IN THE CASE OF:	 

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090020697 


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 his honorable discharge from the U.S. Army Reserve (USAR) be changed to a medical retirement.

2.  The applicant states that due to ongoing medical problems from a gunshot wound and post traumatic stress disorder (PTSD) he received as a result of his tour in Vietnam, he should receive a medical retirement.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 5 October 1970; and a copy of his Department of Veterans Affairs (DVA) rating decision, dated 27 October 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 7 August 1949 and enlisted in the Regular Army on 9 December 1968.  He subsequently completed the U.S. Army Warrant Officer (WO) Course and he was honorably discharged on 16 November 1969 to accept a WO appointment.

2.  His records also show he was appointed as a Reserve warrant officer one (WO1) with concurrent call to active duty and executed a DA Form 71 (Oath of Office - Military Personnel) on 17 November 1969.  He subsequently served in Vietnam from on or about 31 December 1969 to on or about 2 May 1970 in military occupational specialty (MOS) 110B (Rotary Wing Pilot, Observation, Utility, and Light Cargo).
3.  On 19 April 1970, he suffered a combat injury and he was transferred to the U.S. Naval Hospital, Great Lakes, IL.  He was subsequently considered by an informal physical evaluation board (PEB) that convened at Fitzsimons General Hospital, Denver, CO, on 10 August 1970.  The PEB determined he was unfit for military service and recommended his retirement by reason of temporary physical disability.  He concurred and waived his right to a formal hearing of his case.

4.  On 5 October 1970, he was honorably retired in the rank of WO1 and he was placed on the temporary disability retired list (TDRL) in accordance with Title 10, U.S. Code, sections 1202 and 1372 by reason of temporary disability.

5.  In November 1971, he underwent a TDRL physical examination and in June 1972, subsequent to the TDRL medical reevaluation, he was determined to be physically fit and he accepted reappointment in the USAR in the grade of WO1.  Accordingly, he was removed from the TDRL on 31 October 1972.

6.  Prior to his removal from the TDRL, he was reappointed as an Aviation WO1 in the USAR and he executed a DA Form 71 on 25 September 1972.  He was initially assigned to the USAR Control Group (Reinforcement).

7.  He served in various positions as a UH-1 helicopter pilot and was promoted through the ranks to chief warrant officer two (CW2) on 17 November 1972, chief warrant officer three (CW3) on 17 November 1978, and to chief warrant officer four (CW4) on 17 November 1984.

8.  On 7 January 1993, he submitted an application for appointment as a WO in the Indiana Army National Guard (INARNG).  Accordingly, he was discharged from the USAR on 24 January 1993 and he was subsequently appointed as a CW4 and he executed a National Guard Bureau (NGB) Form 337 (Oaths of Office) in the INARNG on 24 January 1993.

9.  On 6 July 1993, by memorandum, the U.S Total Army Personnel Command, St. Louis, MO, notified him that he was considered for promotion by a Reserve Components Selection Board (RCSB), but he was not selected for promotion.

10.  On 30 November 1993, he resigned from the INARNG.  Accordingly, he was honorably released from the ARNG and he was transferred to the USAR Control Group (Reinforcement).

11.  There is no activity in his personnel records from November 1993 through March 2009, with the exception of the following:

	a.  On 21 August 2001, by memorandum, the U.S. Army Human Resources Command, St Louis (USAHRC-STL), notified him that he was considered for promotion by the 31 April 2001 RCSB, but he was not selected.

	b.  On 26 March 2009, HRC-STL published Orders D-03-906633 directing his discharge from the USAR in accordance with Army regulation 135-175 (Separation of Officers), effective 31 August 2009, because of reaching the maximum allowable age.  He turned 60 on 7 August 2009.

12.  He submitted a copy of his DVA rating decision, dated 27 October 2009, that shows he was awarded service-connected disability compensation for PTSD; right sciatic neuropathy secondary to shell fragment; shell fragment wound to right buttock, scrotum, and left thigh; joint dysfunction; lower back condition; and hip condition.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards (MEBDs), which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  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.  This regulation also states the following:

	a.  Paragraph 2-2b(1) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty (until he is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation; such a member should not be referred to a PEB unless his physical defects raise substantial doubt that he is fit to continue to perform the duties of his office, grade, rank, or rating.

	b.  Paragraph 2-2b(2) states that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that:

		(1)  the member, in fact, was physically unable to adequately perform the duties of his office, grade, rank, or rating even though he was improperly retained in that office, grade, rank, or rating for a period of time, and

		(2)  acute, grave illness or injury or other deterioration of physical condition, that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability, rendered him unfit for further duty.

	c.  Paragraph 2-2b(3) states that when the member's referral for physical evaluation is related to physical examinations given as a part of non-disability retirement processing (voluntary or mandatory), the above evidence must be clear and convincing to overcome the presumption of fitness.  In other cases (resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), the presumption of fitness may be overcome by a preponderance of evidence.

	d.  Paragraph 2-1 provides 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  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.

14.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities (VASRD).  Department of Defense Instruction (DODI) 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent (%), rising in increments of 10%.

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating 

of at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

16.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

17.  Army Regulation 135-175 provides policy, criteria, and procedures for the separation of officers of the ARNG and USAR.  Paragraph 4-4 of this regulation states that members of the Army Reserve will be removed from an active status for attaining maximum allowable age as prescribed in Army Regulation 140-10 (Assignments, Attachments, details, and Transfers).  Removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) or, if eligible, transfer to Control Group (Inactive).

18.  Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Paragraph 7-3 provides for maximum age (removal rule 2) and states Soldiers not sooner removed for another reason will be removed when they reach maximum age. Removal date will be the last day of the month in which they reach the stated age which is age 60 for commissioned WOs and age 62 for WOs other than commissioned WOs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge from the USAR should be changed to a medical retirement.

2.  The applicant sustained an injury in Vietnam for which a PEB determined he was unfit for military service and recommended his retirement by reason of temporary physical disability.  He was accordingly placed on the TDRL in October 1970.

3.  He underwent a TDRL re-examination in November 1971 and he was found fit for duty.  Accordingly, he was reappointed in the USAR and subsequently served and continued to serve in the USAR or the ARNG from 1971 to 1993.  His service was not terminated because of any physical condition.  From 1993 until 2009 he did not perform any active, ARNG, USAR, or any other military service.  He was ultimately discharged on 31 August 2009 from the USAR because of reaching the maximum allowable age.

4.  The Army's PDES provides that the mere presence of impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform in the office, grade, rank, or rating held.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES. 

5.  It is clear that his 1971 determination of fitness and subsequent service from 1971 to 1993 is an indication that his medical condition did not affect his ability to perform in his grade and specialty and there was no reason to refer him to the PDES.  Therefore, he was not considered by an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, he could not have been issued a medical discharge or retirement for physical disability.  Additionally, there is no evidence of any other disabling illness or injury that affected his performance in the MOS or grade he held and would have warranted his entry into the PDES.

6.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board.  PEB's evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating to provide a full and fair hearing for the Soldier; and make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

7.  The applicant now believes he should receive a medical retirement because the DVA granted him service-connected disability compensation.  However, an 

award of rating by another agency, such as the DVA (or Social security Administration, or any other agency) does not establish error by the Army.  Operating under different laws and their own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability. 

8.  Regardless of the applicant’s current medical conditions, what caused them or how the DVA chooses to currently evaluate them, the applicant was not entitled to physical disability processing or retirement at the time of discharge from the USAR.  The overall merits of the case, including his submission and arguments are insufficient as a basis to grant him the requested relief.

9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.

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)                                         AR20090020697



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ABCMR Record of Proceedings (cont)                                         AR20090020697



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