IN THE CASE OF:	

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080016731 


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 his honorable discharge be changed to a medical retirement.  He also requests a copy of all of his medical records, medical discharge, and separation physical examination papers.

2.  The applicant states he was "medical boarded" from Irving Army Medical Center at Fort Riley, Kansas, and medically evacuated to Fitzsimmons Army Medical Center, Aurora, Colorado to be medically retired from the service. 

3.  The applicant provides a copy of a letter from the National Personnel Records Center in support of his application.

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 military personnel records show he enlisted in the Regular Army on 12 July 1977 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 75B (Personnel Administration Specialist).

3.  Item 35 (Record of Assignments) of the applicant's DA Form 2-1 (Personnel Qualification Record) show that upon completion of his advanced individual training he was assigned to Headquarters and Headquarters Company, U.S. Army Garrison, Fort Riley.  Item 35 does not show the applicant was assigned to Irving Army Medical Center or to Fitzsimmons Army Medical Center in a patient status.

4.  The applicant's service medical records were not available for review.

5.  The applicant's separation physical examination (Standard Form 88 [Report of Medical Examination]) indicates that he had suffered an injury to his neck and back.  However, the specifics of these injuries were not available.  Item 76A (Physical Profile) of the applicant's Standard Form 88 contains the Numerical designator "1" under all factors (PULHES).  The examiner found the applicant to be qualified for separation.

6.  On 11 July 1980, the applicant was released from active duty by reason of completion of required service.  He had completed 3 years of active service that was characterized as honorable.  

7.  The applicant's records contain an Optional Form 41 (Routing and Transmittal Slip), dated 3 September 1981, indicating the applicant as "reservist disqualified for retention."  Attached to the routing slip is a Veterans Administration (VA) [now known as the Department of Veterans Affairs] Rating Decision, dated
9 December 1980.  According to the VA Rating Decision, the applicant was awarded a combined disability rating of 70 percent for the following service-connected disabilities: fracture of Odontoid process with loss of motion of neck and muscle spasms; spastic reflexes, right and left upper extremities; spastic reflexes, right and left lower extremities; headaches; plantar warts; and low back pain.

8.  A letter, dated 8 January 1982, from the Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center informed the applicant that a review of his medical records revealed he did not meet the standards for retention in the U.S. Army Reserve (USAR) and entry on active duty.  He was advised he must elect discharge or transfer to the Retired Reserve.

9.  On 29 January 1982, the applicant elected to be discharged from the USAR.

10.  On 8 February 1982, the applicant was discharged from the USAR with an honorable discharge.

11.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

13.  Title 38, U. S. Code, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the 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.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's separation examination shows he did receive an injury to his neck and back while he was on active duty.  However, the numerical designator "1" under all factors of the PULHES indicates that he was considered to possess a high level of medical fitness and he was found to be qualified for separation.

2.  The applicant completed the full period of his enlistment.  There is no evidence the applicant was not medically qualified to perform duty or that he failed to meet retention criteria.  There is no evidence the applicant was referred to an MEBD.  Without an MEBD, 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 retired for physical unfitness.

3.  The fact that the DVA awarded the applicant a combined disability rating of 
70 percent is a prerogative exercised within the policies of that agency.  The VA does not determine medical unfitness for service, but only that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Therefore, a rating awarded by the VA after the applicant was discharged does not, in of itself, establish physical unfitness for Department of the Army purposes.

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 has failed to submit evidence that would satisfy that requirement.

5.  The applicant's request for a copy of his service medical records should be directed to the VA.  Based on the fact that he received a VA rating, his service medical records are likely on file with that agency.

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)                                         AR20080016731



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ABCMR Record of Proceedings (cont)                                         AR20080016731



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