IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20090020732 


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

2.  The applicant states he should be medically discharged because of his unsuccessful efforts to reenlist due to his Department of Veterans Affairs (DVA) disability rating of 50 percent which disqualified him.

3.  The applicant provides:

* Service personnel records
* Deployment reports
* Service medical records
* DVA records 
 
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 21 September 1998 for a period of 
8 years.  He was ordered to active duty on 10 February 2003 in support of Operation Enduring Freedom.  He served as a laundry and shower specialist in Iraq from 23 April 2003 to 1 August 2004.  On 27 September 2004, he was released from active duty and transferred to the USAR to complete his remaining service obligation.  



2.  Records show the applicant was issued a temporary profile of "3" for bilateral shoulder pain on 1 October 2005 and 9 September 2006.  

3.  On 18 September 2006, the applicant extended his enlistment for a period of 1 year.  His reenlistment eligibility worksheet, dated 18 September 2006, states he is currently on profile, he started his physical but needs medical records from DVA to complete, and that Military Occupational Specialty Medical Retention Board (MMRB) processing was initiated for his injury. 

4.  A DVA Rating decision, dated 4 October 2006, shows the applicant was granted service connection for chronic sprain/strain of cervical spine 
(20 percent), chronic sprain/strain of thoracic, lumbosacral strain (20 percent), right shoulder tendinitis (10 percent), left shoulder tendinitis (10 percent), allergic/irritant rhinitis/sinus (0 percent), and chronic diarrhea (0 percent).  Service connection for Post Traumatic Stress Disorder (PTSD) and respiratory problem (identified as sleep apnea) was denied.  His overall or combined rating is 50 percent.   

5.  Records show the applicant was issued a temporary profile of "3" for bilateral shoulder pain on 27 October 2006.  

6.  The applicant provided a medical record, dated 22 February 2007, which shows the Physical Review Board at the Human Resources Command, St. Louis, Missouri found he did not meet medical retention standards with a physical profile of 133113.  The action directed by the Physical Review Board was to refer the applicant's case to the board.  These proceedings are not in the available records.    

7.  On 27 February 2007, the applicant was issued a permanent profile for chronic low back pain with chronic strain/sprain of cervical and thoracic spine, chronic tendonitis to shoulders bilaterally, PTSD, and chronic diarrhea with a physical profile of 133113.  The preparing official indicated that a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) was needed in item 
4c (If a permanent profile with a 3 or 4 PULHES, does the Soldier meet retention standards in accordance with chapter 3, Army Regulation 40-501? (If USAR/ARNG/ARNGUS Soldier not on active duty see paragraph 9-10 & 10-26, Army Regulation 40-501 if Soldier does not meet retention standards)). 

8.  A memorandum, dated 31 August 2007, to the Commander, Army Reserve Medical Command in Pinellas Park, FL, shows the applicant's commanding 


officer recommended he be discharged from the Army Reserve due to his mental condition and physical limitations.  This memorandum states, in pertinent part:

* The commanding officer feels the applicant has not satisfactorily performed his duties as the noncommissioned officer in charge of the Laundry and Bath section
* The applicant is currently flagged for failing the APFT in May 2008
* The applicant has been diagnosed with chronic low back pain with chronic strain/sprain of cervical and thoracic spine; chronic tendonitis to shoulders bilaterally; PTSD; and chronic diarrhea
* The applicant missed 1 drill day on 8 July 2007
* Minimum limitations for his MOS and expectation for his position has been met   

9.  On 20 September 2007, the applicant extended his enlistment for a period of 3 months.  His reenlistment eligibility worksheet, dated 20 September 2007, states he is undergoing an MMRB and awaiting the results.        

10.  The available records do not contain MEB/PEB proceedings.  However, a congressional inquiry, dated 15 January 2008, states an MEB found the applicant unfit in July 2007 and notified him in a certified letter in August 2007.  The applicant was also given 30 days to respond after which he would be discharged in accordance with Army regulatory guidance.  The applicant responded as indicated in his "Oath of Extension of Enlistment" dated and approved by the commanding officer of his unit on 20 September 2007.  

11.  On 26 January 2008, the applicant was honorably discharged from the USAR under the provisions of Army Regulation 135-178.

12.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  This regulation provides, in pertinent part, the honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that 


the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.

14.  Title 10, U. S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

15.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be medically discharged because of his unsuccessful efforts to reenlist due to his DVA disability rating of 50 percent which disqualified him.    

2.  The applicant appears to make two mutually exclusive contentions -- either he was so medically unfit that he should have been given a medical discharge, or he was so fit that he should have been allowed to reenlist.

3.  In the absence of evidence to the contrary, it must be presumed the applicant’s separation from the USAR was administratively correct and in conformance with applicable regulations.

4.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

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)                                         AR20090020732





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ABCMR Record of Proceedings (cont)                                         AR20090020732



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