IN THE CASE OF:	  

		BOARD DATE:	  	  25 November 2008

		DOCKET NUMBER:  AR20080007571 


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, that he be medically retired in accordance with Title 10, United States Code, Chapter 61 (Retirement of Separation for Physical Disability).

2.  The applicant states that he should have gone through the Disability Evaluation System (DES) so it could have been determined if he were eligible to receive disability benefits, most likely disability retirement, given the Department of Veteran Affairs (VA) rated his back condition at 40 percent disabling.  He continues to state that the Army released him from active duty and returned him to his Reserve unit where they administratively discharged him for being unfit via a process that is only suppose to be used for Reservist with non service connected conditions.   The applicant concludes by stating that the DES should have vetted him prior to his release from active duty.

3.  The applicant provides the following documents in support of this application:
	
      a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 5 May 2000; 
	
	b.  a copy of his DD Form 214 dated 26 November 2004;

	c. a copy of Orders Number 05-126-00020, Headquarters, 99th Regional Readiness Group, dated 6 May 2005);
	
	d.  a copy of his DA Form 3349 (Physical Profile);
	e.  copies of his Standard Forms 600 (Chronological Record of Medical Care);

	f.  a copy of his Standard Form 588 (Emergency Care and Treatment);

	g.  a copy of his Veteran Affairs Rating Decision;

	h.  a copy of his  Magnetic Resonance Imaging  (MRI); and

	j.  a copy of his DA Form 2844 (Medical Record-Post Deployment Medical Assessment).

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 DD Form 214 shows that he was ordered to active duty in the United States Army in support of Operation Enduring Freedom on 25 March 2003.  He was awarded military occupational specialty (MOS) 63B (Light Wheeled Vehicle Mechanic).  The highest rank he attained while serving on active duty was sergeant (E-5).

3.  The applicant submitted a Standard Form 600 (Chronological Record of Medical Care) shows he was treated for lower back pain and difficulty putting weight on his left leg after paying football for physical training on 9 June 2003.  The Standard Forms 600 (Chronological Record of Medical Care) dated 
24 June 2003 and 1 July 2003, shows that the applicant continued to be treated for lower back pain.

4.  The applicant submitted a copy of a Standard Form 588 (Emergency Care and Treatment), dated 1 July 2003, which shows that he sought emergency care for the trauma to his hip from playing football on 9 June 2003.  


5.  The Standard Form 600 (Chronological Record of Medical Care) dated
10 July 2003, shows the applicant was seen by the neurosurgery department which resulted in him being evacuated for an MRI and possible surgery.  

6.  The applicant submitted a DA Form 2844 (Medical Record-Post Deployment Medical Assessment) which shows he was seen for follow-up care for lower back pain on 23 July 2003 at the Madigan Army Medical Center.

7.  The medical record report for the Madigan Army Medical Center, dated 
24 July 2003, shows the applicant received an MRI which showed that he had a left L5-S1 disk herniation with a free fragment.  He did not want to try epidural steroids which may not have a long lasting effect.  The applicant underwent a 
po-steroid pack trial and was scheduled to return on 13 August 2003 for surgery on 18 August 2003.  There is no evidence that he had surgery before being discharged from active duty.

8.  On 14 May 2004, the applicant was honorably released from active duty and was transferred to the 439th Engineer Battalion, Bismarck, North Dakota.  

9.  A Memorandum from the Headquarters, 96th Headquarters, Regional Readiness Command, dated 13 December 2004, subject:  Retention Standards Determination, states that the Command Surgeon reviewed the applicant’s medical documentation and determined the applicant did not meet retention standards in accordance with Army Regulation 40-501, chapter 3, paragraph 39(e).

10.  The specific facts and circumstances surrounding the applicant’s USAR discharge processing are not available for review.  The evidence does include a properly constructed DD Form 214 that contains the authority and reason for the applicant’s active duty discharge.  

11.  The applicant submitted a DA Form 4856 (Developmental Counseling Form) dated 27 February 2005 which shows the applicant was informed that he was not qualified for duty or retention in the USAR by an MOS Medical Review Board (MMRB) based on injuries he received while he was deployed.  The applicant elected to receive an honorable discharge which he agreed to as attested to by his signature.  

12.  Orders Number 05-130-00009, Headquarters, 96th Regional Readiness Command, Salt Lake City, Utah, dated 10 May 2005 shows the applicant received an honorable discharge from the USAR in accordance with AR 135-178.


13.  The applicant submitted a copy of his VA Rating Decision, dated 
11 April 2005 which shows he received a 40 percent service-connected disability combined rating for radiculopathy with degenerative changes, left hip associated with left disc protrusion L-5/S1 surgical posterior laminectomy, discectomy (claimed as low back condition s/p surgery).

14.  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.  

15.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the Medical Evaluation Board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

16.  Title 10, United States Code, Chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of a disability incurred while entitled to basic pay.  Sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.
The DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been referred to the MEB and given a disability rating of 30% was carefully considered and found to be without merit.

2.  The available evidence shows the applicant elected to receive an honorable discharge in lieu of going through the disability process.  There is no evidence in the record and the applicant failed to provide evidence that shows his records were reviewed by a MEB or a PEB.  Without a MEB/PEB, the applicant could not have been issued a medical discharge or retirement.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service-connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the 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.

BOARD VOTE:

____ ____  ____ ___  ____ ___  GRANT FULL RELIEF 

_______  _________  ________   PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X __ _    ___    X          DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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)                                         AR20080007571



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007571



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1