IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090010798


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 military records to show that he was separated from active duty due to a physical disability.

2.  The applicant states that in January 2008 he was in a serious motorcycle accident.  As a result, he was separated from active duty because of minor infractions.  The Department of Veterans Affairs (VA) evaluated his medical condition and rated him as 40 percent disabled.   He contends that the Army should have afforded him a medical discharge. 

3.  The applicant provides, in support of his application, copies of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) and his VA rating decision. 

CONSIDERATION OF EVIDENCE:

1.  On 6 July 2006, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).

2.  On 5 October 2006, the applicant was assigned to the 325th Combat Support Battalion, located at Schofield Barracks, Hawaii.  He served with this unit in Iraq from 4 December 2006 to 5 October 2007.  


3.  On 12 January 2007, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful use of marijuana during the period from 20 September to 20 October 2006.  The punishment included reduction to pay grade E-1, a forfeiture of $650.00 pay per month for 2 months, and 45 days extra duty.  The applicant did not appeal the punishment.

4.  On 14 April 2008, the applicant underwent a medical examination.  The medical doctor did not record any medical defects and found the applicant qualified for separation.   He was given a physical profile of 1-1-1-1-1-1.

5.  On 15 April 2008, the applicant underwent a mental status evaluation.  His behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory was good.  The applicant was diagnosed with an adjustment disorder.  The applicant was mentally responsible and met retention requirements.  He did not meet the requirements for a psychiatric medical evaluation board.  He was able to distinguish right from wrong and was capable of participating in the separation processing.  

6.  On 7 May 2008, the applicant accepted NJP for wrongfully operating a motorcycle without proper safety equipment on or about 19 January 2008; for willful disobedience of a lawful command from a commissioned officer; and for operating a motorcycle while drunk.  The punishment included reduction to grade E1, a forfeiture of $200.00 pay per month for 2 months (suspended), 45 days extra duty and 30 days restriction.  The applicant did not appeal the punishment.

7.  On 9 May 2008, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The commander cited the applicant's wrongful use of marijuana; wrongful operation of a motorcycle without proper safety equipment on or about 19 January 2008; failing to obey a commissioned officer's command to not operate his motorcycle on or about 2 April 2008; and his operating a motorcycle while drunk on or about 3 May 2008.  The commander recommended that he receive a general, under honorable conditions discharge.  

8.  On 2 July 2008, the appropriate authority approved the recommendation.  Accordingly, the applicant was discharged under honorable conditions.  He had completed 2 years, 1 month and 14 days of creditable active service. 




9.  On 12 May 2009, the VA granted the applicant a combined rating of 
40 percent service connection, effective 20 August 2008, for the following disabilities:

	a.  post traumatic stress disorder - 30 percent;

	b.  status post craniotomy with residual headaches - 10 percent;

	c.  scar, status post craniotomy - 10 percent;

	d.  status post right clavicle fracture - zero percent; and

	e.  erectile dysfunction - zero percent.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that no enlisted member may be referred for physical disability processing when action has been or will be taken to separate him or her for unfitness, except when the officer exercising general court-martial jurisdiction determines that the disability was the cause or substantial contributing cause of the misconduct, or that circumstances warrant physical disability processing in lieu of administrative processing.  A copy of the signed decision of the general court-martial authority directing physical disability processing will be included with the records.

11.  Army Regulation 635-40 also states that under the laws governing the Army Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect.

12.  Army Regulation 40-501, chapter 3, as amended, provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been discharged based on his physical disability, as rated by the VA.

2.  The evidence of record shows that the applicant was administratively separated due to a pattern of misconduct.   At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for separation with a physical profile of 1-1-1-1-1-1.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

4.  There is no evidence to show any injuries the applicant received during a motorcycle accident in January 2008 rendered him unfit to perform his duties.  In addition, if the motorcycle accident the applicant refers to is the one referenced in his Article 15, it appears that accident would have rendered him ineligible for processing through the PDES as the injuries may have been a result of his willful neglect (i.e., wrongful operation of a motorcycle without proper safety equipment).

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 the aforementioned requirement.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20090014257



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ABCMR Record of Proceedings (cont)                                         AR20090010798



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