BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090017223 


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 his record be corrected to show he was discharged or retired by reason of disability.  

2.  The applicant states he was discharged but not medically reviewed.  He indicates he was probably not fit for duty due to medical reasons.  He states he was wounded in Iraq and presently has a 30 percent (%) disability rating from the Department of Veterans Affairs (VA).  

3.  The applicant provides no documentary evidence in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that, after serving in the Delaware Army National Guard (DEARNG) from 11 November 1973 through 13 January 1977, he initially enlisted in the United States Army Reserve (USAR) for 6 years on 
14 January 1977.  The applicant last reenlisted in the USAR for 8 years on 9 July 1999.  

2.  On 24 September 2004, while serving as a member of the USAR in the rank of sergeant first class (SFC), the applicant was ordered to active duty in support of Operation Iraqi Freedom for a period not to exceed 545 days.  


3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 21 December 2005, shows the applicant suffered injuries to his left arm and right knee as a result of an improvised explosive device (IED) explosion in November 2005 in Iraq.  The form indicated the injuries were determined to be in the line of duty and were not likely to result in a claim against the Government for future medical care.  

4.  On 18 January 2006, the applicant was honorably released from active duty (REFRAD), by reason of completion of required active service, and returned to the USAR.  The DD Form 214 he was issued at the time shows he completed 
1 year, 3 months, and 25 days of active duty service during the period.  

5.  The applicant's Official Military Personnel File (OMPF) is void of any documents or medical treatment records that show the applicant suffered from a disqualifying physical or mental condition that would have supported his separation processing through medical channels at the time of his REFRAD.  

6.  On 12 June 2007, while serving in the 458th Engineer Battalion, New Kensington, Pennsylvania, a USAR Troop Program Unit (TPU), the applicant extended his 9 July 1999 enlistment for 7 months, establishing his expiration of term of service (ETS) as 8 February 2008.  

7.  On 11 September 2007, the applicant was reassigned from one TPU
(458th Engineer Company) to another TPU (340th Engineer Company) within the command (99th Regional Readiness Command (RRC)).

8.  The applicant's record shows his ETS expired on 8 February 2008.  His record is void of discharge orders but contains a contact note from a
Human Resources Command, St. Louis, Missouri (HRC-St. Louis) official, dated 2 September 2009, which confirms the applicant was informed he had been discharged based on his ETS.  

9.  The record is void of any indication the applicant was determined to be medically unfit for further service or denied reenlistment in the USAR prior to his  ETS on 8 February 2008. 

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system (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.


11.  Chapter 3 of the same regulation contains guidance on standards of unfitness because of physical disability and states the following in the paragraphs indicted:

	a.  Paragraph 3-1 - 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;

	b.  Paragraph 3-2b(1) - 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; and

	c.  Paragraph 3-2b(2) - When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

12.  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.  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's contention he was not fit for duty based on wounds received in Iraq and was not medically reviewed prior to discharge from the USAR has been carefully considered.  However, the evidence is not sufficient to support this claim. 

2.  By regulation, the mere presence of impairment does not, in and 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 due to his office, grade, rank, or rating.
3.  The evidence of record shows the applicant was honorably REFRAD at the completion of his required active service on 18 January 2006.  While there are no medical treatment records or physical examination reports in his record, it is presumed he was medically screened prior to his REFRAD and return to the USAR.  

4.  Further, a DA Form 2173 in his record shows the wounds the applicant received in Iraq in the line of duty were not likely to result in a future claim against the Government for medical care.  This coupled with the fact he later extended his enlistment and served in TPUs of the USAR establish a presumption of fitness and show whatever conditions he may have suffered from did not prevent him from reasonably performing the duties of his office, grade, rank, or rating.

5.  By law, treatment and compensation for service connected medical conditions that did not disqualify a member from further service at the time of discharge is the responsibility of the VA.  The applicant is advised he should pursue any claims he has for service connected medical conditions that did not disqualify him from service through the VA. 

6.  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)                                         AR20090017223



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ABCMR Record of Proceedings (cont)                                         AR20090017223



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