BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090006557 


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 a medical retirement.

2.  The applicant states, in effect, that he was put out of the U.S. Army Reserve (USAR) with a 20 year letter.  He contends that in January 2003 he was activated for duty and deployed in support of Operation Iraqi Freedom, that he was deployed for 15 months, and that most of that time he was in Iraq.  He indicates that he injured his right elbow while in Iraq, that they had no medical support or treatment facilities available at that time, and that he treated his injury the best he could and continued leading Soldiers in a hostile environment.  He also contends that while in Iraq he began to experience significant pain in his left ankle (the same ankle he injured in 1985 while in jump school) and that in September 2003 he sought medical treatment.  He was diagnosed with degenerative joint disease due to several ankle sprains with increased pain while in a combat zone.  He received a temporary profile "2" for his ankle while in Iraq.   

3.  The applicant states that on 12 May 2005 he was scheduled for a routine (over 40) physical and also an evaluation for the temporary profile that he received while serving in Iraq.  His temporary profile was changed to a permanent profile and a second permanent profile was added to his medical records.  On 8 June 2005 he was involuntarily placed in a medical holding unit and his promotion packet was pulled from consideration due to the medical evaluation that declared him no longer fit for active duty.  He indicates that he was never given a disability rating or the opportunity to talk with a counselor about his options for a disability retirement.  He was told that he was no longer fit for active duty and that he must retire.
4.  The applicant further states that on 15 March 2006 he applied for medical disability with the Department of Veterans Affairs (DVA) and was given eight individual service connected disability ratings of 10 percent, one rating of 
30 percent, and two ratings of 0 percent for a total rating of 70 percent.  He points out that six of the nine service connected disabilities are Gulf War/Operation Iraqi Freedom incurred, that he is currently applying for increased disability on four of the already awarded claims, and that he is also filing for one new disability due to increased pain, discomfort, and severity of service connected injuries.  He believes his retirement should have been a medical retirement not a regular retirement.     

5.  The applicant provides eleven enclosures outlined on page 3 of his statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Having prior inactive service in the USAR and active service in the Regular Army, the applicant enlisted in the Army National Guard in January 1996.  On an unknown date in 2003, he was ordered to active duty in support of Operation Iraqi Freedom.  

2.  The applicant provided medical documentation which shows he was issued a temporary profile "2" for his left ankle on 3 September 2003 in Iraq.

3.  On an unknown date, the applicant was released from active duty.

4.  The applicant provided a medical record, dated 17 May 2005, which shows the Physical Review Board at the Human Resources Command, St. Louis, Missouri found that he did not meet medical retention standards with a physical profile of 133121.  The action directed by the Physical Review Board was to refer the applicant's case to the "NDR-PEB" [Non-Duty Related - Physical Evaluation Board].  These proceedings are not in the available records.    

5.  Part IVc (Physical Fitness and Military Bearing) on the applicant's Noncommissioned Officer Evaluation Report (NCOER) for the period March 2005 through February 2006 (which shows his primary military occupational specialty was 25U (Signal Support Systems Specialist)) shows his rater rated him "Success (Meets Standard)."  It also shows he passed the Army Physical Fitness Test in October 2005.  His rater rated him "Among the Best" in his overall 


potential for promotion and/or service in positions of greater responsibilities.  His rater rated his overall performance as successful and rated his overall potential for promotion and/or service in positions of greater responsibility as superior.     

6.  On 22 December 2005, the applicant received his 20 year letter.

7.  On 18 February 2006, the applicant was released from the USAR and assigned to the Retired Reserve based on completion of 20 or more years of qualifying service for retired pay at age 60.   

8.  In support of his claim, the applicant provided a DVA Rating Decision, dated 18 December 2006, which shows he was granted service connection for degenerative joint disease, left ankle, with history of multiple sprains 
(10 percent); degenerative joint disease, right ankle, with history of sprains 
(10 percent); degenerative joint disease, right knee (10 percent); collateral and cruciate ligament laxity, right knee (10 percent); chondromalacia patella, left knee, with scar status post lipectomy without residual (10 percent); right hand trauma with residual degenerative changes and numbness in the right index finger  (10 percent); right wrist ganglion cyst (dominant) (10 percent); left hand thumb trauma with residual degenerative changes and numbess of loss of fat pad at tip of the left thumb (0 percent); right shoulder tendinopathy (10 percent); left great toe degenerative joint disease, status post fracture with surgical treatment (0 percent); and anxiety disorder, not otherwise specified (30 percent).     

9.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

10.   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.

11.  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, in and of itself, justify a finding of unfitness because of physical disability.

12.  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.  Notwithstanding the 17 May 2005 action by the Physical Review Board to refer the applicant's case to the NDR-PEB, and for which there are no further details, the applicant's final NCOER for the period March 2005 through February 2006 shows his rater rated him "Success (Meets standard)" in physical fitness and military bearing and his senior rater rated his overall performance as successful which shows he was able to perform his military duties.  Therefore, it appears his raters believed he was fully capable of performing his duties well after that May 2005 action.  There is insufficient evidence to show the applicant was unable to perform his duties, insufficient evidence to show he was eligible for physical disability processing, and there insufficient evidence to show there is a basis for a medical retirement.   
  
2.  The rating action by the DVA does not necessarily 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 

________  ________  ________  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)                                         AR20090006557



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ABCMR Record of Proceedings (cont)                                         AR20090006557



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