IN THE CASE OF:	

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20090013887 


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 that his discharge from the U.S. Army Reserve (USAR) be changed to permanent disability retired.

2.  The applicant states the Army Human Resources Command, St. Louis, MO (HRC-STL) was unable to correctly diagnose his service-connected injuries/illnesses which should have led to a separation from the service and placement in a permanent disability retired status.  He states he has been rated by the Department of Veterans Affairs (VA) "at 60 percent disabled with 
50 percent compensation for service-connected disabilities" with effective dates prior to the medical records review by HRC-STL.

3.  The applicant provides, in support of his application, copies of his letter to HRC-STL, dated 11 August 2004; his VA award letter, dated 15 November 1991; and three award letters, dated 1 June 2004, 7 April 2008, and 8 September 2008 with VA Rating Decisions.

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.  On 17 May 1989, the applicant was commissioned a second lieutenant in the Tennessee Army National Guard (TNARNG).  He had 1 year, 8 months, and 
28 days of previous service in the Army National Guard in an enlisted status.  He was promoted to captain effective 20 June 1997.

3.  On 30 October 1999, the applicant resigned from the TNARNG and was transferred to the USAR Control Group (Reinforcement).

4.  On 7 August 2003, the applicant was notified he was not selected for promotion to major by the Department of the Army (DA) Reserve Components Mandatory Selection Board that was convened on 3 March 2003.

5.  On 1 July 2004, the applicant was notified he was not selected for promotion to major by the DA Reserve Components Mandatory Selection Board that was convened on 2 March 2004.  He was advised that as a result of this second non-selection he must be discharged and that his established removal date was not later than 1 January 2005, unless he was eligible for and requested a transfer to the Retired Reserve.

6.  A Soldier Management System (SMS) entry, dated 24 August 2004, in iPERMS (integrated Personnel Electronic Records Management System) indicates the applicant's DA Form 7349 (Initial Medical Review - Annual Medical Certificate); Physical Examination; and other medical records were reviewed by the HRC-STL Command Surgeon and the applicant was found medically qualified for military service.

7.  There is no evidence the applicant was assigned to a troop program unit or that he performed any active duty from 1 November 1999 to the date of his discharge on 1 January 2005.

8.  On 1 January 2005, the applicant was discharged from the USAR.

9.  The applicant's letter, dated 11 August 2004, to HRC-STL forwarded his DA Form 7349, February Physical Examination, and service medical records to the HRC-STL Command Surgeon for review.

10.  The applicant's VA award letter, dated 15 November 1991, awarded him service connection for traumatic arthritis and a 10 percent disability rating, effective 1 April 1994.

11.  The applicant's VA award letter, dated 1 June 2004, increased his disability rating for mechanical low back pain with arthritis from 10 percent to 20 percent disabling, effective 15 December 2003.

12.  The applicant's VA award letter, dated 7 April 2008, granted him service-connection for major depression with anxiety and assigned a disability rating of 30 percent, effective 21 June 2004.

13.  The applicant's VA award letter, dated 8 September 2008, granted him service-connection for left hip radiculopathy, effective 3 February 2000, and assigned him a disability rating of 10 percent, effective 11 July 2008.

14.  Paragraph 4-30 of Army Regulation 135-155 (Army National Guard and U.S. Army Reserve, Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), then in effect, stated that an officer who twice failed to be selected for promotion to captain, major, or lieutenant colonel would not again be considered for promotion and would be removed from an active status within 
90 days after the selection board submits its results to Headquarters Department of the Army.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Separation, and Retirement) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards based on the criteria in Army Regulation 40-501 will be referred to a physical evaluaton board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

16.  Title 38, U.S. Code, 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.  The VA 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 he should have been permanently retired due to physical disability.  He contends that the service-connected disabilities were rated by the VA with effective dates prior to the medical review by the HRC-STL Command Surgeon.

2.  The applicant was discharged from the USAR based on being non-selected for promotion to major (twice).  There is no evidence the applicant was not medically qualified to perform duty or that he failed to meet retention criteria.  In fact, on 24 August 2004, the HRC-STL Command Surgeon found, upon review of his medical records, that he was medically qualified for military service.  There is no evidence the applicant was referred to an MEBD.  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 retired for physical unfitness.

3.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  Accordingly, it is not unusual for the VA to award a veteran a disability rating when the veteran was not separated due to physical unfitness.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.  Therefore, a rating awarded by the VA does not, in of itself, establish physical unfitness for Department of the Army purposes.

4.  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 this 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)                                         AR20090013887



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ABCMR Record of Proceedings (cont)                                         AR20090013887



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