IN THE CASE OF:	  

		BOARD DATE:	  16 April 2009

		DOCKET NUMBER:  AR20090001511 


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, reconsideration of his request for changing his 31 March 2005 discharge to a retirement due to a 100 percent permanent physical disability.  

2.  The applicant states, in effect, that since he was under narcotic medication for his condition, he was unable to make the correct decision in his case.  He also states, in effect, that it is an injustice and discrimination that someone eliminated one of his files.  He was ordered to active duty in support of Operation Noble Eagle and in that mission he was injured and received treatment at Womack Army Medical Center, Fort Bragg, North Carolina.  In 2004, he was again ordered to active duty to receive medical treatment for his injuries.  He further states, in effect, he underwent two surgeries and was placed on 30 days convalescent leave after each surgery.  Due to his injuries on active duty, he lost his civil employment with the State police.  

3.  In support of his request, the applicant provides copies of his 2003 active duty orders, two DA Forms 2173 (Statement of Medical Examination and Duty Status), three Statement of Medical Condition and Treatment Plan memoranda, a Request for ADME (Active Duty Medical Extension) Status memorandum, a DA Form 4187 (Personnel Action), his 2004 active duty orders, and three DD Forms 689 (Individual Sick Slip).




CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070018024, on 10 June 2008.

2.  The applicant submits copies of two DA Forms 2173, both dated 9 December 2003, that show on 17 November 2003 he received treatment for low back and shoulder pain and high blood pressure.  He also submits three Statement of Medical Condition and Treatment Plan memoranda that show in January 2004 he was to receive a nerve block (epidural) and physical therapy for his low back pain through August 2008.  He further submits a memorandum, dated 27 January 2004, wherein he requested extension on active duty to received medical treatment for his injuries.  These documents are new evidence that will be considered by the Board.

3.  The applicant's military records show he enlisted in the Puerto Rico Army National Guard (PRARNG) on 5 November 1976, for 6 years.  After three extensions, he extended his enlistment in the PRARNG on 14 October 2000, for 6 years.  He was ordered to active duty in support of Operation Noble Eagle and entered on active duty on 14 February 2003.  

4.  The applicant was honorably released from active duty on 1 January 2004 and reverted back to the PRARNG.  He was again ordered to active duty and entered on active duty on 2 January 2004.

5.  Orders Number A-04-402979, dated 5 April 2004, medically extended the applicant on active duty.  DD Forms 689 show he was granted convalescent leave ranging from 2 weeks to 30 days on 18 June 2004, 2 August 2004, and 1 October 2004.

6.  On 7 February 2005, a Formal Physical Evaluation Board (PEB) convened and considered the applicant's disabilities of chronic back pain, right lower extremity radiculopathy, and chronic left shoulder pain.  The board reevaluated all available medical records and statements by counsel submitted on the applicant's behalf.  The board denied the applicant's application for continuance on active duty.  The PEB found the applicant physically unfit and recommended a combined rating of 20 percent and directed his separation with severance pay.

7.  An advisory opinion provided in the applicant's previous request from the United States Army Physical Disability Agency stated that on 3 March 2005, the formal PEB reviewed additional medical reports provided by the applicant and they reaffirmed their prior findings.  The applicant requested to be transferred to the Retired Reserve instead of separation with severance pay.  On 21 March 2005, his request was approved and his disability separation was closed without further action.

8.  The applicant was honorably released from active duty on 31 March 2005 and transferred to the Retired Reserve.

9.  On 22 March 2007, the applicant was awarded a 100 percent service-connected disability rating from the Department of Veterans Affairs (DVA).  

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of error or injustice in the applicant's physical evaluation process for his conditions.  The applicant has failed to show, with the evidence submitted with his request for reconsideration and with the evidence of record, that he should have received a higher disability rating percentage and retirement due to permanent physical disability.

2.  A PEB found the applicant physically unfit and recommended a combined rating of 20 percent and separation with severance pay.  The applicant was discharged on 31 March 2005 and elected to be transferred to the Retired Reserve in order to receive retired pay at age 60 instead of separation with severance pay. 

3.  It is noted that while the applicant was awarded a 100 percent service-connected disability rating from the DVA in 2007, the award of a DVA rating or an increase of a DVA rating does not establish entitlement to a medical discharge and/or medical retirement.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, the applicant was properly evaluated and is being compensated for his service-connected medical conditions by the DVA.

4.  The overall merits of the case, including the latest arguments are insufficient as a basis for a reversal of the Board's previous decision.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070018024, dated 10 June 2008.




      _______ _   _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)                                         AR20090001511



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001511


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1