR Regional Readiness Command or the ARNG State Headquarters refers the case to the PEB – not the MTF (The RC soldier may be referred to the MTF for conduct of a physical, but the MTF does not conduct an MEB.).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was injured while on active duty on 30 May 1989.  He was treated for his injury and a line of duty investigation was conducted.

2.  The applicant was honorably discharged on 20 May 1992 for expiration of his service obligation.  This event occurred 3 years after his injury and after he had presumably performed his National Guard duties to standard.

3.  In order to be separated by reason of physical disability, the applicant would have been required to undergo the MEB/PEB process.  There is no record of his referral to the PDES.

4.  The applicant’s military service was not interrupted by physical disability.  Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would indicate that he suffered from any medical condition of such severity that he was rendered unable to reasonably perform the duties of his office, rank, grade, or rating.

5.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Army purposes.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, 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.

6.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


															XXX
      _______________________
                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)                                         AR20080006103



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ABCMR Record of Proceedings (cont)                                         AR20080006103



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