IN THE CASE OF:	  

		BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090020423 


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 his military records to show he was retired due to physical disability.

2.  The applicant states that he should not have been separated from active duty on 31 October 2007.  He contends that he served in Iraq from February 2004 to March 2005.  Upon his return to Germany in 2005, he was treated for post traumatic stress disorder (PTSD) by the military mental health clinic in Vilseck, Germany.  While receiving this medical treatment, he performed a variety of staff jobs.  He should have been evaluated by a medical evaluation board (MEB) and a physical evaluation board (PEB) prior to his release from active duty in 2007.  The Department of Veterans Affairs (VA) initially rated him at 30 percent disabled due to PTSD, and later increased the rating to 70 percent.   

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and approximately 79 pages of progress notes and reports from the Wilmington VA Medical Center, dated from July 2008 through November 2009. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was honorably discharged from the military service.  He had attained the rank of captain, pay grade O-3.


2.  The applicant's DD Form 214, ending on 31 October 2007, shows that he had served on active duty as a U.S. Army Reserve (USAR) Infantry officer from 
20 May 2002.  He was released from active duty due to completion of required active service.  He was transferred to the USAR Control Group (Reinforcement).  

3.  The applicant's Officer Evaluation Report for the period ending 31 October 2007 shows he was performing duties as a Chief of Infantry Operations Branch, Grafenwoehr Training Area, and he received very highly commendatory ratings.

4.  A record of telephonic communications between the applicant and his career manager at the US Army Human Resources Command, St. Louis, Missouri, indicate that the applicant was placed on mobilization orders in June 2008.  He stated that he wanted an exemption because he was suffering from PTSD.  He submitted a delay and exemption packet which was approved in August 2008.  

5.  Orders D-09-824224, HRC-STL, dated 12 September 2008, honorably discharged the applicant effective on the date of the orders.  

6.  The applicant's service medical records are not available for review.  There is no evidence in the available military records showing that the applicant had a medical condition warranting appearance before either an MEB or a PEB. 

7.  The VA progress note, dated 29 October 2009, appears to indicate that the applicant may have received a VA rating decision awarding him service connection for PTSD at less than 50 percent.

8.  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.

9.  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 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 that his military records should be corrected to show he was retired due to physical disability.

2.  The evidence of record clearly shows that the applicant completed his required active duty service and was transferred back to the USAR.  There is no available evidence showing that he was medically unfit at the time of his separation from active duty.  His last Officer Evaluation Report shows he was fully capable of performing his duties as an infantry officer, even if they were staff duties at the time.

3.  The applicant requested a delay and exemption from mobilization in June 2008.  He was subsequently discharged from the USAR.

4.  There is no evidence showing that he was medically unfit at the time of his discharge from the USAR.  Although he stated he was treated for PTSD upon his return from deployment, he did not provide any service medical records with his application.

5.  An award of a VA disability rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which 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 and/or social functioning.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

6.  In view of the above, the applicant's request should be denied at this time.  If he can provide his service medical records and his delay-and-exemption-from-deployment packet showing the reason he requested such delay he may apply for reconsideration.

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)                                         AR20090020423





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ABCMR Record of Proceedings (cont)                                         AR20090020423



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