IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100007224 


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

2.  The applicant states he was injured while on active duty and his injury was deemed a service-connected injury.  He underwent surgery for the injury that occurred while on active duty and his Reserve unit ultimately retired him from the USAR instead of sending him back on active duty to be medically retired.  He was told he should have been medically retired so he may start collecting retired pay now instead of at age 60.  

3.  The applicant provides a copy of his DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 9 August 2007; and a copy of his Department of Veterans Affairs (VA) rating decision, dated 11 January 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 7 September 1962 and served in the U.S. Marine Corps from 23 November 1981 to 6 September 1985.  

2.  He enlisted in the USAR on 21 December 1985 and held military occupational specialties (MOS) 71B (Patient Administration Specialist), 27D (Legal Specialist), and 51H (Construction Specialist).  He served through multiple reenlistments or extensions in the USAR and attained the rank/grade of sergeant first class (SFC)/E-7.  He was assigned to the 983rd Engineer Battalion, Monclova, OH.

3.  On 5 August 2000, during annual training (AT), he was climbing down a ladder after installing a siding for a picnic shelter when he fell and landed on his hand.  He was taken to a community hospital where he was diagnosed with a fractured finger.  His injury was determined to be in line of duty.

4.  His records show he received the following Noncommissioned Officer Evaluation Reports (NCOER) subsequent to this injury:

* Annual, from October 2000 through September 2001; he successfully passed his Army Physical Fitness Test (APFT) and met the height and weight standards; he was rated fully capable by his rater and had a successful overall performance and a superior potential by his senior rater
* Change of rater, from October 2001 through June 2002; he successfully passed his APFT and met the height and weight standards; he was rated fully capable by his rater and a had successful overall performance and a superior potential by his senior rater

5.  On 7 August 2002, he received his Notification of Eligibility for Retired Pay (20-year letter).  This letter notified him that he had completed the required years of qualifying service for non-regular retirement and would be eligible for retired pay upon application at age 60.

6.  On 15 January 2003, he was reassigned to the 9th Legal Services Team, Whitehall, OH, and on 3 March 2003, he extended his USAR reenlistment by 12 months.

7.  On 10 December 2003, he underwent a periodic physical examination and was determined to be physically fit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).

8.  On 22 March 2004, he executed a 3-year reenlistment in the USAR; however, on 13 April 2004, he was honorably discharged from the USAR.

9.  On 11 August 2004, he underwent an enlistment physical and he was determined to be qualified for enlistment.  He executed a 3-year enlistment in the USAR on the same date.

10.  During the month of July 2005, he received an annual NCOER, from August 2004 through July 2005, that shows he passed the APFT and met the height and weight standards, and he was rated fully capable by his rater and had a successful overall performance and a superior potential by his senior rater.

11.  On 23 June 2006, he successfully completed MOS 91P (Radiology Specialist) training that lasted from 11 July 2005 to 23 June 2006. 

12.  During the month of November 2006, he received a change of rater NCOER, from June 2006 through November 2006, that shows he did not take the APFT but met the height and weight standards, and he was rated fully capable by his rater and had a successful overall performance and a superior potential by his senior rater.

13.  On 15 August 2007, he was issued orders reassigning him from his current unit to the Retired Reserve, effective 31 August 2007, by reason of completing 20 or more years of qualifying service for retired pay at age 60.

14.  On 11 January 2010, the VA awarded him service-connected disability compensation for a degenerative disc disease of the cervical spine, radiculopaqthy of left extremity, left elbow tendonitis, and left ankle arthritis. 

15.  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 (MEBs), 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.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (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 2-1 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.

	b.  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.

	c.  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: (a) 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 (b) 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.

	d.  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.

16.  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 VA Schedule of Rating Disabilities.  

17.  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 percent.  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 percent.

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 any VA rating does not establish error or injustice by the Army.  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 VA does not have authority or responsibility for determining physical fitness for military service.  The VA 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 VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant sustained a finger injury on 5 August 2000 and subsequently received treatment.  He underwent at least two medical examinations that found him medically fit for retention or enlistment and he received several NCOERs that show he passed his APFT, met the height and weight standards, and he was rated as fully capable with superior potential by his rating officials.  Nowhere in his records does it show he suffered an injury, wound, or illness that rendered him physically unfit or warranted his entry into the PDES

3.  He now believes he should have received a medical retirement because the VA granted him service-connected disability compensation.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.

4.  The PDES provides that the mere presence of a medical 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 reasonably be expected to perform because of office, grade, rank, or rating.  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 awarded if the condition is unfitting.

5.  It is clear that his determination of fitness and subsequent service through August 2007 is an indication that his finger injury 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 MEB.  Without an MEB, 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.  

6.  Regardless of the applicant’s current medical conditions, what caused them or how the VA chooses to currently evaluate them, the applicant was not entitled to physical disability processing or retirement at the time of retirement from the USAR.  In order to justify correction of a military record, he must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He 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)                                         AR20100007224



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100007224



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1