IN THE CASE OF:	  

		BOARD DATE:	      17 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007933 


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 her records to show she was medically discharged instead of honorably discharged.

2.  The applicant states that in November 2005, she suffered a head injury that left her with a seizure disorder and that she was awarded a 100-percent service-connected disability by the Department of Veterans Affairs (DVA).

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 December 2005; a copy of a letter, dated 15 May 2008, from the DVA regarding commissary and post exchange benefits; a copy of a memorandum, dated 6 January 2006, subject:  Presumptive Line of Duty Investigation; a copy of her DA Form 2173 (Statement of Medical Examination and Duty Status), dated 5 January 2006; a statement, dated 10 February 2006, from a Veterans Service Center Manager in support of her DVA rating decision; and a memorandum, dated 15 April 2009, from the Massachusetts Army National Guard (MAARNG) in support of her request.

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 records show she enlisted in the MAARNG on 22 August 2003.  She subsequently entered active duty for training (ADT) on 24 September 2003, completed basic combat and advanced individual training, and was awarded military occupational specialty 42A (Human Resources Specialist).  She was honorably released from ADT to the control of her Army National Guard unit on 6 March 2004.

3.  On 23 October 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  She subsequently served in Iraq from 19 December 2004 to 25 November 2005.

4.  On 18 November 2005, while removing items from a storage compartment on a bus in Iraq, a kevlar helmet fell on her head causing her to lose consciousness. She experienced a seizure and headache.  Her diagnosis was that of a head concussion and her injury was determined to be in the line of duty.

5.  The applicant’s records further show she was medically evacuated through Landstuhl Army Medical Center, Germany, to Guthrie Ambulatory Health Clinic, Fort Drum, NY, for medical care and/or examination.  As there was no further or subsequent seizure activity, she was not issued a physical profile.  She was determined to be fit for duty and was cleared by medical officials for release from active duty (REFRAD).

6.  The applicant’s records further show she was honorably released from active duty to the control of her Army National Guard unit on 26 December 2005 for completion of required active service.  The DD Form 214 she was issued shows she completed 1 year, 2 months, and 4 days of creditable active service during this period of active duty.

7.  On 27 December 2005, the applicant was also discharged from the MAARNG by reason of enlistment/reenlistment in any other component of the Armed Forces.

8.  There is no indication in the applicant's records that she underwent a medical evaluation with subsequent referral to a medical evaluation board (MEBD) or referral to a physical evaluation board (PEB).
9.  The applicant submitted a copy of her DVA rating decision which shows she was awarded a 100-percent service-connected disability compensation and/or rating.

10.  The applicant submitted a copy of a letter, dated 10 February 2006, from a Veterans Service Center Manager in support of her DVA compensation.  The manager chronicles the applicant’s entry on active duty, service in Iraq injury, and subsequent evacuation.  He also states that upon her discharge, the applicant experienced episodes of unexplained loss of consciousness and a subsequent electroencephalogram suggested the existence of epilepsy and/or a seizure disorder, and further recommended the applicant be rated at 100-percent disabled by the DVA.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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).

12.  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 Administration 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.

13.  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.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit 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 her records should be corrected to shows she was medically discharged.

2.  The evidence of record shows the applicant suffered a non-hostile, in-the-line-of-duty head injury in Iraq and was subsequently medically evacuated to the United States.  Upon further evaluation and/or treatment, medical officials determined that she was fit for duty and was cleared for REFRAD.  Accordingly, she was honorably released from active duty for completion of her active service on 26 December 2005.

3.  There is no evidence in the applicant’s records and the applicant did not provide substantiating evidence that shows her concussion was determined not to have met the medical retention standards of Army Regulation 40-501.  Accordingly, an MEBD never convened to document her medical status, duty limitations, and possible referral to a PEB.  Without an MEBD, there would have been no basis for referring her 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 she should have been medically discharged for her medical condition because the DVA granted her 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) which affects the individual's civilian employability.

5.  The 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 his or her 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 PDES.

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 she 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.



      ____________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)                                         AR20090007933



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ABCMR Record of Proceedings (cont)                                         AR20090007933



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