IN THE CASE OF:	

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090019780 


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 correction of her military records to show that she was retired due to a physical disability.

2.  The applicant states while on active duty, her primary care physician refused to treat her because he did not believe her.  She visited an Army neurologist at Fort Bliss, Texas, who recommended medication.  However, her primary care physician still refused to provide treatment.  The applicant then became pregnant.  As a result of increased pain and her husband's deployment, she opted to be discharged due to pregnancy.  The applicant contends that prior to discharge she had a permanent physical profile.  The Department of Veterans Affairs (VA) rated her 60 percent disabled.

3.  The applicant provides, in support of her application, a copy of her VA Rating Decision, dated 6 October 2009.

CONSIDERATION OF EVIDENCE:

1.  On 6 April 2006, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty 35M (Human Intelligence Collector).  She was subsequently assigned to Fort Huachuca, Arizona.

2.  A DA Form 3349 (Physical Profile) dated 25 April 2008 reports the applicant was placed on a temporary physical profile due to pregnancy.  Her estimated delivery date was 25 December 2008.
3.  On 20 May 2008, the applicant's commander provided pregnancy counseling.  The applicant acknowledged that she understood her entitlements and responsibilities.  She elected separation due to pregnancy.

4.  On 30 May 2008, the applicant underwent a medical examination.  She was diagnosed with carpal tunnel syndrome, right [wrist]; hypothyroidism; and chronic left arm pain.

5.  On 23 June 2008, the applicant requested discharge under the provisions of Army Regulation 635-200, chapter 8 due to pregnancy.

6.  The appropriate authority approved the request and directed the issuance of an Honorable Discharge Certificate.  Accordingly, she was discharged on 18 July 2008.  She had attained the rank of specialist, pay grade E-4, and completed 
2 years, 3 months, and 13 days of creditable active service.

7.  The applicant's VA Rating Decision, dated 6 October 2009, indicates she was granted a service connected disability effective 19 July 2008 as follows:

	a.  30 percent for depression;

	b.  10 percent for a painful right wrist scar;

	c.  10 percent for hypothyroidism;

	d.  10 percent for cervical spine degenerative disc disease;

	e.  10 percent for right carpal tunnel syndrome;

	f.  10 percent for left cubital tunnel syndrome; and

	g.  zero percent for migraine headaches.

8.  The VA denied service connection for a mid back condition, a benign cyst, and the removal of her wisdom teeth with complications.

9.  Army Regulation 635–200 (Personnel Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while
providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 8 establishes policy and procedures and provides authority for voluntary separation of enlisted women because of pregnancy.   The service of a Soldier separated because of pregnancy, who is beyond entry-level status, will be characterized as honorable or under honorable conditions.
10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

11.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

12.  Title 38, U.S. Code, sections 310 and 331, permit 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 physically unfit 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her military records should be corrected to show she was retired due to a physical disability.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  There is no evidence of record and she provides no evidence to show she had a physical profile for any condition other than pregnancy.  Since the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  The VA operates under its own policies and regulations.  The VA has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service "service-connected" and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform her duties and assign an appropriate disability rating before she can be medically retired or separated.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20090019780



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ABCMR Record of Proceedings (cont)                                         AR20090019780



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