IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090013372 


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 the narrative reason for separation listed on his 15 April 2005 DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to show that he was released due to a disability.

2.  The applicant states that he was discharged because of his back and he is receiving disability from the Department of Veterans Affairs (VA).  He adds that his VA education benefits are reduced to 40 percent based on the narrative reason for separation shown on his DD Form 214 "physical condition, not a disability."  The applicant states that if his reason for separation was changed to "due to a service related disability," he would be eligible for full education benefits without a reduction.

3.  The applicant provides a copy of his DD Form 214 and VA documents.

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 available evidence show the applicant enlisted in the Regular Army on    2 March 2004.  

3.  The applicant’s separation packet is not available.  On 15 April 2005, he was honorably released under the provisions of paragraph 5-18, Army Regulation 635-200 (Enlisted Personnel).  He had completed 1 year, 1 month, and 14 days of active military service.  Item 28 (Narrative Reason for Separation) contains the entry "Physical Condition, Not a Disability."  

4.  VA documents show that on 18 November 2005, the applicant received a disability rating of 10 percent for service connected lumbar degenerative joint disease.  These documents also show that he was entitled to 40 percent of education benefits payable for education under the Post-9/11 GI Bill.  Additionally, VA eligibility guidelines show that if the applicant served at least 30 continuous days on active duty and he was discharged due to a service-connected disability he would be entitled to receive 100 percent of the benefits payable for education.  

5.  The applicant provided no medical records and there are no medical records available for the Board to review. 

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-18 sets the policy and prescribes procedures for separating members on the basis of other physical or mental conditions not amounting to a disability that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to, chronic airsickness or seasickness, sleepwalking, claustrophobia, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.

7.  The above regulation further states, in pertinent part, that when a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40–501.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  


8.  Additionally, this regulation states that separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies.  

9.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, 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.  One of the criteria is that 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.

10.  Title 38, U.S. Code, sections 1110 and 1131, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was discharged because of his back.  However, there is no evidence and the applicant has not provided any that indicates he had a medically unfitting disability that was incurred or aggravated while he was entitled to basic pay which required physical disability processing at the time of separation. 

2.  Additionally, the fact that the applicant was awarded a 10 percent disability rating by the VA for degenerative joint disease and he is subsequently entitled to 40 percent of payable education benefits is not sufficient justification to change the reason for separation on his DD Form 214.  The VA is not required by law to determine medical unfitness for further military service.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

3.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement

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)                                         AR20090013372



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013372



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1