IN THE CASE OF:	  

		BOARD DATE:	        25 JUNE 2009

		DOCKET NUMBER:  AR20090003933 


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, that his release from active duty (REFRAD) on 5 September 2005 be voided and that he be retired by reason of physical disability. 

2.  The applicant states, in effect, that he believes that he was unjustly REFRAD without being given a medical retention board which would have retired him from active duty. 

3.  The applicant provides a page from a Veteran's Guide to Benefits; a copy of a letter written by the Chief of Staff, Headquarters, First United States Army to the applicant’s Congressional Representative; copies of medical documents related to an Magnetic Resonance Imaging (MRI) of the spine; copies of his Physical Profiles; copies of appointment letters for procedures conducted at the Department of Veterans Affairs (VA); a copy of his appeal to the VA; and a copy of his application for increased compensation with the VA.

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 was serving in the Indiana Army National Guard (INARNG) on 22 October 2003 when he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

3.  The applicant was promoted to the pay grade of E-6 on 1 February 2004 and on 4 June 2004, he was ordered to active duty in support of Operation Enduring Freedom.  He deployed to Afghanistan as a health care specialist from 20 July 2004 to 26 January 2005.

4.  On 1 February 2005, he was voluntarily assigned to Fort Knox, Kentucky to participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.  

5.  On 5 September 2005, he was honorably REFRAD due to completion of required service.  He had served 1 year, 3 months and 2 days of active service during his mobilization period.

6.  On 8 September 2005, in response to a Congressional inquiry on behalf of the applicant, the Chief of Staff, Headquarters, First United States Army informed the member of congress, in effect, that the applicant's medical condition at the time he was on active duty did not warrant disposition through medical channels.  Medical officials at the time noted the applicant's complaints of disability were not supported by any objective findings and that he was expected to recover fully.  The chief of staff also opined that if the applicant's commander decided to initiate military occupational specialty medical review board (MMRB) proceedings after he had completed a 1-year trial period and was unable to perform his duties he could do so.

7.  On 31 January 2006, the applicant was honorably discharged from the INARNG and was transferred to the United States Army Reserve Control Group (Retired).

8.  Army Regulation 635-40 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.  It states commanders of medical treatment facilities (MTFs) who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.

9.  Army Regulation 635-40 states that MEBs 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 qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.  

10.  There is a difference between the VA and the Army disability systems.  While both the VA and the Army use the VA Schedule for Rating Disabilities (VASRD) to determine percentage ratings, not all of the general policies set forth in the VASRD apply to the Army; thus there are sometimes differences in ratings. The Army's determination of a Soldier's fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his grade, rank, or rating. If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the physical evaluation board hearing.  The VA may find a Soldier unfit by reason of service connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending upon the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability. 
Accordingly, he was properly discharged under the provisions of Army Regulation 635-200, chapter 4, due to completion of required service after being processed through the medical retention center at Fort Knox.

2.  Although the applicant's medical records are not present in the available records, there are sufficient records to establish that the applicant was assigned to the Medical Retention Processing Program for completion of medical care and treatment.  Therefore, it is reasonable to presume given the efforts by medical personnel to retain him past his scheduled separation date for recovery and evaluation, that the applicant was found to be fit for separation.

3.  The medical documents cited by officials at Headquarters, First United States Army further confirm that medical officials deemed him fit for retention with full recovery expected and cleared him for separation.

4.  Therefore, in the absence of sufficient evidence to show that he was not properly diagnosed or that he was not fit for retention, there appears to be no basis to second-guess the medical officials who diagnosed the applicant at the time and determined that his condition did not warrant separation through the Physical Disability Evaluation System.

5.  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 has failed to submit evidence that would satisfy this requirement.  

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)                                         AR20090003933



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ABCMR Record of Proceedings (cont)                                         AR20090003933



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