IN THE CASE OF:	

		BOARD DATE:	  6 November 2008

		DOCKET NUMBER:  AR20080010571 


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 honorable discharge be changed to a medical discharge.  In addition, he requests, in effect, that his records be corrected to show he was promoted to Staff Sergeant (SSG)/E-6 with back pay and he be paid all due back pay and allowances.
  
2.  The applicant states that he sent his packet so the Board can see what happened to him.  All he asks is to set the record straight and pay him what is due him.  The applicant further states at this time the Department of Veterans Affairs (DVA) has awarded him a 50 percent disability rating.   

3.  The applicant provides his DVA rating decision, dated 30 May 2008; a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 5 January 2005; six DA Forms 2173 (Statement of Medical Examination and Duty Status), with various dates; a DA Form 4187 (Personnel Action), dated 5 January 2005; a 16-page application for Traumatic Servicemembers’ Group Life Insurance (TSGLI), dated 25 August 2008; and an undated Inactive Duty Training letter. 

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior service in the Regular Army, the Army National Guard (ARNG), and the United States Army Reserve (USAR).  The applicant enlisted in the TXARNG on 24 April 2004 in military occupational specialty 19D (Cavalry Scout) in the rank and grade of Sergeant (SGT)/E-5.
.

2.  The applicant was ordered to active duty in support of Operation Iraqi Freedom on 26 June 2004.  He arrived in Iraq on 23 November 2004.

3.  A DA Form 4187, dated 5 January 2005, shows that the company commander, C Company, 176th Engineer Battalion recommended the applicant for promotion to SSG/E-6.  There are no special orders in the applicant's service personnel records promoting him to SSG/E-6 while he was in the TXARNG.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status, shows that the applicant was treated at the Troop Medical Clinic (TMC) Forward Operating Base (FOB), Iraq, on 20 June 2005 for low back pain (initial injury occurred on 20 September 2004, at Camp Shelby, Mississippi, while loading equipment into a vehicle).

5.  Two DA Forms 2173 show that the applicant was treated at the TMC FOB, Iraq, on 20 June 2005 for chronic sinus problems and bilateral knee pain.

6.  A DA Form 2173 shows that the applicant was treated at the TMC FOB, Iraq, on 11 July 2005 for a lesion on his lower right eyelid.

7.  On 25 October 2005, the applicant departed Iraq.

8.  A DA Form 3349 (Physical Profile), dated 2 November 2005, shows the applicant was issued a temporary profile for chronic low back pain, cervical strain, and chronic fatigue.  The profile expired on 2 February 2006.  

9.  Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders 355-401, dated 21 December 2005, show the applicant was assigned to the medical holdover unit at Fort Sam Houston, Texas for medical treatment.

10.  A Brooke Army Medical Center (BAMC) Form 1030 (Notification of Patient's Medical Status), dated 4 January 2006, shows that the applicant was treated for lower back pain, cervical strain, chronic fatigue, and lesion right lower lid.

11.  A DA Form 3349, dated 5 January 2006 shows the applicant was issued a temporary profile for chronic low back pain, cervical strain, and chronic fatigue. The profile expired on 5 April 2006.  

12.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 
5 January 2006, shows that the applicant extended his current enlistment in the TXARNG by 1 year, which changed his expiration of term of service (ETS) date to 23 April 2007.

13.  Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston Orders 025-0118, dated 25 January 2006, show that the applicant was released from active duty and assigned to Headquarters and Headquarters Company, 386th Engineer Battalion effective 27 January 2006.

14.  On 27 January 2006, the applicant was released from active duty.  He was issued a DD Form 214 which shows in block 28 (Narrative Reason for Separation) the entry "COMPLETION OF REQUIRED ACTIVE SERVICE."  Records show that the applicant had competed 1year, 7 months, and 2 days of active federal service at the time of his release.

15.  A DA Form 4836, dated 23 April 2007, shows that the applicant extended his current enlistment in the TXARNG by an additional 6 months, which changed his ETS date to 23 October 2007.

16.  A DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), for the period 30 April 2007 through 29 July 2007, showed the applicant's rank as SGT and that he successfully met all the requirements of duty MOS 19D2O at the time of his change of rater report.

17.  A National Guard Bureau (NGB) Form 22, with the period ending 23 October 2007, shows the applicant was discharged under the provisions of National Guard Regulation 600-200, paragraph 8-35a with an honorable discharge, in the rank and grade of SGT/E-5, by reason of ETS after completing 18 years, 
9 months, and 20 days of qualifying service for pay.  His discharge orders show he was discharged as a Reserve of the Army.  

18.  The applicant's military medical records are not available.

19.  The applicant provided a 3-page DVA Rating Decision, dated 13 November 2007, that shows he was rated as 10 percent for degenerative disc disease, cervical spine; 10 percent degenerative disc disease, lumbosacral spine; 
10 percent for right knee disability; and 10 percent for sinus condition for service connected injuries with a combined evaluation of 30 percent.

20.  The applicant provided a 2-page DVA Rating Decision, dated 30 May 2008, that shows he was rated as 30 percent for Post Traumatic Stress Disorder for service connected injuries with a combined evaluation of 50 percent.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 3-1, provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  Only a Physical Evaluation Board (PEB) is authorized to determine that a Soldier is incapable of performing his or military duties and to determine a percentage of disability.

22.  Title 38, United States Code, sections 1110 and 1131, permit 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 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.  

23.  National Guard Regulation 600-200, in effect at the time, governed policy and criteria concerning promotion to pay grades E-5 through E-8 and the selection board process.  It stated that only board members will select Soldiers as "best qualified" for promotion and fully qualified Soldiers recommended by the immediate commander will be referred to the board.  A list of the individuals recommended by the board and selected by the promotion authority, in the order they were to be promoted, would be published.  Lieutenant Colonel/O-5 would be the promotion convening authority for E-5 and E-6.

24.  Department of the Army Personnel Policy Guidance (PPG) for Contingency Operations in Support of Global War on Terrorism, states ARNG promotion to Sergeant through Sergeant Major, should consider mobilized Soldiers for unit vacancy promotions within their mobilized unit of assignment or to positions in non-mobilized units.  However, mobilized Soldiers will not demobilize solely to take the assignment or promotion.  State Adjutants General and/or the Soldier’s unit commander (who exercises UCMJ authority) will initiate the promotion request on a DA Form 4187.  The request must identify the position vacancy by unit identification code (UIC), Paragraph, Line Number and incumbent.  Forward all requests to NGB-ARH-S, 1411 Jefferson Davis Highway, Arlington, Virginia.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge should be changed to a medical discharge.  However, there is no evidence of record that indicates he was ever unable to perform his military duties.  It appears when he separated from the ARNG he was medically eligible for retention.  

2.  Furthermore, the applicant's NCOER with the period ending July 2007 indicated that his rating officials believed he successfully met all the requirements of MOS 19D2O, which is a further indication that he was not medically unqualified for retention.  The evidence of record and the applicant himself fail to indicate he could not perform his military duties.  He provides no evidence that shows he could not perform his duties.

3.  Based on the above, the applicant has not submitted sufficient evidence to show he was eligible for referral to the physical disability system or that he was ever unfit by reason of physical disability.

4.  The DVA rating documents provided by the applicant were also carefully considered.  However, the award of a DVA rating does not establish entitlement to medical retirement or separation.  The DVA is not required to find unfitness for duty.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

5.  Evidence of record shows that the applicant was recommended for promotion to SSG, by the company commander, C Company, 176th Engineer Battalion.  However, there are no promotion orders promoting him to the rank of SSG.  There is no evidence to show his promotion recommendation was forwarded to NGB.  In addition, his last NCOER and NGB Form 22 show his rank as SGT.  Furthermore, there are no documents in the applicant's records that show an authorized promotion authority approved the company commander's recommendation for promotion to SSG. 

6.  In the absence of military records which show the applicant was selected for promotion to SSG/E-6 prior to his discharge from the TXARNG, there is an insufficient basis on which to change his rank in this case.  Therefore, his rank of SGT and pay grade of E-5 as shown on his NGB Form 22 with the period ending 
23 October 2007 appear to be correct.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




      _______ _   _______   ___
               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)                                         AR20080010571





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ABCMR Record of Proceedings (cont)                                         AR20080010571



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