IN THE CASE OF:	  

		BOARD DATE:	        9 September 2009

		DOCKET NUMBER:  AR20090006307 


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 retired or separated for disability with entitlement to severance pay instead of honorably discharged.

2.  The applicant states that he was awarded service-connected disability from the Department of Veterans Affairs (DVA) effective 1 October 2007.  He adds that the Texas Army National Guard (TXARNG) would not conduct a physical evaluation board on his behalf and told him that he was being discharged because of his non-selection for retention by the Qualitative Retention Board (QRP) Proceedings.  He further adds that he received $52618.38 in separation pay with 28 percent being withheld for taxes and the DVA is recouping the difference.  He concludes that the TXARNG should have conducted a PEB on his behalf and he should have been separated or retired by reason of medical disability.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from active Duty), dated 30 September 2007, and a copy of the DVA rating decision, dated 3 December 2007, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Air Force, the applicant’s records show he enlisted in the Indiana Army National Guard (INARNG) on 8 December 1982. He held military occupational specialty (MOS) 76V (Equipment Records and Parts Specialist).  He also executed several extensions in the ARNG and was transferred to the TXARNG. 

2.  The applicant's records also show he entered active duty on 5 January 2000 under the Active Guard Reserve (AGR) program, held MOS 92Y (Supply Specialist) and 75B/42A (Human Resources Specialist), and attained the rank/grade of sergeant first class (SFC)/E-7.  He was assigned to the 249th Support Battalion (Main), TXARNG, Austin, TX. 

3.  On 11 December 2001, the Adjutant General’s Department, TXARNG, 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.  

4.  There is no indication in the applicant's records that he suffered any illness/injury, that a line of duty determination was made by the applicant's commander; that the applicant was issued a permanent physical profile; or that he underwent a medical evaluation with subsequent referral to a medical evaluation board (MEBD). 

5.  The applicant's Noncommissioned Officer Evaluation Report (NCOER) for the below periods show he was rated as follows:

	a.  From 1 May 2006 through 31 December 2006, he received a "success" rating in the competence, physical fitness, and leadership areas of the NCO Responsibilities and a “need improvement” in the training and responsibility/
accountability areas; 

	b.  From December 2004 through April 2005, he received a "success" and/or "excellence" in all areas of NCO responsibilities; 

	c.  From October 2003 through November 2004, he received "success" and/or "excellence" in all areas of NCO responsibilities; and

	d.  From November 2002 through October 2003, he received "success" in all areas of NCO responsibilities.

6.  He was involuntarily separated from the AGR program as a result of non-selection by the Enlisted QRB and was honorably released from active duty to the control of his ARNG unit on 30 September 2007.


7.  The applicant submitted a copy of his DVA rating decision which shows he was awarded service-connected disability compensation and/or rating for various medical conditions including obstructive sleep apnea, degenerative arthritis of the cervical spine, degenerative arthritis of the lumbar spine, tinnitus, left and right knee patellofemoral syndrome, bilateral plantar fasciitis, chronic sinusitis, hypertension, and left and right wrists carpal tunnel syndrome.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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 physical evaluation board (PEB).

9.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

11.  Title 38, U.S. Code, sections 1110 and 1131, permits the DVA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher DVA 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 DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA 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 DVA 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 retired or separated for disability with entitlement to severance pay instead of honorably discharged.

2.  The evidence of record shows the applicant served on active duty in an AGR status and was fully capable of performing his duties through December 2006 as shown on his NCOERs.  At some point, his records were reviewed by the Enlisted QRB selection board; however, he was not selected for retention in the AGR program.  Accordingly, he was released from active duty to the control of his ARNG unit.

3.  There is no evidence in the applicant’s records and the applicant did not provide any evidence that shows he had a medical condition(s), illness(e)s, or injury(ies) that was diagnosed during a medical examination and was determined not to have met the medical retention standards of Army Regulation 40-501.  Accordingly, an MEBD never convened to document his medical status and duty limitations, and possible referral to a PEB.  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 separated/retired for physical disability.

4.  The applicant now believes he should have received disability retirement or separation with severance pay for his medical condition because the DVA granted him a service-connected disability.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

5.  The Physical Disability Evaluation System (PDES) provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank, or rating.  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 physical disability evaluation system.  

6.  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)                                         AR20090006307



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ABCMR Record of Proceedings (cont)                                         AR20090006307



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