IN THE CASE OF:	 

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090019514 


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 reconsideration of an earlier request to correct his records to show he was medically retired from the Texas Army National Guard (TXARNG), not discharged.

2.  The applicant states he sustained an injury while performing his military duties that is supported by a line of duty determination.  Recently, he had surgery to place a metal plate in his neck at a Department of Veterans Affairs (VA) hospital.  Based on this surgery, he states he should be medically retired from the TXARNG.  Additionally, he states he has filed an application for traumatic brain injury (TBI) compensation based on an injury occurring in 2005.

3.  The applicant provides the following documents:

	a.  a letter from the VA, dated 16 October 2009, stating the applicant was medically and surgically treated for cervical spinal stenosis;

	b.  VA Rating Decision, dated 2 March 2009;

	c.  VA Rating Decision, dated 29 May 2008;

	d.  VA Rating Decision, dated 13 November 2007;


	e.  copies of his application for Traumatic Servicemember's Group Life Insurance (TSGLI), dated 25 August 2008;

	f.  health summary initial evaluation for post-traumatic stress disorder (PTSD), dated 10 May 2008; and

	g.  copies of multiple medical progress notes from his VA medical records.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080010571, dated 6 November 2008.

2.  The applicant's evidence showing he had medical and surgical treatment for cerival spinal stenosis; a VA Rating Decision, dated 2 March 2009; and multiple documents from his VA medical treatment records were not previously considered by the Board.  This is new evidence that requires consideration by the Board.

3.  The applicant had prior service in the Regular Army, Army National Guard (ARNG), and the U.S. Army Reserve (USAR).  The applicant enlisted in the TXARNG on 24 April 2004 in military occupational specialty (MOS) 19D (Cavalry Scout) in the rank/grade of Sergeant (SGT)/E-5.

4.  The applicant was ordered to active duty in support of Operation Iraqi Freedom (OIF) on 26 June 2004.  He arrived in Iraq on 23 November 2004.

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows the applicant was treated at the Troop Medical Clinic (TMC) Forward Operating Base (FOB), Iraq, on 20 June 2005 for low back pain (initial injury occurred on
20 September 2004, at Camp Shelby, MS, while loading equipment into a vehicle).

6.  On 25 October 2005, the applicant departed Iraq.

7.  A DA Form 3349 (Physical Profile), dated 2 November 2005, shows the applicant was issued a temporary profile for chronic low back pain, cervical strain, and chronic fatigue.  The profile expired on 2 February 2006.

8.  Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, Orders 355-401, dated 21 December 2005, show the applicant was assigned to the medical holdover unit at Fort Sam Houston, TX for medical treatment.

9.  A Brooke Army Medical Center (BAMC) Form 1030 (Notification of Patient's Medical Status), dated 4 January 2006, shows the applicant was treated for lower back pain, cervical strain, chronic fatigue, and lesion right lower lid.

10.  The applicant was issued a temporary profile for chronic low back pain, cervical strain, and chronic fatigue on 5 January 2006.  This profile expired on 5 April 2006.

11.  On 5 January 2006, the applicant extended his current enlistment in the TXARNG for 1 year, changing his expiration of term of service (ETS) date to 23 April 2007.

12.  The applicant was released from active duty (REFRAD) and assigned to Headquarters and Headquarters Company, 386th Engineer Battalion, TXARNG, effective 27 January 2006.  He was issued a DD Form 214 which shows in block 28 (Narrative Reason for Separation) the entry "COMPLETION OF REQUIRED ACTIVE SERVICE."  Records show that the applicant had competed 1 year, 7 months, and 2 days of active federal service at the time of his REFRAD.

13.  A DA Form 2166-8 (Noncommissioned Officer Evaluation report (NCOER)) for the period 30 April 2007 through 29 July 2007 showed the applicant successfully met all the requirements of duty MOS 19D2O at the time of this change of rater report.

14.  The applicant extended his current enlistment in the TXARNG by an additional 6 months, which changed his ETS date to 23 October 2007.  Subsequently, the applicant was discharged under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-35a with an honorable discharge, in the rank/grade of SGT/E-5, due to ETS.  The applicant's National Guard Bureau (NGB) Form 22 for the period ending            23 October 2007 shows he completed 18 years, 9 months, and 20 days of qualifying service for pay.  

15.  On 13 November 2007, the VA Rating Decision shows he had a combined evaluation of 30 percent (%) and rated the applicant as follows:

* 10% for degenerative disc disease, cervical spine 
* 10% for degenerative disc disease, lumbosacral spine 
* 10% for right knee disability 
* 10% for sinus condition for service connected injuries 

16.  On 29 May 2008, the VA Rating Decision shows he was rated as 30% for PTSD for service-connected injuries with a combined evaluation of 50%.

17.  As new evidence, the applicant provided a VA Rating Decision, dated 2 March 2009, showing he was rated 10% for service-connected residuals of TBI, and 10% based on surgical or other treatment necessitating convalescence.  Initially on 13 January 2009, he received a temporary evaluation of 100% based on surgical or other treatment necessitating convalescence.   

18.  References:

	a.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of 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 commanders of medical treatment facilities (MTFs) who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a Medical Evaluation Board (MEB).

	b.  Army Regulation 635-40 states that MEBs 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  For an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating.

	c.  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.

	d.  Title 38, U.S. Code, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  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.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a Veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

2.  In order to be medically retired, a Soldier must have been found medically unfit to perform the duties of his MOS within his rank.  His last NCOER indicated his rating officials believed he successfully met all the requirements of MOS 19D20, an indication that he was not medically unfit for retention.  As there was no referral to an MEB or a finding of unfitness, there was no physical evaluation board (PEB).  Since there was no PEB, (and more importantly, no evidence that he required referral into the physical disability evaluation system at the time of his discharge) there can be no medical retirement.

3.  As the applicant was discharged upon his ETS from the TXARNG and subsequently the Reserve of the Army, there is no merit in his request for a medical retirement.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080010571, dated 6 November 2008.



      ____________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)                                         AR20090019514



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ABCMR Record of Proceedings (cont)                                         AR20090019514



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