IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090002377 


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 he was medically discharged.

2.  The applicant states that he was wounded by an improvised explosive device (IED) during his service in Iraq and that during demobilization he was placed on medical hold at Fort Stewart, GA, for 4 months, and was ultimately released from active duty to the control of his Army National Guard (ARNG) unit in March 2007. During the next 7 months, he did fine; however, he began having multiple problems in October 2007 and his injuries became worse.  He subsequently started missing a lot of drills and raised the issue with his unit, but no one offered to send him to a medical review.  He was also absent from drills during medical screening in March 2008 as well as during weapons qualification and physical fitness test drills.  He ultimately retired on 1 December 2008 and during that same week learned from a Department of Veterans Affairs (VA) representative that he should have been medically discharged.  He concludes that if he had known, he would have asked about the medical review at his unit prior to retirement or at least he could have reenlisted until he could have had a physical evaluation board (PEB).

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 3 March 2007;

	b.  copy of Permanent Orders 165-06, dated 14 June 2007, awarding him the Purple Heart;

	c.  copies of DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 24 July 2006 and 19 June 2003; 

	d.  copy of Orders 231-094, issued by the South Carolina Army National Guard (SCARNG) on 19 August 2005;

	e.  copy of Permanent Orders 306-603, issued by Headquarters, I Corps and Fort Lewis, Fort Lewis, WA, on 2 November 2005;

	f.  copies of Standard Forms 600 (Chronological Record of Medical Care), dated on miscellaneous dates in October and November 2006;

	g.  copies of VA Rating Decisions, dated 1 February 2008, 31 July 2008, 26 November 2006, and 10 December 2008; and

	h.  copy of Permanent Orders 315-009, issued by the SCARNG on 10 November 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 27 June 1967 and enlisted in the SCARNG for a period of 6 years on 2 December 1986.  He subsequently entered active duty for training (ADT), completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 64C (later redesignated 88M) (Motor Transport Operator).  He was released from ADT to the control of his unit on 10 July 1987.

2.  The applicant’s records also show he executed several extensions in the SCARNG, including a 2-year extension on 6 November 1994, two 3-year extensions on 13 October 1996 and 12 September 1999, and a 6-year extension on 17 November 2002.  He was promoted through the ranks to sergeant/E-5 on 15 December 1999 and staff  sergeant/E-6 on 1 January 2004.

3.  On 15 March 2003, the applicant was ordered to active duty in support of Operation Enduring Freedom.  However, on 5 May 2003, during a live fire exercise, he experienced pain in his lower back radiating to his right leg and/or knee.  During examination, X-rays revealed he had a small central bulge at 
L5-S1.  He was prescribed orthopedic shoe inserts and was honorably released from active duty to the control of his ARNG unit on 28 June 2003.
4.  On 28 August 2005, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 5 November 2005 to 20 October 2006.

5.  On 14 July 2006, the applicant was a patrol leader of a route clearance patrol in Iraq when an IED detonated three meters away from his vehicle.  He was thrown about inside the badly damaged vehicle.  A piece of shrapnel penetrated the vehicle and cut into his Kevlar, forehead, and left side of his face.  He suffered ear damage and a hearing loss.

6.  Subsequent to his return from Iraq, on 4 December 2006, the U.S. Army Human Resources Command (HRC), Alexandria, VA, published Orders 
A-12-629504, ordering the applicant’s retention on active duty for a period of 179 days.  He was assigned to the Medical Retention Center at Fort Stewart, GA, to participate in the Reserve Component Medical Holdover Medical Retention Processing Program (MRP2) for completion of medical care and treatment.

7.  There is no indication that the applicant was issued a permanent medical profile or that he underwent a medical evaluation board (MEBD) or a physical evaluation board (PEB).

8.  On 26 February 2007, Headquarters, 3rd Infantry Division and Fort Stewart, Fort Stewart, GA, published Orders 057-0006, releasing the applicant from active duty not by reason of physical disability to the control of his ARNG unit effective 3 March 2007.  The DD Form 214 he was issued shows he was honorably released from active duty on 3 March 2007 for completion of required active service and that he completed 1 year, 2 months, and 14 days of creditable active service during this period.

9.  On 7 March 2007, HRC published Orders A-12-629504R, rescinding the unexecuted portion of the active duty orders issued on 4 December 2006 effective 3 March 2007.

10.  On 1 April 2007, SCARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

11.  The applicant’s DA Forms 1059 (Service School Academic Evaluation Report), dated 16 June 2007, show he successfully completed Phase 3 of the MOS 21N (Construction Equipment Supervisor) Basic Noncommissioned Officer (NCO) Course (BNCOC) from 1 June 2007 to 16 June 2007 and Phase 4 from 15 September 2007 to 29 September 2007.
12.  The applicant’s NCO Evaluation Report for the period 1 November 2006 to 31 October 2007 shows his rater rated his overall performance as successful and his overall potential for promotion and/or service in positions of greater responsibility as fully capable.  Additionally, his senior rater rated his overall potential for promotion and/or service in positions of greater responsibility as superior.

13.  On 26 October 2008, the applicant submitted a request for transfer to the Retired Reserve and on 4 November 2008 SCARNG issued Orders 309-809 directing the applicant’s honorable discharge from the ARNG and assignment to the U.S. Army Reserve Control Group (Retired Reserve) effective 1 December 2008.  The NGB Form 22 (Report of Separation and Record of Service) he was issued shows he completed 22 years of total service for pay.

14.  The applicant submitted copies of his Standard Form 600, dated on various dates in October and November 2006, that show the following:

	a.  on 26 October 2006, for otic barotrauma from several IED blasts, chronic neck pain from his IED blast on 30 June 2006, and chronic lower back pain; he was released without limitations;

	b.  on 30 October 2006, for an audiology evaluation; he was released without limitations;

	c.  on 31 October 2006, for a follow-up of his otic barotrauma, chronic neck and chronic lower back pain; he was released with work/duty limitations;

	d.  on 2, 7, and 21 November 2006, for an order of, receipt, and pick up of hearing aids; he was released without limitations; and

	e.  on 21 November 2006, for an overall medical evaluation; he was noted as having a degenerative disc disease of the cervical spine.

15.  The applicant submitted copies of his VA Rating Decisions as follows:

	a.  on 11 February 2008, he was awarded a 10-percent disability rating for cervical degenerative disc and joint disease, a 10-percent disability rating for lumbar degenerative disc and joint disease, a 10-percent disability rating for tinnitus, and a 10-percent disability rating for traumatic brain injury;

	b.  on 31 July 2008, he was awarded a 50-percent disability rating for post-traumatic stress disorder and a 10-percent disability rating for planter fasciitis, bilateral; and
	c.  on 26 November 2008, the VA increased his disability ratings for cervical degenerative disc and joint disease and lumbar degenerative disc and joint disease to 20 percent each.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEBDs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

17.  Paragraph 3-1 of Army Regulation 635-40 provides 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

18.  Paragraph 3-2b of Army Regulation 635-40 provides for retirement or separation from active service.  This provision of regulation 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.  The regulation also states that when a Soldier is being processed for separation or retirement 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 creates a presumption that the Soldier is fit.

19.  The Deputy Chief of Staff, G-1, Warrior Transition (WT) Unit Consolidated Administrative Guidance prescribes and updates policies and guidance for the care and management of WTs.  It states, in pertinent part, that the MRP2 program is designed to voluntarily return Soldiers back to temporary active duty, to evaluate or treat Reserve Component (RC) WT with an unresolved mobilization-connected medical condition that either was not identified or did not reach optimal medical benefit prior to their release from active duty (REFRAD).  This program applies to WTs previously REFRAD while mobilized under Title 10, U.S. Code, section 12302, partial mobilization orders for operations in support of the Global War on Terrorism (GWOT).  A medical review board must determine that the Soldier is eligible for MRP2.  RC Soldiers mobilized in support of GWOT are authorized continuing medical care while in an active duty status.  The MRP2 program is designed to address the recall of RC Soldiers with documented unresolved mobilization-connected medical conditions.  The Army will voluntarily recall to temporary active duty status a WT with a mobilization-connected line-of-duty (LOD) medical issue to evaluate or treat the illness, injury, or disease.  A Soldier is eligible with a documented LOD determination of "yes," documented unresolved medical issues, and a completed application submitted through the current chain of command.

20.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) is the standard under which-percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically discharged.

2.  The evidence of record shows that the applicant suffered an IED injury in Iraq. 
Upon his demobilization, he was identified as having an unresolved medical condition that warranted his retention on active duty and entry into the MRP2 program on 4 December 2006.  However, there is no evidence that his medical condition warranted his entry into the physical disability evaluation system.  Accordingly, he was honorably released from active duty to the control of his ARNG unit on 3 March 2007.

3.  The applicant’s successful performance review from November 2006 to October 2007 and his attendance at and completion of resident MOS 21N BNCOC from 1 June 2007 to 16 June 2007 and 15 September 2007 to 29 September 2007 do not support his contention that he had a medical condition that would have warranted entry into the PDES.

4.  There is no evidence in the applicant's records and the applicant did not submit any evidence that shows his injury led to a physical profile or limited duty, or that his injury would have warranted his referral to the physical disability evaluation system.  Therefore, he was not considered by an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or have been separated/retired for physical disability.

5.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with his or her rank, grade, or specialty and assign an appropriate disability rating before he or she can be medically retired or separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  In this case the applicant was honorably released from active duty in March 2007 for completion of his service.  He remained a member of the SCARNG until his retirement in December 2008.  He provides insufficient evidence to show that he could not perform his duties after October 2007.

6.  An award of a VA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA awards ratings because of a medical condition related to service which affects the individual's civilian employability.

7.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.


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)                                         AR20090002377



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ABCMR Record of Proceedings (cont)                                         AR20090002377



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