IN THE CASE OF:	  

		BOARD DATE:	  17 March 2009

		DOCKET NUMBER:  AR20080017848 


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 honorable discharge be changed to a medical discharge.  

2.  The applicant states, in effect, that he received a 100 percent (%) disability rating from the Department of Veterans Affairs (VA) less than 1 year after his release from active duty (REFRAD).   

3.  The applicant provides a VA rating decision in support of his application.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, an equitable review of the applicant's case by the Board.  

2.  Counsel states, in effect, that the issues raised in the application amply advance the applicant's contentions and substantially reflect the probative facts needed for equitable review.   

3.  Counsel provides a statement is support of the application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he has served in the Army National Guard (ARNG) since July 1983, and that his current expiration of term of service is 
5 July 2013.  The applicant's Official Military Personnel File (OMPF) is void of any indication that the applicant has been or is being processed for discharge from the ARNG.  

2.  The applicant's record shows that on 30 July 2006, while serving in the Indiana ARNG (INARNG), he was ordered to active duty in support of Operation Iraqi Freedom.  He served on active duty for 1 year, 3 months, and 24 days until 
23 November 2007, at which time he was honorably released from active duty (REFRAD), by reason of completion of required active service, and returned to his ARNG unit.  

3.  On 1 March 2008, the applicant was reassigned from the 139th Field Artillery Battalion, Lafayette, Indiana, to the 1438th Transportation Company, Edinburgh, Indiana.  

4.  The applicant's OMPF contains an annual Noncommissioned Officer Evaluation Report (NCOER) covering the period from 30 November 2007 through 31 October 2008, which evaluated the applicant as a squad leader in the 1438th Transportation Company.  In the Physical Fitness & Military Bearing portion of the report, the applicant received a "Success" rating, which was supported with bullet comments that included "has the physical toughness to surpass the requirements for the position presently occupied."  The applicant authenticated this document with his signature on 7 December 2008.  

5.  The applicant's OMPF is void of any medical treatment records that indicate the applicant suffered from a physically disqualifying condition that would have supported his separation processing through medical channels at the time of his REFRAD on 23 November 2007. 

6.  The applicant provides a VA rating decision, dated 7 October 2008, which shows the applicant was granted service-connection for the following conditions with the disability percentage indicated:  Progressive Dyspnea with Left Hemidiaphragm Paralysis, 60% effective 24 November 2007 and 100% effective 12 February 2008; Post Traumatic Stress Disorder (PTSD), 70%; Left Ankle Foot Injury Post-Surgery, 20%; and Tinnitus Bilateral, 10%.  

7.  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.  

8.  Chapter 3 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  

9.  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.  A presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  

10.  Paragraph 3-5 of the disability regulation provides guidance on the use of the VA Schedule for Rating Disabilities (VASRD).  It states, in pertinent part, that the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. 

11.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEBD) to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEBD determines a Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).  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.

12.  Title 38, U.S. 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 assigned by proper military medical authorities at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been separated by reason of physical disability when he was REFRAD on 23 November 2007 was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, the mere presence of impairment does not, in and 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 the applicant was REFRAD on 23 November 2007, by reason of completion of required active service.  There is no medical evidence of record that indicates the applicant was suffering from a disabling condition that rendered him unfit to perform his duties and/or for further service, or that would have supported his medical processing through the PDES at the time of his separation from active duty.  

4.  Further, the applicant's record shows he continued to satisfactorily perform his military duties upon his return to his INARNG unit, as evidenced by his transfer in March 2008 and the NCOER he received in December 2008.  As a result, given the fact he successfully completed his active duty service and was medically qualified to continue performing his duties in the ARNG for more than a year after his REFRAD, it appears he was medically qualified for retention at the time of his REFRAD.  

5.  The medical treatment records referred to in the VA rating decision provided by the applicant outline the medical treatment he underwent while he was on active duty, and that he received as follow-up treatment after his REFRAD and return to his INARNG unit.  However, these treatment records fail to show he had a physically disabling condition that would have warranted his separation processing through the PDES at the time of his REFRAD.   

6.  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 or unfitting 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)                                         AR20080017848



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ABCMR Record of Proceedings (cont)                                         AR20080017848



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