IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20090020443 


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, disability retirement or separation from active duty in January 2006.

2.  The applicant states he incurred a back injury while serving in Iraq in August 2005 and as such should not have been released from active duty in January 2006.  He states he underwent a physical examination in December 2005 but was released from active duty in January 2006 without his medical condition being resolved.

3.  The applicant states as a result of his December 2005 physical examination he was subsequently discharged from the United States Army Reserve (USAR) in December 2006 and received a disability rating from the Department of Veterans Affairs (VA).  He notes he is currently rated at 50% by the VA.

4.  The applicant states his release from active duty after 14 months has affected his ability to use his 9/11 GI Bill entitlements.  He states he is only eligible for 60% of his benefits but would qualify for 100% if he had been discharged from active duty as a result of a service connected disability.  He maintains he should have been granted an active duty medical discharge and asks that his 2006 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected accordingly.




5.  The applicant provides the following:

* A copy of his January 2006 DD Form 214
* Medical treatment records from September 2005 and a Line of Duty determination
* A copy of his July 2006 report of medical examination
* His August 2006 permanent physical profile
* A copy of a 30 October 2006 memorandum notifying him of his medical unfitness for retention
* His initial VA disability rating document

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel offers nothing beyond that provided by the applicant and notes they “rest this case on the evidence of record."

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.  Records available to the Board indicate the applicant enlisted in the USAR on 19 March 2003.  As part of his enlistment process he underwent a physical examination which found him qualified for enlistment without any noted conditions.

3.  On 27 October 2004 the applicant was ordered to active duty in support of Operation Iraqi Freedom.  According to entries on his DD Form 214, he arrived in Southwest Asia on 28 December 2004.

4.  According to documents provided by the applicant, in September 2005 the applicant sought treatment for low back pain which stemmed from lifting concrete and asphalt in August 2005.  Although he had some discomfort when touching his toes, he was able to touch his toes and his range of motion was within normal limits.  The diagnosis was possible lower back strain and he was prescribed medication to be taken for 5 to 14 days.  

5.  The applicant redeployed on 4 December 2005 and on 6 December 2005 a determination was made that the applicant’s lower back strain was incurred in the line of duty.  The applicant’s file contained no other December 2005 medical evaluation documents.

6.  On 2 January 2006 the applicant was released from active duty by reason of having completed his required active service.

7.  Documents in the applicant’s official military personnel file indicate he underwent a physical examination on 19 July 2006.  The examining physician noted the applicant’s chronic low back pain and recommended continued physical therapy and that he was not taking any prescription medicine.  

8.  On 22 August 2006 the applicant was issued a permanent physical profile for his chronic low back pain due to herniated discs.  A medical retention board was recommended.  On 24 August 2006 the applicant was determined to be physically fit for retention.

9.  On a DA Form 7349 (Initial medical Review - Annual Medical Certificate), dated 12 October 2006, the applicant indicated he had herniated discs/degenerative back disease and trauma to his back due to being hit by a car.

10.  On 19 October 2006 a new permanent profile was issued which noted the applicant did not meet retention standards.  On 30 October 2006 the applicant was notified he was determined to be medically disqualified for continued service in the USAR.  On 13 December 2006 the applicant was honorably discharged from the USAR.

11.  In September 2006 the applicant was granted a 10% disability rating by the VA for “multilevel degenerative disease of the lumbar spine with herniated disc at L4-5."  

12.  Army Regulation 40-501 (Standards of Medical Fitness) provides, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that 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.  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.  

14.  That above regulation states that commanders may refer members to the servicing medical treatment facility for medical evaluation when it is believed that the member is unable to perform the duties of his office, grade, rank, or rating because of physical disability.  Commanders of medical treatment facilities who are treating patients in an assigned, attached or outpatient status may also initiate action to evaluate a member’s physical ability to perform the duties of his office, grade, rank, or rating.

15.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

16.  The Post 9/11 GI Bill provides financial support for education and housing to individuals with at least 90 days of aggregate service on or after 11 September 2001, or individuals discharged with a service-connected disability after 30 days.  Soldiers with 12 to 18 months of active duty may receive up to 60% of payable benefits.  Soldiers with at least 36 months of active duty or those with at least 30 continuous days on active duty who were discharged due to a service-connected disability are eligible for 100% of payable benefits.



DISCUSSION AND CONCLUSIONS:

1.  While the applicant may very well have suffered an injury to his back while on active duty resulting in lower back pain, there is no evidence available, and the applicant has not provided any, that shows the condition rendered him unfit to perform his duties at the time he was released from active duty in January 2006.

2.  The applicant’s unit commander, or any medical professionals involved in the applicant’s medical treatment, could have initiated actions to refer the applicant for disability processing.  The fact that he was never referred for disability processing prior to his separation from active duty is evidence that his condition was not sufficiently disabling to warrant such processing.  

3.  Eight months after his separation from active duty the applicant was issued a permanent physical profile for his low back pain due to herniated discs.  Two months after that, he was notified he was determined to be medically disqualified for continued service in the USAR and, as a result, he was discharged from the USAR in December 2006.  However, there is insufficient evidence to show that the back condition for which he was found medically disqualified for retention in the USAR was due to the injury he incurred in August 2005 while on active duty (for lifting concrete and asphalt) or for an injury he incurred while not on active duty (i.e., back trauma due to being hit by a car).

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in and of itself, establish physical unfitness for Department of the Army purposes.

5.  While it may be unfortunate the applicant is unable to take full advantage of Post 9/11 GI Bill benefits his inability to obtain 100% of his benefit does not serve as a basis to change the reason for his January 2006 release from active duty.

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)                                         AR20090020443





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ABCMR Record of Proceedings (cont)                                         AR20090020443



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