IN THE CASE OF:	  

		BOARD DATE:	  3 February 2009

		DOCKET NUMBER:  AR20080015401 


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 at the time of his separation, he suffered from a disability that should have resulted in his separation processing through medical channels.  

3.  The applicant provides the following documents in support of his application:  Separation Orders; Clinical Records (SFs 513); Clinical Record (SG Form 84-R); and Department of Veterans Affairs (VA) Original Disability Compensation 
(VA 21-6782). 

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 record shows that after having served in an enlisted status, he was commissioned a second lieutenant (2LT) in the Army National Guard (ARNG) on 24 July 1966.

3.  On 2 April 1968, while serving as a member of the ARNG, the applicant entered active duty in that status.  He was promoted to first lieutenant (1LT) on 
2 January 1969, and to captain (CPT) on 2 January 1970.  

4.  The applicant's record contains a Record of Medical Examination (SF 88), dated 18 October 1972, which documents his separation physical examination.  This form shows that he suffered from high frequency hearing loss and a seizure disorder in Item 74 (Summary of Defects).  Item 76 (Physical Profile) shows he was assigned a 111321 physical profile and Item 77 (Examinee) confirms he was determined to be medically qualified for separation/retention by competent medical authority.

5.  On 2 January 1973, the applicant was honorably released from active duty (REFRAD), in the rank of CPT, by reason of expiration of active duty commitment.  The DD Form 214 he was issued at the time shows he completed 4 years, 9 months, and 1 day of active duty service during the period covered by the separation document and that he reverted to his ARNG status upon his REFRAD.

6.  On 29 September 1983, United States Army Reserve Components Personnel and Administration Center (ARPERSCEN) Orders C-09-913314 directed the applicant's transfer to the Retired Reserve as a result of his non-selection for promotion.

7.  On 3 February 1983, the applicant requested to be discharged from the Army Reserve based on his completion of his Reserve obligation and on 6 December 1983, ARPERSCEN Orders C-09-913314 were revoked, and on 12 December 1983, ARPERSCEN Orders D-12-903671 directed the applicant's honorable discharge from the Reserves, effective 3 February 1983.

8.  The applicant provides a SG Form 84-R, which documents his treatment for a fragment wound to his right temporal region on 16 October 1968.  He also provides two clinical records, dated 20 October 1972, which document a medical examination and neurology consult completed on that date in conjunction with his separation physical examination.  The examining physicians, after evaluating  applicant's condition, which included the pulmonary embolism he suffered in January 1972, and the seizure disorder that resulted from a fragment wound to his head in 1968, and considering the applicant's request for a medical board, both determined the applicant was medially fit for retention on active duty or separation.  
9.  The applicant also provides an undated VA Form 21-6782, which shows he was granted service connection for the following conditions and assigned the disability rating percent (%) indicated:  fragment wounds, right temporal region with skull bone loss and residual fragments right parietal region and residual cranioplasty, 50%; brain trauma with seizure disorder residuals, 10%; and 
right pulmonary embplus, 10%.  

10.  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.  

11.  Chapter 3 of the same regulation 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. 

12.  Paragraph 3-2 of the disability 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.  

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).  

14.  The disability regulation stipulates that 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.

15.  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 the medical conditions in question, which he incurred in 1968, he continued to perform his duties through the date of his release from active duty in January of 1973, and for an additional 10 years until being honorably discharged from the USAR in February 1983.   
4.  The evidence of record contains no indication that any of the applicant's medical conditions disqualified him from further military 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 and the consults completed at the time, which all indicate he was 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 medical treatment he received while he was on active duty.  However, they fail to show that any of the conditions for which he was treated were physically disabling and warranted his  separation processing through the PDES at the time of his REFRAD.  

6.  The VA Form 21-6782 confirms he was granted service connection for the three conditions listed; however, the military medical treatment records on file and provided by the applicant confirm these conditions were treated and evaluated while he was on active duty and were determined not to be physically disabling.  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. 

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)                                         AR20080015401



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ABCMR Record of Proceedings (cont)                                         AR20080015401


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