IN THE CASE OF:
BOARD DATE: 25 November 2008
DOCKET NUMBER: AR20080009535
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 correction of his military records to show the reason for his separation from active duty as medical disability.
2. The applicant states that he was diagnosed by the Department of Veterans Affairs (VA) within 1 year of his release from active duty. He was rated with a
50 percent physical disability for post traumatic stress disorder (PTSD) and rated 20 percent disabled for residuals of his back injury. He contends that since his disability rating was less than 1 year after his release from active duty, it is presumptive that he incurred the disability while on active duty. The applicant also states that he should have been medically evaluated and medically retired from active duty.
3. The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214) and the VA Rating Decision dated 1 May 2007 in support of his application.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests that the narrative reason for the applicant's release from active duty be changed to indicate medical disability.
2. Counsel states that the applicant's records amply advance the issues raised on the applicant's request.
3. Counsel provides no additional supporting documents.
CONSIDERATION OF EVIDENCE:
1. On 1 September 2004, the applicant, a specialist, pay grade E-4, in the Indiana Army National Guard (ARNG), was ordered to active duty in support of Operation Iraqi Freedom.
2. The applicant served in the Iraqi Theater of Operations from 1 February to
16 December 2005. His last assignment while on active duty was with the Target Acquisition Battery at Fort Sill, Oklahoma.
3. On 15 January 2006, the applicant was released from active duty due to completion of required active service and transferred back to his ARNG unit. His characterization of service was honorable. He had completed 1 year, 4 months, and 15 days of creditable active duty during this period of service.
4. On 1 May 2007, the VA rendered a rating decision awarding the applicant service-connected disability ratings as follows:
a. 50 percent for PTSD, effective 16 January 2006; and
b. 20 percent for residuals of back injury with sciatica, effective 16 January 2006.
5. The applicant's service medical records are not available for review. There is no evidence showing that the applicant underwent a medical evaluation board (MEB) or a physical evaluation board (PEB) while on active duty.
6. The Indiana Joint Forces Headquarters notified the applicant via letter, dated 15 October 2007, that he was eligible for retired pay at age 60 based on at least 15 years of qualifying service.
7. The applicant's Report of Separation and Record of Service (NGB Form 22), effective 31 December 2007, shows that he was separated from the Indiana ARNG due to medical unfitness. He had completed 15 years, 9 months, and
11 days of creditable service.
8. 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 disability incurred while entitled to basic pay.
9. Army Regulation 635-40, paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
DISCUSSION AND CONCLUSIONS:
1. There is no available evidence showing that the applicant had a medical condition that rendered him unfit for duty at the time of his release from active duty service.
2. 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 the aforementioned requirement.
3. In view of the foregoing, there is no basis for granting the applicant's request.
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.
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