BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100007361 


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 to be medically retired and placed on the Permanent Disability Retired List with a disability rating of 40 percent and that he be provided back retirement pay from the date of his separation to the present.

2.  The applicant states he should be medically retired with a 40-percent disability rating based on the disability rating he was assigned by the Department of Veterans Affairs (VA).  The applicant claims medical records show he was treated in Iraq for ringing in his right ear and pain to the left side of his neck that was caused by an improvised explosive device (IED) detonating and hitting the truck he was travelling in while in a convoy in Iraq on 14 June 2004.

3.  The applicant states he underwent a follow-up examination on 23 June 2004 and was diagnosed with cervical strain.  He states he was separated from active service on 6 March 2005.  He also states he received a 40-percent disability rating from the VA for post-traumatic stress disorder (PTSD) in March 2005.

4.  The applicant provides a self-authored supplemental statement and the enclosures it identifies as tabs A-G in support of his application.

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 record shows that after completing prior service in the Regular Army, Army National Guard (ARNG), and U.S. Army Reserve (USAR) between 27 February 1986 and 25 November 1994, the applicant enlisted in and entered the Texas ARNG on 18 February 2003.

3.  On 20 January 2004, while serving in the Texas ARNG, the applicant entered active duty in support of Operation Iraqi Freedom.  He served on active duty for 1 year, 1 month, and 17 days until being honorably released from active duty (REFRAD) by reason of completion of required active duty service and returned to his ARNG unit on 6 March 2006.

4.  On 6 June 2006, the applicant was honorably discharged from the ARNG in the rank of sergeant/E-5 for the purpose of transferring to the Individual Ready Reserve (IRR) of the USAR.  The National Guard Bureau Form 22 ((Record of Service and Report of Separation) he was issued at the time, as amended, shows he earned the Purple Heart and Combat Action Badge while in Iraq and that he completed a total of 13 years, 1 month, and 9 days of military service for retired pay at that time.

5.  The available medical treatment records and documents on file do not indicate the applicant suffered from a disabling medical or mental condition that would have precluded his continued service at the time of his REFRAD or at the time of his discharge from the ARNG.

6.  The applicant's record shows his expiration of term of service (ETS) was 17 February 2009 and there is no indication he took action to continue his USAR service.  The record also shows his last physical status indicated no physical limitations and listed a physical profile of "111111."

7.  The applicant provides some clinical theater notes indicating a neck stain and ringing in his ear after a convoy he was in was attacked by an IED, which resulted in his later award of the Purple Heart and Combat Action Badge.  He also provides the first page of a VA rating decision, dated 26 October 2005, which shows he was awarded service connection for PTSD (30 percent), cervical strain claimed as an upper back and neck strain (10 percent), and tinnitus (10 percent).  The VA rating decision also indicates service connection was not granted for his right hand fracture, right hand injury, and back pain and that his claim for hearing loss was deferred.  The applicant did not provide medical records or other background notes and documents used by the VA to arrive at this decision with his application.

8.  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 or her office, grade, rank, or rating.  Chapter 3 contains guidance on standards of unfitness because of physical disability and states the following:

	a.  Paragraph 3-1.  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.

	b.  Paragraph 3-2b(1).  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 can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	c.  Paragraph 3-2b(2).  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

9.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.

10.  The VA, 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.  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's contentions that he should be medically retired, placed on the Permanent Disability Retired List, and provided back retirement pay have been carefully considered.  However, the evidence is not sufficient to support granting the requested relief.

2.  By regulation, the mere presence of impairment does not, in and 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 due to his office, grade, rank, or rating.

3.  The applicant's record and the independent evidence he provides fails to indicate the applicant was unable to perform his assigned duties when he completed his active duty tour of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated by reason of completion of required active duty service.  Further, he continued to serve in the ARNG until 6 June 2006, prior to being discharged and transferred to the USAR, where he continued to serve until his ETS on 16 February 2009.  This continued service establishes a presumption of fitness and shows whatever conditions he may have suffered from did not prevent him from reasonably performing the duties of his office, grade, rank, or rating.

4.  The evidence shows the applicant is being treated and compensated for his service-connected medical conditions by the VA.  This is the proper agency to provide these services for service-connected conditions that were not found to be unfitting for further service through the PDES.  As a result, it appears there is no evidence of an error or injustice that would support granting the requested relief in this case.

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)                                         AR20100007361



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)