IN THE CASE OF:	

		BOARD DATE:	       29 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090005342 


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 DD Form 214 (Certificate of Release or Discharge) be changed to show that he was retired due to medical conditions.

2.  The applicant states that he completed 16 years of active duty service and received a 30 percent disability rating for service connected injuries.

3.  The applicant provides the following documents in support of this application:
a copy of his DD Form 214, thirteen letters that he previously submitted to the Qualitative Management Program (QMP) Board recommending that he be retained on active duty, copies of his medical reports from numerous military treatment facilities, and a copy of his Department of Veterans Affairs (VA) Rating Decision, dated 31 January 2000.

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's record shows that he enlisted in the Regular Army on 
15 September 1982.

3.  The applicant submitted 45 pages of his medical records from several military hospitals, dated between 15 July 1983 and 5 May 1999, which show that he suffered from chronic left knee pain, posterior knee pain, torn cruciate ligaments, and degenerative joint disease (DJD).

4.  The applicant's record contains a Letter of Reprimand that was issued by Headquarters, US Army Recruiting Command, Fort Knox, Kentucky, dated 9 May 1997, that shows the applicant was driving while drunk on 1 November 1996.  The reprimand was directed for filing in his Official Military Personnel File (OMPF).

5.  The applicant's record does not contain a copy of the memorandum informing him that he had been selected for discharge under the QMP.

6.  The available record contains a memorandum from the U.S. Enlisted Records and Evaluation Center (USAEREC) , dated 31 March 1999, that denied the applicant's appeal to his Department of the Army bar to reenlistment and ordered him to be separated no later than 31 July 1999 under the provisions of paragraph 16-8, Army Regulation 635-200 (Personnel Separations).

7.  On 7 December 1998, the applicant underwent a military occupational specialty (MOS) medical review board (MMRB) which determined that he was able to perform proficiently in his primary MOS (PMOS) of 79R3O (Guidance Counselor), and recommended that he be retained in his PMOS.  Part IIIe (Principal Duty Title) of the applicant's Noncommissioned Officer Evaluation Report for the period November 1998 to June 1999 shows the applicant was performing duties in his PMOS.  Part IVc (Physical Fitness and Military Bearing) shows he was successfully performing his duties and "drove on" with a painful knee condition.

8.  On 31 July 1999, the applicant was honorably discharged from active duty in accordance with the provisions of Army Regulation 635-200, paragraph 16-8, due to reduction in force (RIF).  His DD Form 214 shows that he completed 16 years, 10 months, and 16 days of creditable active duty service.

9.  The applicant submitted a copy of his VA Rating Decision, dated 31 January 2000, which shows he received a 20-percent service-connected disability rating for chronic left knee pain with DJD, a 10 percent service-connected disability rating for chronic right knee pain with DJD, and a 0-percent service-connected disability rating for a left testicular mass. He was denied a service-connected disability rating for hearing loss.

10.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of this regulation sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints.  Soldiers separated under this paragraph will be characterized as honorable.

11.  Army Regulation 601-280 (Army Retention Program) paragraph 10-5 governs screening procedures and states, in pertinent part, that appropriate Department of the Army Selection Boards will review the performance portion of the OMPF, the DA Form 2A (Personnel Qualification Record Part-I) and DA Form 2-1 (Personnel Qualification Record Part-II), and other authorized documents.  From these documents, the board will evaluate past performance and estimate the potential of each service member to determine if continued service is warranted.

12.  Army Regulation 601-280, paragraph 10-8 provides that a Soldier may appeal the bar to reenlistment imposed under the QMP based on improved performance and/or material error in the Soldier’s record when reviewed by the selection board.  The appeal must be submitted within 45 days of completion of the Statement of Option and will include substantive comments on the Soldier’s performance and potential by each member of the chain of command.  Paragraph 10-10 provides that the appeal is considered by the QMP Appeals Board normally conducted in conjunction with Centralized Enlisted Selection Boards.  The QMP Appeals Board will consider the Soldier’s potential for future service and promotion; review the Soldier’s complete record “de novo”; and notify the Soldier’s commander (lieutenant colonel or above) of the results of the appeal.

13.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation 
40-501(Standards of Medical Fitness), as amended, provides the standards for medical fitness for retention and separation, including retirement and states, in pertinent part, that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

14.  Title 38, U.S. Code, 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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for correction of a military record.  Paragraph 2-9 (Burden of Proof) states that the ABCMR begins its consideration of each case with presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant received a letter of reprimand for driving while drunk in 1996.  The available evidence also shows the applicant was successfully performing the duties of his PMOS of 79R3O in spite of his knee problems.  There is no evidence which shows the applicant was not medically qualified to perform his assigned duties or that he failed to the meet medical retention criteria.  Further, there is no evidence to show that his QMP was the result of any medical conditions or physical defect.  He may have required some activity limitations but he was not medically unfit for retention.

2.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency’s examinations and findings.

3.  The fact that the VA awarded the applicant a combined disability rating of 
30 percent is a prerogative exercised within the policies of that agency.  The VA does not determine medical unfitness for service, but only that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Therefore, a rating awarded by the VA after the applicant was discharged does not, in and of itself, establish physical unfitness for Department of the Army purposes.

4.  The Department of the Army Selection Board reviewed the performance portion of the applicant’s OMPF and other authorized documents to evaluate his past performance and to estimate his potential for continued service.  The applicant was properly notified of his DA bar to reenlistment and afforded the opportunity to appeal.  Evidence shows that he elected to appeal the DA bar and it was denied and he was ordered to be separated in accordance with Army Regulation 
635-200, paragraph 16-8.  

5.  Based on the foregoing, there is insufficient evidence to grant the relief requested.

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)                                         AR20090005342



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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