IN THE CASE OF:	

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090014977 


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 his narrative reason for separation from the Army in 2004 be changed.

2.  The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) currently reflects a separation code that is consistent with a normal, honorable discharge with no medical problem.  However, the applicant notes, in effect, that he is currently receiving disability compensation from the Department of Veterans Affairs (VA) for several service connected medical conditions which were present when he departed Iraq.  He states that while his intention was to make the military a career his disabilities prevented him from doing so.  As such, he is asking that his separation code be changed on his DD Form 214 “to better reflect the truth of the matter.”

3.  The applicant provides a copy of his 2004 DD Form 214 and documents from the VA attesting to his receipt of disability compensation from that agency.

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.  Records available to the Board indicate the applicant was a member of the Mississippi Army National Guard (MSARNG) on 10 February 2003 when he was ordered to active duty in support of Operations Enduring and Iraqi Freedom.  He deployed to Southwest Asia between March 2003 and March 2004.

3.  On 1 May 2004 the applicant was released from active duty with an honorable characterization of service.  Item 26 (Separation Code) on his DD Form 214 reflects “LBK” while Item 28 (Narrative Reason for Separation) is recorded as “Completion of Required Active Service” and item 25 (Separation Authority) reflects “AR 635-200, Chap 4.”

4.  On 17 August 2004, the applicant was honorably discharged from the MSARNG upon completion of his expiration term of service.

5.  Documents provided by the applicant note that as of 3 October 2006 he had been awarded a 100 percent disability rating by the VA for a variety of ailments.  In a September 2008 statement provided by a physician with the Manhattan Surgical Associates indicates the applicant was originally diagnosed with ulcerative colitis in June 2004 and that it was clear his colitis began while on active duty in Iraq.  He noted the applicant complained of gastrointestinal trouble while deployed and sought medical attention immediately upon return to the United States.  The applicant’s VA rating document indicates this condition was independently rated at 60 percent.

6.  Army Regulation 40-501 (Standards of Medical Fitness) provides, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

8.  That above regulation states that commanders may refer members to the servicing medical treatment facility for medical evaluation when it is believed that the member is unable to perform the duties of his office, grade, rank, or rating because of physical disability.  Commanders of medical treatment facilities who are treating patients in an assigned, attached or outpatient status may also initiate action to evaluate a member’s physical ability to perform the duties of his office, grade, rank, or rating.

9.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  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 civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

10.  Army Regulation 635-5-1 (Separation Program Designated Codes) states the Separation Code “LBK” is the appropriate code for enlisted Soldiers who are involuntarily released from active duty at the completion of their required active service under the provisions of Army Regulation 635-200, Chapter 4.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant may very well have suffered from gastrointestinal trouble while on active duty, there is no evidence available, and the applicant has not provided any, that shows the condition rendered him unfit to perform his duties.

2.  The applicant’s unit commander, or any medical professionals involved in the applicant’s medical treatment, could have initiated actions to refer the applicant for disability processing.  The fact that he was never referred for disability processing is evidence that his condition was not sufficiently disabling to warrant such processing.  

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in and of itself, establish physical unfitness for Department of the Army purposes.

4.  The applicant's separation code is based on the reason and authority for separation.  In the applicant’s case there is no basis to change the narrative reason for separation, or the authority for his 2004 discharge; his separation code is also correct.

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 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)                                         AR20090014977



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ABCMR Record of Proceedings (cont)                                         AR20090014977



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