IN THE CASE OF:	  

		BOARD DATE:	        14 APRIL 2009

		DOCKET NUMBER:  AR20090000718 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 February 2006, be corrected to show that he was discharged or retired by reason of permanent physical disability with the appropriate disability rating percentage.

2.  The applicant states, in effect, that his medical evaluation board (MEBD) was not properly conducted and he was not properly rated.  He further states that the physical evaluation board (PEB) found him fit for duty; however, because he had a permanent (P3) physical profile, he was denied reenlistment.  However, if he was fit for duty he should have been allowed to reenlist or else separated by reason of permanent physical disability.  He goes on to state that as a result of the unjust actions by the PEB, he has been denied benefits that he should have been afforded, which is supported by the fact that the Department of Veterans Affairs (VA) gave him a 50 percent (%) disability rating effective the day following his separation from active duty.

3.  The applicant provides a three-page statement explaining his application, copies of his DD Forms 214, a copy of his physical profile, a copy of his PEB Proceedings, a copy of a privacy release form authorizing his congressional representative to act in his behalf, copies of letters to and from his congressional representative, numerous medical documents and counseling statements, and a copy of his VA Rating decision.



CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the U.S. Army Reserve (USAR) on 28 August 1995 and served in the USAR until he was honorably discharged on 25 March 1997 to enlist in the Regular Army.

2.  He enlisted in the Regular Army on 26 March 1997 and served as a dental specialist until he was honorably discharged on 26 December 2003 in Vicenza, Italy by reason of completion of required service, in the pay grade of E-4.  He had served 7 years, 1 month, and 7 days of total active service. 

3.  He enlisted in the USAR on 27 December 2003, while residing in Italy, and subsequently attended personnel services specialist training.  He was subsequently awarded military occupational specialty (MOS) 42A (human resources specialist). 

4.  He was ordered to active duty in support of Operation Enduring Freedom on 23 November 2004.  On 3 April 2005, he was promoted to the pay grade of E-5.

5.  On 24 May 2005, the applicant was issued a P3 physical profile.  Item 10 (Other e.g. Functional Limitations and capabilities and other comments) of his DA Form 3310 (Physical Profile) shows "Requires CPAP [Continuous Positive Airway Pressure] machine to sleep.  Status post obstructive sleep apnea surgery in 2001.  Last sleep study was in Landstuhl [Germany] in Mar[ch] 2005, with CPAP machine.  Needs Med Board since he is non-deployable according to Dr. Marco LSL Pulmonary, on note dated 18 May 05 from Dr. Aaronson, Internist US Army Health Clinic Vicenza."

6.  The applicant did not provide and the available records do not indicate that the applicant appeared before an MEBD.  However, the applicant did provide a copy of his PEB proceedings which convened in Washington, D.C. on
9 September 2005.  The PEB determined that the applicant was fit and should be returned for duty.  The PEB also noted that the applicant's commander stated that his duty performance has been outstanding, that his condition does not impact his ability to perform, and he recommended retention.  The applicant initially did not concur on 13 September 2005; however, on 14 September 2005, he concurred with the findings and recommendation of the PEB.

7.  On 25 February 2006, the applicant was honorably released from active duty (REFRAD) due to completion of required service and was returned to his USAR unit.  He had served 1 year, 4 months and 8 days of active service during his recall.

8.  On 2 May 2006, the applicant received his first NCO [Noncommissioned Officer] Evaluation Report (NCOER) covering the period from April 2005 to February 2006.  His rater gave him all excellent, success, and among the best ratings and his senior rater rated him as a number 2 under performance and potential and recommended that he be promoted now.  There is no indication in that report that the applicant could not perform his duties.

9.  On 19 July 2006, orders were published by Headquarters, 7th Army Reserve Command which honorably discharged the applicant from the USAR.  The additional instructions on those orders indicate that the applicant was held beyond his normal discharge date through no fault of his own.  It further indicated that the applicant had fulfilled the 90-day stop loss obligation after REFRAD and did not want to reenlist. 

10.  A review of the applicant's official records failed to show any indication that the applicant was in any way barred from or denied reenlistment in the USAR.

11.  On 8 September 2006, the VA gave the applicant a 50% disabling rating for sleep apnea to be effective 26 February 2006.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), provides that the mere presence of an 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 may reasonably be expected to perform because of his or her office, rank, grade or rating. 

13.  Title 38, U.S. Code, sections 310 and 331, 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.



14.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her 
grade, rank or rating.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

15.  Army Regulation 135-178 (Army National Guard and USAR Enlisted Administrative Separations), provides in paragraph 6-7 that the separation authority may approve discharge under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of military duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been discharged or retired by reason of physical disability instead of being REFRAD on 25 February 2006 has been noted and appears to lack merit.

2.  The applicant underwent an evaluation under the Physical Disability Evaluation System (PDES) and was found fit for duty by the PEB.  The PEB's decision was based in part by the immediate commander's assessment that his performance of duty was outstanding and his recommendation that he be retained.  Accordingly, he was properly REFRAD and was returned to his USAR unit for further duty.

3.  In the absence of evidence to show that he was not fit for retention and/or separation, it must be presumed that he was properly deemed fit for separation at the time he was honorably REFRAD on 25 February 2006.

4.  The applicant's contention that he was denied reenlistment has been noted and also appears to lack merit.  Not only has the applicant failed to show through the evidence of record and the evidence submitted with his application that he was denied reenlistment, his discharge orders indicate that he did not want to reenlist.  Therefore, in the absence to show that he was unjustly denied reenlistment, there is no basis to further consider that matter.




5.  The fact that the VA awarded the applicant a service-connected disability rating was noted.  However, an award of a VA 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 VA, 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 VA 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 VA may rate any service connected impairment, including those that are detected after separation, in order to compensate the individual for loss of civilian employability.  

6.  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)                                         AR20090000718



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ABCMR Record of Proceedings (cont)                                         AR20090000718



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