IN THE CASE OF:	  

		BOARD DATE:	        24 MARCH 2009

		DOCKET NUMBER:  AR20080016859 


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 that he be medically retired by reason of physical disability with immediate pay and benefits instead of being medically disqualified and being transferred to the Retired Reserve.

2.  The applicant states that he has been on Department of Veterans Affairs (VA) disability since October 2006 and he has over 22 years of service. 

3.  The applicant provides a hand-written statement from a VA orthopedic surgeon, dated in August 2006; a copy of his VA Rating Decision granting him a 30 percent disability rating, effective 4 October 2006 and a 40 percent disability rating effective 27 June 2007; and a copy of orders transferring him to the Retired Reserve.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records, though somewhat incomplete, show that he was born on 3 May 1956 and that he initially enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) on 2 August 1974.  He was discharged from the DEP on 2 September 1974 and enlisted in the Regular Army on
3 September 1974.  He served on active duty through continuous reenlistments until he was honorably discharged on 24 June 1983.

2.  He enlisted in the Army National Guard (ARNG) on 30 April 1989 and served in the ARNG until he was honorably discharged on 29 April 1999 and transferred to the USAR.
3.  He continued to serve in the USAR and on 2 November 2006, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  The applicant will attain 60 years of age on 3 May 2016. 

4.  On 10 August 2007, a Physical Evaluation Board (PEB) convened in Washington, D.C. to conduct a Reserve Component Non-Duty related fitness determination on the applicant based on a diagnosis of right knee degenerative joint disease.  The applicant elected not to appear before that board and was represented by counsel in the rank of lieutenant colonel.  The case was adjudicated as a non-duty related case under the provisions of Department of Defense Directive (DODD) 1332.18, paragraph 3.5 and DOD Instruction (DODI) 1332.38, part II.  The PEB found that the applicant was unfit for retention and recommended that his case be referred for disposition under Reserve Component Regulations.  The applicant was also advised that if he had completed 20 years of creditable service, he could request transfer to the Retired Reserve. 

5.  On 14 September 2007, the applicant was released from his USAR unit and transferred to the Retired Reserve due to being medically disqualified - not result of own misconduct.

6.  Title 10, U.S. Code, chapter 61 (Retirement or Separation for Physical Disability) provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty.  However, the disability must have been the proximate result of performing military duty.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 8-3, provides that in order for a Reservist to receive compensation for disabilities incurred while they are serving on less than 30 days of active duty, there was be a determination that the unfitting condition was the proximate result of performing duty.  This determination is different from a line of duty determination which establishes whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a casual relationship between the disability and the required military duty.

8.  U.S. Army Physical Disability Agency (USAPDA) Policy Guidance/
Memorandum Number 4 (Processing Reserve Component (RC) Nonduty Related Cases), dated 28 February 2005, states, in pertinent part, that DODI 1332.38, definition E.1.20 (page 9), defines non-duty-reported (sic) impairments as: 

"Impairments of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation.  Members with non-duty related impairments are eligible to be referred to the PEB for solely a fitness determination but not a determination of eligibility for disability benefits."

9.  USAPDA Policy/Guidance Memorandum Number 4 also states, in pertinent part, that the determination of whether a case is forwarded to the PEB as a nonduty-related case (as opposed to a duty-related case) rests with the RC.  The Soldier may not challenge this determination before the PEB.  As a nonduty-related case, only the issue of fitness will be adjudicated by the PEB.  Issue relating to line-of-duty, permanent service aggravation, and entitlement to disability compensation will not be considered.  Whether a case comes into the Physical Disability Evaluation System (PDES) as a duty-related or nonduty-related case is the decision of the RC chain of command.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be retired by reason of permanent physical disability with immediate entitlement to pay and benefits has been noted and found to lack merit.  The applicant's case was properly adjudicated as a nonduty-related case in accordance with applicable directives with no indication of any violations of any of the applicant's rights. 

2.  Inasmuch as he had already received his 20-year letter for non-regular retirement at age 60, he was allowed to request transfer to the Retired Reserve in lieu of being discharged from the USAR due to medical disqualification.

3.  Inasmuch as he was not entitled to be medically retired with entitlement to immediate pay and benefits, there appears to be no basis to grant his request.

4.  The fact that the DVA awarded the applicant a service-connected disability rating was noted.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of 

disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of separation, while the DVA may rate any service connected impairment, including those that are detected after separation, in order to compensate the individual for loss of civilian employability.  

5.  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 this requirement.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      ________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)                                         AR20080016859



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ABCMR Record of Proceedings (cont)                                         AR20080016859



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