IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090000672 


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 his honorable discharge from the Army National Guard be changed to a medical discharge.

2.  The applicant provides no explanation. 

3.  The applicant provides Department of Veterans Affairs (DVA) documentation, medical records, and a DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard on 29 March 1999 for a period of 8 years.  He was appointed a second lieutenant effective 13 June 2003.

2.  On 16 October 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  He served in Iraq from 26 March 2004 to 17 March 2005.  

3.  On 14 February 2005, the applicant’s vehicle sustained an explosion from an improvised explosive device (IED) and the applicant sustained an injury to the right knee and a concussion.  He was treated at the theater medical treatment facility the following day and returned to duty.  

4.  On 31 March 2005, the applicant was honorably released from active duty and was returned to the Army National Guard.  He was promoted to the rank of first lieutenant on 1 September 2005.     

5.  On 21 November 2007, the applicant tendered his resignation as an officer of the Army National Guard and the United States Army Reserve to be effective 
30 December 2007.  His request is not available.  State orders show the applicant was honorably discharged from the Army National Guard under the provisions of National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a(3)(a).  On 8 February 2008, he was honorably discharged from the Army National Guard of the United States under the provisions of National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), chapter 2 (Appointments) and all Reserve of the Army appointments were terminated.

6.  In support of his claim, the applicant provided a DVA Rating Decision, dated 
2 May 2006, which states that his service-connected compensation for evaluation of headaches, residuals of head concussion was increased from 30 percent to 
50 percent.  He provided DVA documentation which shows he was granted service connection for tinnitus.  He provided a service medical record, dated 
15 February 2005, which shows he sustained a concussion/head trauma and a knee injury when his vehicle was struck by an IED in Iraq.  He also provided a service medical record which shows he had a three year history of right shoulder pain after an injury doing pull-ups which was further exacerbated after the IED incident.  

7.  Paragraph 5a(3)(a) of National Guard Regulation 635-100 states that an officer may tender a resignation through channels to the State Adjutant General.  If accepted, the State Adjutant General will publish orders separating the officer from his Army National Guard appointment and furnish copies to the Chief, National Guard Bureau.  The resignation may also be concurrent from the Army National Guard and Reserve of the Army for officers without a remaining service obligation.

8.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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 his or her office, grade, or rank.  It 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.  When a Soldier is being processed for separation 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 indicates that a Soldier is fit.  

10.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  Although it appears the applicant now contends that his discharge should be changed to a medical discharge due to injuries he suffered on 14 February 2005 in Iraq, there is no evidence of record to show he was ever medically unfit to perform his duties.  He was treated for his injuries on 15 February 2005 and was returned to duty.  In addition, evidence of record shows the applicant subsequently successfully served in the Army National Guard for almost 3 years prior to requesting resignation and, as a result, he was honorably discharged.  

2. The rating action by the DVA does not demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability.  Therefore, there is no basis for granting a medical discharge. 



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)                                         AR20090000672



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ABCMR Record of Proceedings (cont)                                         AR20090000672



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