IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080015612 


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 discharge from the Virginia Army National Guard (VAARNG) by reason of medically unfit for retention be changed to a physical disability retirement.

2.  The applicant states he was discharged from the VAARNG as medically unfit for retention based on conditions he incurred while on active duty in Iraq.  He states all of his medical conditions were service-connected and he should be retired, not discharged.

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

	a.  Department of Veterans Affairs (DVA) rating decision, dated 18 October 2006.

	b.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 1 March 2007.

	c.  DA Form 3349 (Physical Profile), dated 16 September 2006.

	d.  VAARNG medical discharge packet and allied documents, dated on miscellaneous dates in 2006 and 2007.


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the VAARNG in the rank/grade of private PV2/E-2 for a period of 8 years on 31 October 2002.  He was subsequently ordered to active duty for training (ADT), completed basic and advanced individual training, and was awarded military occupational specialty (MOS) 12C (Bridge Crewmember).

2.  On 18 December 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom and served in Iraq from 29 February 2004 to 9 February 2005.  He was honorably released from active duty to the control of his ARNG unit on 20 March 2005 for completion of his ARNG service obligation.

3.  On 16 September 2006, the applicant was issued a permanent physical profile for ulcerative colitis. 

4.  On 20 October 2006, by memorandum, the Office of the Adjutant General, Joint Forces Headquarters, VAARNG, notified the applicant that his records were reviewed by the State medical officer on 16 September 2006 to determine his medical fitness for continued duty in the VAARNG.  As a result of that review, the State medical officer recommended separation because the applicant’s medical condition was so restrictive as to preclude satisfactory physical performance in an MOS or specialty code for which the VAARNG had a requirement.  The applicant was apprised of his right to be referred to the Army Physical Disability Evaluation System, Non-Duty Physical Evaluation Board (NDPEB), should he desire to contest his separation.

5.  On 14 November 2006, by memorandum, the applicant replied to the Adjutant General notification, waived appearance before a NDPEB, and elected to be discharged for medical retention disqualification in accordance with chapter 3 of Army Regulation (AR) 40-501 (Standards of Medical Fitness).

6.  On 24 January 2007, the applicant’s immediate commander recommended approval of the applicant’s discharge for medical retention disqualification in accordance with AR 40-501, AR 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations), and National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).  

7.  On 27 January 2007, the applicant’s intermediate commander recommended approval of the applicant’s discharge.


8.  On 6 February 2007, the VAARNG operations officer (S-3) also recommended approval of the applicant’s discharge for medical disqualification.

9.  On 25 February 2007, Joint Forces Headquarters, VAARNG, published Orders 056-003 directing the applicant’s honorable discharge effective 1 March 2007.  The NGB Form 22 he was issued shows he was discharged in accordance with paragraph 8-35l(8), NGR 600-200, by reason of medical unfitness for retention. 

10.  On an unknown date in 2005, the applicant filed a disability claim with the DVA.  That claim was apparently denied and he appealed that denial.  In an 18 October 2006 de novo review, the DVA reversed its original decision and granted the applicant service connection for:  migraine and tension headaches with an evaluation of 30 percent; post traumatic stress disorder (PTSD) with an evaluation of 30 percent; tendinitis and bursitis in the right shoulder with an evaluation of 10 percent; tinnitus with an evaluation of 10 percent; and bilateral hearing loss with an evaluation of 0 percent.  The DVA awarded a combined evaluation of 60 percent.

11.  NGR 600-200 governs procedures for enlisted personnel of the Army National Guard.  Paragraph 8-35 covers reasons, applicability, codes, and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG.  Paragraph 8-35l(8) provides for the separation of personnel who are found medically unfit for retention under the provisions of chapter 3 of AR 40-501 and also states to refer to AR 135-178.

12.  AR 135-178 prescribes the policies for the separation of enlisted Soldiers from the Reserve Components.  Chapter 15 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness.  It requires, in pertinent part, that a Soldier be notified if he was determined to be medically disqualified for continued service in the USAR.  Along with the notification, the Soldier is required to acknowledge the notification and elect one of the following options on the notification of medical unfitness for retention and election of options: 

	a.  request reassignment to the Retired Reserve in accordance with AR    140-10 (Assignments, Attachments, Details, and Transfers), if he/she had completed 20 qualifying years;

	b.  request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 (15-year retirement);


	c.  request honorable discharge from the USAR; or

	d.  request an informal Medical Evaluation Board (MEB))/ Physical Evaluation Board (PEB) to review his/her medical records for a final determination of his/her medical fitness for retention.

13.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system 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/her office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of AR 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

14.  Paragraph 3-1 provides that the mere presence of 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.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

15.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states 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.  The regulation also states 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/her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

16.  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 or an increase to 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 the 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/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his narrative reason for discharge should be changed to retirement was carefully considered.  However, there is insufficient evidence to grant the applicant the requested relief. 

2.  The applicant suffered from ulcerative colitis, a non-duty related medical condition which rendered him unfit for continued ARNG service.  This was the only medical condition the ARNG considered in its evaluation of the applicant.  He was never evaluated for PTSD, migraines, tendinitis and bursitis, tinnitus, or bilateral hearing loss either by the ARNG or by the active Army.  When afforded the opportunity to go before a NDPEB for his ulcerative colitis, he could have done so and presented these other conditions for evaluation, but he elected not to do so.

3.  There is no evidence in the available records and the applicant did not submit any substantiating evidence that shows his PTSD, migraines, tendinitis and bursitis, tinnitus, and bilateral hearing loss would have rendered him unfit.  The Army must find that a Soldier is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before the Soldier can be medically retired or separated.  The applicant was honorably released from active duty for completion of his term of service with no apparent medical problems.

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.



      ________XXX______________
               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)                                         AR20080015612



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ABCMR Record of Proceedings (cont)                                         AR20080015612



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