IN THE CASE OF:
BOARD DATE: 25 March 2010
DOCKET NUMBER: AR20090016522
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, correction of his records to show he was discharged under the provisions of Title 10, U.S. Code, chapter 61.
2. The applicant states he was using marijuana to deal with the pain from his injuries incurred in Iraq in February 2006 when the vehicle he was riding in was hit by an improvised explosive device (IED). He further states that the Army did not refer him for a medical board for which he was qualified.
3. To support his application he provides a Department of Veterans Affairs (VA) rating decision document.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show he enlisted in the Regular Army on 21 May 2003. He was awarded military occupational specialty 11B (infantryman). The highest rank/grade he held during his tenure of service was sergeant/E-5.
2. On 26 April 2007, the applicant was discharged under honorable conditions (general) from active duty for misconduct (drug abuse). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 11 months, and 6 days of active service.
3. The Army Discharge Review Board (ADRB) reviewed the applicant's file and indicated his overall length and quality of service, to include his combat service, mitigated the discrediting entry in his service record. Accordingly, on 9 June 2008, the ADRB upgraded the applicant's discharge from a general discharge to an honorable discharge. However, the ADRB determined that the reason for discharge was both proper and equitable and voted not to change it.
4. The applicant's records contain a Medical Command Form 699-R (Report of Mental Status Evaluation) completed in conjunction with his discharge proceedings. The document shows the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) (i.e., did not have an unfitting diagnosis that would require medical evaluation board).
5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 will be referred to a physical evaluation 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.
6. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.
7. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.
8. Title 38, U.S. Code, 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 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. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. Confusion arises from the fact that different rating systems are used by the Army and the VA. While both use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army. The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment in order to compensate the individual for loss of civilian employability.
DISCUSSION AND CONCLUSIONS:
1. A disability rating is not based solely upon the existence of a physical defect, but rather upon the extent to which the defect hampers the individual performance of duty. The applicant's records indicate he met the retention requirements of chapter 3, Army Regulation 40-501, at the time of his discharge proceedings. As such, there is no evidence he had an unfitting diagnosis that would require an MEBD.
2. The evidence of record confirms the applicant was properly processed for discharge due to misconduct (drug abuse).
3. While the VA found the applicant had medical conditions that were determined to be service connected and subject to compensation, there is no evidence in his available military records and he has not provided any evidence that he had a condition determined to be unfitting for further military service. While the applicant provided his VA rating decision with this request for a change in his discharge to a "chapter 61," this factor alone does not support a change to the reason for his discharge.
4. While both the Army and the VA use the VASRD, not all of the general policy provisions set forth in the VASRD apply to the Army. The VA may rate any service-connected impairment, thus compensating for loss of civilian employment. It may also award 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. It can also evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. However, a disability rating granted by the VA would not call into question the application of the fitness standards assigned by proper military medical authorities. The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career. As a result, there is insufficient evidentiary basis to change the applicant's discharge for misconduct (drug abuse) to a discharge under the provisions of Title 10, U.S. Code, chapter 61.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20090016522
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