IN THE CASE OF:	

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090002255 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 January 2006 to show award of the Valorous Unit Award, two awards of the Army Reserve Components Achievement Medal, the Bronze Star Medal, and the Purple Heart.  He also requests that his 2006 honorable discharge be changed to a medical discharge. 

2.  The applicant states, in effect, that some of his awards are not shown on his DD Forms 214 for the periods ending 6 June 1986, 8 May 1991, or 14 January 2006 or his DD Form 215 (Correction to DD Form 214) dated 13 February 1992.  

3.  The applicant states that he was discharged due to his injuries incurred in Iraq in 2005; however, his DD Form 214 for the period ending 14 January 2006 does not show that he was medically retired.  

4.  The applicant provides two applications; an award certificate and memorandum for award of the Valorous Unit Award; a memorandum, dated 
19 October 2005, for the Shoulder Sleeve Insignia for Former Wartime Service; memoranda for the first and second awards of the Army Reserve Components Achievement Medal; a DA Form 638 (Recommendation for Award), dated 
15 June 2005; DA Forms 2173 (Statement of Medical Examination and Duty Status); service medical records; active duty orders; DD Forms 214 for the periods ending 6 June 1986, 8 May 1991, and 14 January 2006; a DD Form 215; a National Guard Bureau Form 22 (Report of Separation and Record of Service); an oath of extension of enlistment or reenlistment; and Department of Veterans Affairs (DVA) documentation in support of his applications.    

CONSIDERATION OF EVIDENCE:

1.  The applicant's request for award of the Purple Heart was addressed by separate correspondence.  Therefore, this portion of the applicant's request will not be discussed further in these proceedings. 

2.  The applicant enlisted in the Regular Army on 17 August 1983.  He served as a bridge crewman and was released from active duty on 6 June 1986 and transferred to the U.S. Army Reserve (USAR) to complete his remaining service obligation. 

3.  The applicant's DD Form 214 for the period ending 6 June 1986 does not show the Valorous Unit Award, two awards of the Army Reserve Components Achievement Medal, or the Bronze Star Medal as authorized awards.   

4.  The applicant was ordered to active duty on 11 December 1990 in support of Operation Desert Shield/Storm.  He served in Southwest Asia from 12 January 1991 to 6 May 1991.  He was released from active duty on 8 May 1991.  

5.  The applicant's DD Form 214 for the period ending 8 May 1991 does not show the Valorous Unit Award, two awards of the Army Reserve Components Achievement Medal, or the Bronze Star Medal as authorized awards.   

6.  The applicant's DD Form 215, dated 13 February 1992, does not show the Valorous Unit Award, two awards of the Army Reserve Components Achievement Medal, or the Bronze Star Medal as authorized awards.   

7.  The applicant enlisted in the Army National Guard on 12 October 2001. 

8.  The applicant was ordered to active duty on 29 October 2004 in support of Operation Iraqi Freedom.  He served in Iraq from 29 December 2004 to 
13 December 2005.  

9.  The applicant provided a DA Form 2173, dated 28 March 2005, which states, in pertinent part, that he was hit by an improvised explosive device (IED) while riding in a vehicle in Iraq and that he suffered noise exposure from the IED with persistent tinnitus.   

10.  The applicant provided a memorandum for record, dated 19 October 2005, which states, in pertinent part, that he was attached to the 172nd Stryker Brigade Combat Team while deployed in support of Operation Iraqi Freedom from 
16 August 2005 to 15 August 2006. 

11.  The applicant provided a DA Form 2173, dated 22 November 2005, which shows he was evaluated in Iraq for left arm pain.  The form states that on 
5 November 2005 the applicant reported that his arm was hit by a troop hatch and that this injury occurred in May but he was not seen for it.  

12.  The applicant provided a U. S. Army Human Resources Command memorandum, dated 29 August 2007, showing for the Valorous Unit Award was awarded to "Headquarters and Headquarters Company," 172nd Infantry Brigade Combat Team and its subordinate units for the period 16 August 2005 to             3 December 2006.  He also provided an award certificate which states that the Valorous Unit Award was awarded to the 172nd Stryker Brigade Combat Team for the period 16 August 2005 to 3 December 2006.

13.  On 14 January 2006, the applicant was released from active duty.  

14.  The applicant's DD Form 214 for the period ending 14 January 2006 does not show the Valorous Unit Award, two awards of the Army Reserve Components Achievement Medal, or the Bronze Star Medal as authorized awards.  It does show one award of the Army Commendation Medal. 

15.  There are no orders for the Bronze Star Medal in the available records.  However, in support of his claim for the Bronze Star Medal, the applicant provided a DA Form 638, dated 15 June 2005, for award of the Bronze Star Medal for the period 10 June 2005 to 13 June 2005.  Item 29 (Approved Award) on the DA Form 638 provided by the applicant is blank.  Item 29 on the DA Form 638 in the applicant’s Official Military Personnel File on the Interactive Personnel Electronic Records Management System shows that an award of the Army Commendation Medal was awarded for the same period of time.   

16.  The applicant provided a memorandum, dated 2 September 2008, which shows he was awarded the first award of the Army Reserve Components Achievement Medal effective 11 October 2004.  He also provided a memorandum, dated 29 August 2008, which shows he was awarded the second award of the Army Reserve Components Achievement Medal effective 
11 October 2007.

17.  On 30 September 2008, the applicant was honorably discharged from the Army National Guard for being medically unfit for retention. 
18.  The applicant's NGB Form 22 shows, among other awards, the first award of the Army Reserve Components Achievement Medal.

19.  In support of his claim for a medical discharge, the applicant provided a DVA Rating Decision, dated 6 July 2007, which shows he was granted service connection for tinnitus (10 percent) and left ear hearing loss (0 percent).  He also provided a DVA Rating Decision, dated 17 December 2007, which shows he was granted service connection for post traumatic stress disorder (50 percent), osteoarthritis, left elbow (10 percent), and osteoarthritis, right elbow (10 percent).

20.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Army Reserve Components Achievement Medal is authorized for award to eligible Army Reserve Component Soldiers for exemplary behavior, efficiency, and fidelity while serving as a member of an Army National Guard or Army Reserve troop program unit or as an individual mobilization augmentee.  Between 3 March 1972 and 28 March 1995, the medal was authorized on completion of 4 years on or after 3 March 1972 and before 28 March 1995.  A qualifying year of service is one in which a Reserve Soldier earns a minimum of 50 retirement points during his/her retirement year.  Qualifying service for computation purposes is based only by retirement ending year dates.  Effective 28 March 1995, the period of qualifying service for award of the Army Reserve Component Achievement Medal was reduced from 4 to 3 years.  This change is not retroactive.  Such years of qualifying service must have been consecutive.  A period of more than 24 hours between Reserve enlistments or officer’s service will be considered a break in service.  Credit toward earning the award must begin anew after a break in service.  

21.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

22.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

23.  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.

24.  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.  

25.  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 applicant's unit (172nd Stryker Brigade Combat Team) was cited for award of the Valorous Unit Award while he was assigned to it.  Therefore, his DD Form 214 for the period ending 14 January 2006 should be corrected to show this unit award.  

2.  Evidence of record shows the applicant received the first award of the Army Reserve Components Achievement Medal effective 11 October 2004.  Therefore, his DD Form 214 for the period ending 14 January 2006 should be corrected to show this medal.  Since he was awarded the second award of the Army Reserve Components Achievement Medal effective 11 October 2007, after his release from active duty on 14 January 2006, there is no basis for amending his DD Form 214 for the period ending 14 January 2006 to show a second award of the Army Reserve Components Achievement Medal.   

3.  There are no orders for the Bronze Star Medal in the available records.  It appears the recommendation for award of the Bronze Star Medal (i.e., the DA Form 638) provided by the applicant was down-graded to award of the Army Commendation Medal.  Therefore, there is insufficient evidence on which to amend his DD Form 214 for the period ending 14 January 2006 to show the Bronze Star Medal. 

4.  Although it appears the applicant now contends that he should have been medically retired due to injuries he suffered in Iraq instead of being honorably released in January 2006 there is no evidence of record to show he was ever medically unfit to perform his duties at the time of his separation from active duty.  In addition, evidence of record shows the applicant subsequently served in the Army National Guard for over 2 and 1/2 years prior to being discharged for being medically unfit for retention.  Therefore, there is no basis for granting the applicant's request that his 2006 honorable discharge be changed to a medical discharge.   

5.  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.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all 


Department of the Army records of the individual concerned be corrected by adding the Valorous Unit Award and the Army Reserve Components Achievement Medal on his DD Form 214 for the period ending 14 January 2006.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending his DD Form 214 for the period ending 14 January 2006 to show a second award of the Army Reserve Components Achievement Medal or the Bronze Star Medal.  The Board also recommends denial of his request that his 2006 honorable discharge be changed to a medical discharge. 




      _______ _   _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)                                         AR20090002255



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ABCMR Record of Proceedings (cont)                                         AR20090002255



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