IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20090021554 


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, a medical discharge with permanent disability retirement.

2.  The applicant states, in effect, his diagnoses of anxiety and depression were not considered by a medical evaluation board (MEB) prior to his discharge.  He was also placed on permanent profile for a shoulder injury and never received a MEB.  He was given a reenlistment code of 1, but was not allowed to continue service in the military because of his injuries.  After receiving disability benefits from the Department of Veterans Affairs (VA), he was barred from reenlistment.

3.  The applicant provides copies of his 1998 and 2005 DD Forms 214 (Certificate of Release or Discharge from Active Duty); a DA Form 7349-R (Initial Medical Review – Annual Medical Certificate); a California Army National Guard (ARNG) Form 40-7-E (Medical Determination/Physical Profile Request); his 2008 ARNG discharge orders; and 2005, 2008, and 2009 VA Rating Decisions.

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.  The applicant's military records show he enlisted in the Delayed Entry Program on 25 April 1996.  He enlisted in the Regular Army in pay grade E-2 on 15 August 1996 for 2 years.  He completed training and was awarded military occupational specialty 11B (Infantryman).  He was promoted to pay grade E-4 on 1 March 1998.

3.  There is no evidence the applicant was referred to an MEB or a physical evaluation board (PEB) for consideration of any medical condition(s) during his period of active duty.

4.  The applicant enlisted in the Washington ARNG in pay grade E-4 on 26 October 1998 for 5 years, to be effective upon his release from active duty.

5.  The applicant was honorably released from active duty on 4 December 1998 for completion of required active service and transferred to a Reserve unit.  Item 27 (Reentry Code) of his DD Form 214 shows "1."

6.  On 14 November 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom for 545 days.  The orders stated if he failed to meet deployment medical standards (whether because of a temporary or permanent medical condition) he could be released from active duty and returned to his prior Reserve status and would be subject to a subsequent order to active duty upon resolution of the disqualifying medical condition.  He entered active duty on 15 November 2003.

7.  The applicant submitted a copy of a DA Form 7349-R, dated 19 November 2003, that shows he was determined fully fit on that date and returned to full duty.  

8.  The applicant reenlisted in the Washington ARNG on 19 March 2005 for 3 years.

9.  On 21 March 2005, he was issued orders that state, in effect, he was to be released from active duty, but not by reason of physical disability.  He was honorably released from active duty in pay grade E-5 on 22 April 2005 for completion of required active service and transferred to a Reserve unit.


10.  The applicant also submitted a copy of a VA Rating Decision, dated 5 October 2005, that shows he was granted a 30-percent service-connected disability for left foot cold injury, 30 percent for right foot cold injury, 30 percent for post-traumatic stress disorder (PTSD), and 10 percent for tinnitus.  He was denied service-connection disability for a right shoulder condition.

11.  The applicant also submitted a copy of a California ARNG Form 40-7, dated 3 August 2006, that indicated he was assigned a permanent physical profile for a medical diagnosis of a shoulder injury.  His limitations were:  no carrying and firing a weapon, moving with a fighting load at least 2 miles, constructing an individual fighting position, Army Physical Fitness Test (APFT) push-ups, 2-mile runs, and carrying/lifting of a maximum weight of 10 pounds.  He was referred to orthopedics and noted he may need surgery.

12.  The applicant was issued an annual Noncommissioned Officer Evaluation Report for the period 1 December 2006 to 30 November 2007, wherein he received a success (meet standards) for physical fitness and military bearing and had passed the APFT.  He received a rating of "fully capable" and it was noted he could best serve in the Army as a team, section, or squad leader.

13.  The applicant was honorably discharged from the Washington ARNG and as a Reserve of the Army on 18 March 2008 at the expiration of his term of service. 
He was credited with completion of 9 years of total service for retired pay.  Item 26 (Reentry Code) of his National Guard Bureau Form 22E (Report of Separation and Record of Service) shows "1."

14.  There is no evidence the applicant was referred to an MEB or a PEB for consideration of any medical conditions during his period of active duty.

15.  A VA Rating Decision, dated 21 May 2008, shows he was granted a 
40-percent service-connected disability for traumatic brain injury with cognitive disorder and 10 percent for post-concussive syndrome with balance changes (dizziness).  A VA Rating Decision, dated 26 February 2009, shows his 
30-percent disability was increased to 50 percent for PTSD with depression.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 MEB's, 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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

17.  Army Regulation 40-501, chapter 3, provides that, for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.

18.  Title 38, U.S. Code, sections 1110 and 1131, permit 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 the 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.

19.  Unlike the Army, 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 rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

20.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), previous and current edition, provides prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of the regulation includes a list of Armed Forces reentry codes, including Regular Army RE codes.  RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a medical discharge with permanent disability retirement.  He has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks. 

2.  There is an absence of medical documentation to support his statements his diagnoses of anxiety and depression and shoulder injury should have been considered by an MEB.  There is also no evidence he was diagnosed/received treatment or referred to an MEB or a PEB for consideration of any medical condition(s) or PTSD prior to his 1998 and 2005 releases from active duty and 2008 discharge from the ARNG.  For each instance he was separated for completion of required service.  There is evidence of record to indicate that the applicant felt himself to be sufficiently physically fit in 1998 based on his enlistment in the ARNG, his entry on active duty in 2003 in support of Operation Iraqi Freedom, and his 2005 reenlistment in the ARNG.  His 2006-2007 evaluation report shows he successfully met the standards of physical fitness and military bearing and passed his APFT.

3.  The DA Form 7349-R, California ARNG Form 40-7-E, and VA documentation provided by the applicant with his application were also carefully considered.  However, the 2005 VA Rating Decision shows he was denied service-connected disabling for his right shoulder and was assigned 30 percent for PTSD after his release from active duty.  The award of a VA rating or an increase of a VA rating does not establish entitlement to a referral to an MEB for disability processing.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, the applicant was properly evaluated and is being compensated for his service-connected medical conditions by the VA.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090021554



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ABCMR Record of Proceedings (cont)                                         AR20090021554



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