IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080009959 


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 his record be corrected to show he was medically retired.  

2.  The applicant states, in effect, that since a medical board was not convened prior to his release from active duty (REFRAD).  

3.  The applicant provides a self-authored letter of explanation, involuntary mobilization orders, and medical records in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was appointed a second lieutenant (2LT) and entered active duty as an Armor officer on 2 June 2001.  

2.  The applicant's record shows he was promoted to first lieutenant (1LT) on 
2 December 2002, and to captain (CPT) on 1 November 2004.  His record shows he served in Iraq from 16 November 2003 through 26 October 2004.  It also shows that he earned the following awards during his active duty tenure:  Army Commendation Medal (2nd Award); National Defense Service Medal; Global War on Terrorism Expeditionary Medal; Global War on Terrorism Service Medal; and Army Service Ribbon.  


3.  The applicant's Officer Records Brief (ORB), dated 1 June 2006, shows his Physical Profile (PULES) as 111111, and his Official Military Personnel File (OMPF) is void of any indication that he was suffering from a disabling medical condition that would have warranted his separation processing through medical channels at the time of his release from active duty (REFRAD).  

4.  On 13 September 2005, the applicant voluntarily requested REFRAD on 
2 June 2006, based on the expiration of his active duty requirement.  

5.  On 24 February 2006, during his separation medical processing, the applicant completed a Report of Medical History (DA Form 2801-1) in which he listed several medical conditions he ever had and entered comments on each.  The examining physician provided comments on all pertinent conditions.  

6.  The Report of Medical Examination (DD Form 2808) documenting the applicant separation medical examination shows all  Clinical Evaluation areas were determined to be normal, with the exception of the area of "spine, other musculoskelatal", which contained the notation "history scoliosis", and the applicant received a Physical Profile of 111111.  The examining physician noted no unfitting medical conditions warranting processing through medical channels, and confirmed the applicant was qualified for retention/separation.  

7.  On 1 June 2006, the applicant was honorably REFRAD and transferred to the United States Army Reserve (USAR) Control Group.  The DD Form 214 he was issued shows he completed a total of 5 years of active military service, and that he was separated by reason of completion of required active service.  

8.  The applicant provides copies of his medical record that shows he was treated for multiple medical conditions throughout his active duty tenure.  He provides no documentation that indicates any of the conditions he was treated for rendered him unfit for further service.  

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  


10.  Chapter 3 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presences of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 

11.  Paragraph 3-2 of the same regulation contains guidance on fitness presumptions.  It states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  

12.  The same regulation further states that the presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  

13.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.


14.  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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was medically retired was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  The regulation stipulates that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  

3.  The evidence of record in this case shows that although the applicant was treated for several medical conditions while serving on active duty, he continued to perform his duties through the date of his REFRAD, which he voluntarily  requested, based on the expiration of his active duty commitment.   

4.  The evidence of record contains no indication that any of the applicant's medical conditions disqualified him from further active duty service, or were sufficiently disabling to support his processing through the Army's PDES at the time of his REFRAD, as evidenced by his separation physical examination, which found him medically qualified for retention/separation, and the fact he was transferred to the USAR to continue his military service.  


5.  The medical records provided by the applicant outline the medical treatment he received while he was on active duty.  However, these treatment records fail to show he had a physically disabling condition that would have warranted his separation processing through the PDES at the time of his REFRAD.  

6.  The applicant is advised that 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards applied by military medical authorities at the time of his REFRAD.  As a result, the VA is the appropriate agency to provide him medical treatment and disability compensation for service connected medical conditions that were not found permanently disabling at the time of his REFRAD, and he should pursue this matter through the VA.   

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)                                         AR20080009959



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ABCMR Record of Proceedings (cont)                                         AR20080009959


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