IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080006369 


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, disability retirement. 

2.  The applicant states, in effect, that within less than a year of his discharge, the Department of Veterans Affairs (DVA) granted him individual unemployability and rated him as 100 percent disabled. 

3.  The applicant provides a copy of his Department of Veterans Affairs (DVA) St. Petersburg Regional Office Rating Decision, dated 19 February 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 16 January 1998 through
24 March 2007.  He attained the grade of staff sergeant/E-6.  He was involuntarily discharged under the provisions of Army Regulation 635-200, chapter 5-8, by reason of parenthood.  

2.  The applicant's service medical records were not available for review.  The applicant did not submit any evidence showing that he had been diagnosed with any medical condition which rendered him unfit for duty.

3.  The applicant provided a copy of his DVA Rating Decision showing that he is entitled to individual unemployability effective 25 March 2007 due to post-traumatic stress disorder (PTSD).

4.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18. It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

5.  The objectives of the Army PDES are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-
connected disability, and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with chapter 3, AR 40-501 as evidenced in a medical evaluation board; receive a permanent medical profile and are referred by an MOS/Medical Retention Board; are command-referred for a fitness for duty medical examination; or are referred by the Commander, US Army Human Resources Command (HRC).  A service member is referred to a Medical Evaluation Board (MEB) by a unit commander or a physician when it is believed that he/she may possesses one or more medical conditions that cause him/her to fail to meet retention standards.  A service member does not "apply” or self-refer for evaluation by an MEB.

	a.  Soldiers enter the PDES under the presumption they are physically fit. This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions.

	b.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.

	c.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to the Physical Evaluation Board (PEB).  The PEB is required by law to determine the physical disability rating using the Veterans Schedule for Rating Disabilities (VASRD).  Three factors determine disability disposition: the rating percentage, the stability of the disabling condition, and total years of active Federal service.  For service-incurred or aggravated conditions not involving misconduct, the dispositions are:  (1) Permanent disability retirement occurs if the condition is permanent and stable and rated at a minimum of 30 percent or the Soldier has 20 years active Federal service; and (2) Temporary disability retirement occurs if the Soldier is entitled to permanent disability retirement except that the disability is not stable for rating purposes.  However, stability does not include latent impairment, that is what might happen 
in the future.  If placed on the TDRL, the Soldier is required to undergo a periodic medical reexamination within 18 months, followed by another PEB evaluation.  The Soldier may be retained on the TDRL or final determination made.  While the law provides for a maximum tenure on the TDRL of 5 years, there is no entitlement to be retained for the entire period.

	d.  The PEB initially conducts an informal adjudication.  This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the PEBLO for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the US Army Physical Disability Agency (USAPDA) to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

6.  Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civilian occupations.  Part 4, paragraph 4.1 of the VASRD states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

7.  Title 38, United States Code, sections 1110 and 1131, permits the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for the 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.

8.  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.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a DVA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a DVA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the DVA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service medical records were unavailable for review.  There is no medical evidence showing that the applicant was found unfit for duty due to a medical condition prior to his discharge.  He has not provided any medical evidence to show that he was unfit prior to his discharge.  Although he is now service-connected for PTSD through the DVA, there is no medical evidence available showing he was unfit for duty for PTSD.  In the absence of evidence to the contrary, administrative regularity must be presumed in the applicant's discharge process.  

2.  The presumption of fitness means that when a Soldier continues to perform military duties up to his ETS or retirement date, that Soldier is presumed to have been physically fit.  The presumption is rebuttable by evidence that shows:  An acute, grave illness or injury occurred which prevented the Soldier from performing further duty; a serious deterioration of a previously diagnosed condition, to include a chronic condition, which would preclude further service
(if the Soldier were not separating/retiring); and/or a chronic condition for which the Soldier was referred, and a preponderance of evidence establishes that the Soldier was not performing duties befitting his or her experience, grade, rank, or rating.  The applicant has not provided evidence sufficient to overcome the presumption of fitness.

3.  The fact that the DVA, in its discretion, may have awarded the applicant benefits for a medical condition is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Army purposes. 

4.  DVA ratings do not establish entitlement to medical retirement or disability separation from the Army.  Operating under different law and its own policies and regulations, the DVA, 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; i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

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
      
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)                                         AR20080006369



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ABCMR Record of Proceedings (cont)                                         AR20080006369



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