IN THE CASE OF:	

		BOARD DATE:	  08 June 2010

		DOCKET NUMBER:  AR20090018784 


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, his honorable discharge, dated 18 June 2005, be changed to a medical discharge.

2.  The applicant states:

* he needs his DD Form 214 for the period ending 18 June 2005 to reflect a medical injury sustained while on active duty which caused him to be released from the service
* this conclusion was determined by a medical review board hearing
* in January 2007 he was diagnosed with chronic right shoulder pain preventing performance of required military duties, medically not acceptable
* his injury was sustained while on active duty
* he was unable to continue his Army career due to an injury sustained in Iraq
* his DD Form 214 does not show a medical reason for discharge
* he is not able to qualify for benefits due to him

3.  The applicant provides a copy of his discharge orders from the U.S. Army Reserve (USAR), dated 9 July 2007.


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 was ordered to active duty from the USAR on 7 December 2003 in support of Operation Iraqi Freedom.  He served in Kuwait/Iraq from 2 March 2004 to 1 July 2004.  On 18 June 2005, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200, chapter 4, for completion of required active service.

3.  Item 24 (Character of Service) of the applicant's DD Form 214 for the period ending 18 June 2005 shows the entry "HONORABLE."  Item 28 (Narrative Reason for Separation) of this DD Form 214 shows the entry "COMPLETION OF REQUIRED ACTIVE SERVICE."

4.  Part IVc (Physical Fitness and Military Bearing) of the applicant's Noncommissioned Officer Evaluation Report (NCOER) for the period March 2005 through February 2006 (which shows his primary military occupational specialty was 88M (motor transport operator)) shows his rater rated him "Success (Meets standard)."  It also shows he had a profile.  The bullet comments were "Soldier has been able to perform his duties despite his profile," "Knows how to handle stress; works extremely well under pressure," "Worked hard to overcome physical limitations despite serious injury," and "Always presents an exceptional demeanor and military appearance."  His rater rated him "Fully Capable" in his overall potential for promotion and/or service in positions of greater responsibility.  His senior rater rated his overall performance as successful and rated his overall potential for promotion and/or service in positions of greater responsibility as superior.

5.  A DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), dated 
31 January 2006 (it appears this date should be 2007), shows the applicant was diagnosed with chronic right (dominant) shoulder pain; a left elbow diagnosis 


(found medically acceptable); and hypercholesteremia (sic) (found medically acceptable).  The MEBD recommended referral to a Physical Evaluation Board (PEB).  On 14 February 2007, the applicant agreed with the MEBD's findings and recommendation.

6.  On 30 May 2007, a PEB found the applicant physically unfit due to a right shoulder injury incurred while involved in a fire fight while deployed in Iraq.  MEBD diagnoses 2-3 met medical retention standards.  The PEB recommended a combined rating of 0 percent and that the applicant be separated with severance pay.  

7.  On 14 August 2007, the applicant was discharged from the USAR with disability severance pay (0 percent).   

8.  A Department of Veterans Affairs (DVA) Rating Decision, dated 4 August 2007, shows the applicant was granted service-connection for post-traumatic arthritis of the right shoulder with biceps tendonitis, status post-operative tenodesis (Major) (10 percent). 

9.  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/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.

11.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, his NCOER for the period March 2005 through February 2006 shows his rater rated him "Success (Meets standard)" in physical fitness and military bearing and his senior 


rater rated his overall performance as successful which shows he was able to perform his military duties.  Therefore, it appears his raters believed he was fully capable of performing his duties well after his release from active duty on
18 June 2005.  There is insufficient evidence to show the applicant was unable to perform his duties or he was eligible for physical disability processing prior to his release from active duty on 18 June 2005.  Therefore, there is no basis for granting the applicant's request.   
  
2.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigning disability ratings as it sees fit.

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)                                         AR20090018784



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ABCMR Record of Proceedings (cont)                                         AR20090018784



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