IN THE CASE OF:	  

		BOARD DATE: 	        12 May 2009

		DOCKET NUMBER:  AR20090001194 


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 a medical retirement.

2.  The applicant states, in effect, that he was separated from the Army in March 1993 primarily because his physical condition was no longer compatible with continuing military service due to injuries he sustained while serving in Iraq during Operation Desert Storm.  He contends that his chain of command wrongfully advised him to address these medical conditions through the Department of Veterans Affairs (DVA) to avoid separation delays and that he trusted his chain of command and believed they had his best interest in mind.  He states that he suffers from Post Traumatic Stress Disorder (PTSD), a back injury, an eye injury, hemorrhoids, loss of vision, excessive tearing of the eye, and an undiagnosed illness.  He claims that all of these conditions existed while on active duty, that he was assigned to light duty status during the last few months of his active duty service, and that he was pending a medical evaluation and final separation.  He goes on to state that the evaluation was initiated while on active duty but completed during the DVA physical process.  As such, his separation was erroneously classified as a regular separation instead of a medical retirement.      

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 March 1993; service personnel and medical records, DVA documentation; and correspondence from a Member of Congress 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 records covering his active duty service from 2 March 1989 to 1 March 1993 are not available to the Board.  This case is being considered using reconstructed records, which primarily consists of his DD Form 214 for the period ending 1 March 1993 and a DA Form 2-1 (Personnel Qualification Record) .  

3.  The applicant enlisted in the Regular Army on 2 March 1989 and trained as an infantryman.  He served in Southwest Asia from 4 January 1991 through 
19 May 1991.  On 1 March 1993, he was released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 4, for expiration term of service.  He had served a total of 4 years of creditable active service.    

4.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to his release from active duty on 1 March 1993.

5.  The applicant enlisted in the Army National Guard on 2 March 1993 and was honorably discharged on 30 June 1996.  He enlisted in the Army National Guard on 22 January 1997 for a period of 3 years.  He was discharged under honorable conditions (a general discharge) on 31 December 1998 and assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his remaining service obligation.  On 25 January 2000, he was honorably discharged from the USAR.

6.  In support of his claim, the applicant provided DVA documentation, dated 2003, which shows he was granted service connection for lumbosacral strain, epiphora, PTSD, corneal abrasion with visual field constriction (left eye), and hemorrhoids.  He provided a letter, dated 24 September 2002, from his psychiatrist which states that the applicant was diagnosed with PTSD in April 2000 related to his military experiences in Saudi Arabia.  He also provided service medical records which show he was treated for an eye injury, hemorrhoids, and a back problem.    

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of that regulation provides, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

9.  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.

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.  The evidence of record does not support the applicant's contention that he was separated from the Army in March 1993 primarily because his physical condition was no longer compatible with continuing military service due to injuries sustained while serving in Iraq during Operation Desert Storm.  Evidence of record shows the applicant was honorably discharged for expiration term of service.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to his release from active duty on 1 March 1993.
2.  There is no evidence to show that the applicant could not perform his duties while on active duty.  In addition, the applicant subsequently served in the Army National Guard and the USAR during the period 1993 to 2000, indicating that he indeed was not medically unfit at the time he was released from active duty in 1993.  Therefore, there is insufficient evidence to show a medical retirement was warranted.

3.  The rating action by the DVA does not necessarily 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.  

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)                                         AR20090001194





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ABCMR Record of Proceedings (cont)                                         AR20090001194



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