IN THE CASE OF:	 

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090014470 


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 records to show he was medically retired instead of honorably separated. 

2.  The applicant states that he was injured in Panama and that if it were not for that injury, he would have reenlisted.  He adds that he was counseled prior to his discharge and was told that the Veterans Administration (VA) would take care of him.  However, it took 15 years before he was awarded a 100 percent service-connected disability rating by the VA. 

3.  The applicant provides a copy of the Department of Veterans Affairs (DVA) rating decision, dated 30 June 2008, in support of his 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 he enlisted in the Regular Army (RA) for a period of 3 years on 26 January 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty 52C (Utilities Equipment Repairer).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4. 

3.  The applicant’s records also show he served in Panama from on or about 25 October 1983 to on or about 22 January 1985. 

4.  The applicant's records also show he was honorably released from active duty on 25 January 1985 by reason of completion of his required term of service.  This form also shows he received a reenlistment (RE) code of "1" indicating he was fully eligible to reenlist.

5.  The applicant’s medical records are neither available for review with this case nor were they provided by the applicant. 

6.  There is no indication in the applicant's service records that he was issued a permanent physical profile that restricted his duties and/or assignments or warranted his referral to the Physical Disability Evaluation System (PDES).  Additionally, there is no indication that he underwent a medical evaluation board (MEBD) or physical evaluation board (PEB).

7.  The applicant submitted a copy of his DVA rating decision, dated 30 June 2008, that shows he was awarded service-connected disability compensation for depression, residual of laceration, and numbness and loss of sensation associated with a laceration. 

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 PEB.

9.  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 VA Schedule for Rating Disabilities.  Army Regulation 635-40, appendix B, modifies those provisions of the rating schedule inapplicable to the military and clarifies rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

10.  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.

11.  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 requests that his honorable discharge should be changed to a medical retirement.

2.  The applicant's medical records are not available for review with this case.  Additionally, there is no evidence in the available records and the applicant did not provide any evidence that shows he was diagnosed with a medical condition that would have warranted his entry into the PDES.  Therefore, he never underwent 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 separated/retired for physical disability.

3.  The purpose of the MEBD is to evaluate the Soldier's medical condition(s) as diagnosed during a medical examination to determine if they do or do not meet the medical retention standards of Army Regulation 40-501, document a Soldier’s medical status and duty limitations, and refer Soldiers to a PEB.  The PEB is established to evaluate all cases of physical disability equitability for the Soldier and the Army.  

4.  The PEB is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  There is no evidence that the applicant was unable to perform his duties.  The Army must find that a Soldier is physically unfit to reasonably perform his duties and assign an appropriate disability rating before the Soldier can be medically retired or separated.  

5.  An award of service-connected disability compensation by another agency does not establish entitlement to disability discharge/retirement or indicates an error by the Army.  Operating under different laws and their 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) and affects the individual's civilian employability.  

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 failed to submit evidence that would satisfy this requirement.  The applicant has not shown error, injustice, or inequity for the relief he requests.  Therefore, he is not entitled to relief.

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)                                         AR20090014470



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ABCMR Record of Proceedings (cont)                                         AR20090014470



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