IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20090001898 


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 correction of his records to show that he was medically retired instead of showing that he was released from active duty (REFRAD) due to parenthood.

2.  The applicant states that while he was on active duty awaiting a medical board for discharge, his wife left him to be a single father to a newborn.  He states that he was discharged under the provisions of Army Regulation 635-200, chapter 6, due to parenthood.  He states that since he was “on his way out medically and needed to tend to his son,” his command believed that a discharge due to parenthood would be best.  He states that he was awarded a 40 percent service connected disability rating by the Department of Veteran Affairs (VA) from the time of his discharge and that his disability rating was increased to 60 percent with 100 percent unemployability on 1 June 1997.  He states that he has since been awarded additional 10 percent and 60 percent service connected disability ratings.  

3.  The applicant provides in support of his application, a list of accompanying documentation; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of a United States (US) Army Accident Report (DA Form 285) dated 16 February 1994; a copy of his VA Rating Decision dated 11 June 1996; a copy of his VA Rating Decision dated 5 May 1997; a copy of his VA Rating Decision dated 26 September 2005, pertaining to his appeal; a copy of VA Rating Decision dated 17 October 2008, pertaining to his appeal; a self authored letter addressed to the Army Review Boards Agency dated 17 February 

2009; a copy of a letter to him dated 13 February 2009; a copy of a Medical Statement dated 2 August 1994; and a copy of a Physical Profile (DA Form 3349) dated 28 July 1994.

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.  On 22 May 1992, the applicant enlisted in the United States Army Reserve (USAR) in Pittsburgh, Pennsylvania, for 8 years, in the pay grade of E-1.  The available records indicate that he enlisted in the Regular Army (RA) on 15 November 1993 and that he successfully completed his training as a carpentry and masonry specialist.

3.  The DA Form 285 that the applicant submitted in support of his application shows that on 7 January 1994, he sprained/strained his back and leg while he was loading a “light set,” when one person lost his grip and he was still lifting approximately 350 pounds.

4.  The DA Form 3349 that the applicant submitted in support of his application shows that he was placed on a permanent physical profile on 28 July 1994 for low back pain (Degenerative Discs).  The physical profile included limited Army Physical Fitness Tests and the DA Form 3349 reads “Chapter Discharge Pending; No LBE Wear.”

5.  A Medical Statement dated 2 August 1994 that the applicant submitted in support of his application was prepared by the United States Army Department Activity, Orthopedic Clinic, and the attending physician stated that he had been following the applicant since 13 January 1994 for complaints of chronic, recurrent severe low back pain.  The physician stated that his medical workup indicated that the applicant’s pain was secondary to degenerative lumbosacral disc disease and that it was anticipated that he would have continued recurrent episodes of exacerbation from time to time for many years to come.  The physician stated that the applicant informed him that he had requested a chapter discharge due to severe family hardships and that he believed it would probably be in his best interest.  He stated that a positive prognosis could only be predicted if the applicant was allowed to drastically alter his life-style and activity levels and that he did not believe this was possible as long as he remained in the military.  He stated that the applicant “may be eligible for Medical Evaluation Board proceedings, but this is not an expeditious process and will require anywhere from six months to a year to completion prior to his separation.”  The physician stated that in view of the applicant’s family hardships, he recommended expeditious chapter proceedings to facilitate his separation from the military and to allow him to follow up with the VA system for ongoing care.

6.  On 26 May 1994, the applicant was honorably REFRAD under the provisions of Army Regulation 635-200, chapter 6-3B(2), due to parenthood and he was transferred to the USAR Control Group (Annual Training).  He had completed 10 months and 12 days of net active service.

7.  The applicant enlisted in the Pennsylvania Army National Guard (PAARNG) for 5 years and 4 months on 20 January 1995.  He was released from the PAARNG on 18 August 1996, under the provisions of National Guard Regulation 600-200, paragraph 8-27, at the request of the Soldier, upon receipt of VA disability.

8.  The VA Rating Decision that the applicant submitted in support of his application dated 11 June 1996, shows that he was awarded a 40 percent service connected disability rating for low back pain.  His VA rating was increased to 60 percent disabling and he was informed that he was entitled to a 100 percent evaluation based on his individual unemployability effective 3 May 1997.

9.  His VA Rating Decision dated 26 September 2005 shows that he was awarded a 10 percent disability rating for a left ankle disability manifested by instability and early degenerative joint changes.

10.  His VA Rating Decision dated 17 October 2008 shows that he was awarded a 60 percent service connected disability rating for L4-5, L5-S1 radiculopathy, left lower extremity effective 19 June 2007.  The VA Rating Decision shows that he has an overall combined rating of 90 percent; however, he continues to receive the 100 percent rate because he is unemployable.  

11.  Title 38, United States 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.  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.

12.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

13.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

14.  Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically retired instead of being REFRAD due to parenthood.

2.  His contentions have been noted along with the documents that he submitted in support of his appeal.  However, the applicant opted to be REFRAD due to parenthood instead of being processed for discharge through medical channels.

3.  The Medical Statement dated 2 August 1994 has been noted.  However, the physician stated that the applicant “may be eligible for Medical Evaluation Board proceedings, but this is not an expeditious process and will require anywhere from six months to a year to completion prior to his separation.”  The applicant may not have been eligible for Medical Evaluation Board proceedings at the time of his REFRAD.  At this point to say he would have been found unfit for retention in the Army would only be speculation.  He opted not to wait for a determination to be made as to whether or not he was eligible to be processed for discharge through medical channels.  
4.  Additionally, the applicant went on to enlist in the PAARNG after his release from the RA and his performance of duty despite his impairment was considered presumptive evidence of physical fitness at the time of his REFRAD. 

5.  As previously stated 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.

6.  In order to justify correction of a military record the applicant must show 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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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.




      _______ _ 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)                                         AR20090001898



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ABCMR Record of Proceedings (cont)                                         AR20090001898



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