IN THE CASE OF:     

		BOARD DATE:	  	  2 October 2008

		DOCKET NUMBER:  AR20080011390 


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 retirement and that he be placed on the temporary disability retired list (TDRL).  

2.  The applicant states that the Army did not comply with Department of Defense directives and did not medically discharge him.

3.  The applicant provides a brief, dated 10 June 2008; a letter from the Department of Veterans Affairs (DVA), dated 30 May 2008; and his DVA Rating Decision, dated 8 May 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 October 1986.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 75B (personnel administration specialist).  He served in Southwest Asia from 16 December 1990 to 5 May 1991.  He continued to serve on active duty through a series of reenlistments and was discharged on 19 August 1994 in the rank of sergeant.  He completed 7 years, 10 months, and 13 days of active military service during this period.  On the following date, he was transferred to a Reserve unit.  He was discharged from the U.S. Army Reserve on 20 August 1996.

2.  After a break in service, the applicant enlisted in the Regular Army on 14 September 2000.  He continued to serve on active duty through a series of reenlistments.

3.  He served in Kuwait/Iraq from 26 February 2003 to 13 December 2003 and in Afghanistan from 21 March 2005 to 20 March 2006.

4.  The applicant was given a Noncommissioned Officer Evaluation Report (NCOER) for the period ending July 2006 which shows his principal duty title as Supply Sergeant.  Under Part V (Overall Performance and Potential), the rater placed an “X” in the Block “Among the Best” and listed the three positions in which the applicant could best serve as: (1) Battalion S4 NCOIC; (2) Recruiter; and (3) Distribution Platoon Sergeant.  The senior rater (SR) rated the applicant “Successful” for his overall performance and placed an “X” in Block 1.  The SR rated the applicant “Superior” and placed an “X” in Block 1 for his overall potential for promotion and/or service in positions of greater responsibility.  

5.  The applicant was discharged from active duty on 13 January 2007 under the provisions of Army Regulation 635-200, chapter 4 by reason of expiration of enlistment or fulfillment of service obligation.  He completed 6 years and
4 months of active military service during this period and 14 years, 2 months, and 13 days total active military service.  

6.  The applicant enlisted in the U.S. Army Reserve on 14 January 2007 for a period of 6 years.  

7.  The applicant was given a NCOER for the period ending 13 January 2008 which shows his principal duty title as Property Book Specialist.  Under Part V (Overall Performance and Potential), the rater placed an “X” in the Block “Fully Capable” and listed the three positions in which the applicant could best serve as: (1) Supply Sergeant; (2) Armorer; and (3) Property Book NCO.  The senior rater (SR) rated the applicant “Successful” for his overall performance and placed an “X” in Block 3.  The SR rated the applicant “Superior” and placed an “X” in Block 3 for his overall potential for promotion and/or service in positions of greater responsibility.  

8.  There are no medical documents available in the applicant’s service personnel records.  

9.  A DVA Rating Decision, dated 8 May 2008, shows the applicant was awarded service connection with a combined disability rating of 70 percent (effective 28 September 2007) for posttraumatic stress disorder (PTSD), degenerative joint disease in his left knee, degenerative joint disease in his right knee, degenerative changes of the first metatarsophalageal joint, traumatic arthritis lumbar spine, right thigh injury, and pes planus (claimed as fallen arches). 

10.  The applicant is currently serving in the U.S. Army Reserve in the rank of sergeant.  

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.  In pertinent part, it states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

12.  Title 38, U. S. Code, sections 310 and 331, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was released from active duty on 13 January 2007 under the provisions of Army Regulation 635-200, chapter 4 at the completion of his required active service.  He has subsequently successfully served in the 
U.S. Army Reserve and there is no evidence his military career has ended due to medical unfitness.

2.  The applicant contends that he should have been medically retired; however, the preponderance of evidence shows that his medical conditions did not render him medically unfit to perform his duties or justify physical disability processing.  It appears neither his commander nor any other proper authority believed he was unable to perform his duties.  Therefore, there is no basis for granting him a medical retirement or placing him on the TDRL.

3.  It is noted that the applicant applied to the VA for service connected compensation and was awarded a combined disability rating of 70 percent for PTSD, degenerative joint disease in his left knee, degenerative joint disease in his right knee, degenerative changes of the first metatarsophalageal joint, traumatic arthritis lumbar spine, right thigh injury, and pes planus.

4.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at that time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________XX  ____XX____  ___XX_____  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.




      _______XXXX _   _______   ___
               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)                                         AR20080011390





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ABCMR Record of Proceedings (cont)                                         AR20080011390



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