IN THE CASE OF:	

		BOARD DATE:	  7 October 2008

		DOCKET NUMBER:  AR20080011559 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 January 2006, to show he was medically discharged.

2.  The applicant states that he suffered a line of duty (LOD) injury to his lower back during his service in Iraq and that he was awarded 10 percent disability compensation by the Department of Veterans Affairs (DVA).

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 214, dated 14 January 2006. 

	b.  Self-authored letter, dated 20 May 2008.

	c.  Headquarters, New York Army National Guard (NYARNG), Watervliet, NY, Memorandum, dated 9 June 2008, Subject: Delinquent Post-Deployment Health Re-Assessment (PDHRA).

	d.  Letter, dated 24 June 2008, from the applicant to the NYARNG in response to the delinquent PDHRA.

	e.  DVA Rating Decisions, dated 12 May 2008 and 20 May 2008.

	f.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 November 2005 and allied documents.

	g.  Applicant’s letters, dated 15 August 2007 and 19 September 2007, to the DVA.

	h.  Miscellaneous medical records, consultation sheets, appointment slips, reports, dated on various dates. 

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 records show he enlisted in the NYARNG on 11 February 1983 and held military occupational specialty (MOS) 11B (Infantryman).  He subsequently executed a series of extensions and/or reenlistments in the NYARNG, was assigned to the 145th Maintenance Company, Bronx, New York, and attained the rank of specialist (SPC)/E-4. 

3.  The applicant’s awards and decorations include the Army Commendation Medal, the National Defense Service Medal, the Army Service Ribbon, the Overseas Service Ribbon, the Armed Forces Reserve Medal with “M” Device, the Global War on Terrorism Expeditionary Medal, and the Global War on Terrorism Service Medal.

4.  On 19 November 2004, the applicant was ordered to active duty in support of Operations Iraqi Freedom and subsequently served in Iraq from 22 January 2005 to 20 December 2005.  

5.  The applicant’s records show that on 15 March 2005, he executed a 6-year reenlistment in the NYARNG and qualified for a $15,000.00 reenlistment bonus.

6.  On 23 May 2005, while in Iraq, the applicant was welding a Crows Nest on a 5-ton gunship.  The wrecker holding the Crows Nest adjusted the boom moving Nest and causing the applicant to move backward; his leg slipped out from under him, causing him to fall backwards and hitting his lower back against the turret. He was treated at the 10th Combat Support Hospital.  No formal LOD investigation was conducted.

7.  There is no indication that the applicant was issued a permanent medical profile or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).  

8.  The applicant was honorably released from active duty to the control of his NYARNG unit on 14 January 2006; however, his military records do not contain a copy of his DD Form 214.  The applicant submitted the “Member” copy of the DD Form 214; but, this does not show the authority and/or narrative reason for separation, the character of service, or the Reentry Code.

9.  On 7 May 2008 and 9 June 2008, by certified mail, the applicant was notified by the NYARNG that he was required to complete his PDHRA screening but failed to do so.  

10.  On 24 June 2008, the applicant responded to the NYARNG stating that he has been collecting DVA disability compensation as a result of his low back injury. 

11.  In his self-authored letter, dated 10 May 2008, the applicant states that while serving on active duty in Iraq, he suffered a lower back injury which limited his training and military career.  He further states that the injury was determined to be in LOD and that he is receiving 10-percent disability compensation. 

12.  The applicant submitted a copy of the DVA Rating Decision, dated 20 May 2008, that shows he was awarded a 10-percent combined disability rating for small focal herniated nucleus pulpous at L5-S1, claimed as a back injury.

13.  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.  Paragraph 4-24B explains the final disposition of a PEB after review by the U.S. Army Physical Disability Agency (USAPDA).  It states that based upon the final decision of the USAPDA, retirement orders are published, or other disposition action is taken, as follows: 

	a.  Permanent retirement for physical disability (10 USC 1201 or 1204).

	b.  Placement on the TDRL [temporary disability retired list] (10 USC 1202 or 1205).

	c.  Separation for physical disability with severance pay (10 USC 1203 or 1206).

	d.  Separation for physical disability without severance pay (10 USC 630, 12681, 1165, or 1169).

	e.  Transfer of a Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer to the Inactive Reserve on the Soldier’s request (10 USC 1209).

	f.  Separation for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence (10 USC 1207).

	g.  Release from active duty and return to retired status of retired Soldiers serving on active duty who are found physically unfit.

	h.  Return of the Soldier to duty when he or she is determined physically fit.

14.  The Veterans Administration Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the DVA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, rank, and grade.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or 
responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA 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 evidence of record shows that the applicant suffered an injury during his service in Iraq.  He was treated at a local hospital in theater and returned to duty. There is no evidence in the applicant's records and the applicant did not submit any evidence that shows this injury was determined to be in LOD or led to a physical profile or limited duty, or that his injury would have warranted his referral to the PDES.  Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

2.  The applicant was notified by the NYARNG that he needed to complete his PDHRA, which may help detect any potential medical issues.  However, he failed to do so.  The Army must find that a Soldier is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  In this case it appears that the applicant was honorably separated in 2006 for completion of his service.  He remains a member of the NYARNG today.

3.  An award of a DVA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA awards ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

4.  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 did not submit evidence that would 
satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20080011559



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011559



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1