IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100010466 


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, that his discharge from the United States Army be set aside and that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show that he was medically retired by reason of permanent disability.

2.  The applicant states, in effect, he feels he should have been medically retired and would be unfit for duty.  He refers the Board to his Department of Veterans Affairs (VA) disability compensation rating of 50 percent.  He contends a rating of 30 percent or more found by the VA or the military should entitle one to a medical retirement.  

3.  The applicant provides a copy of his VA Rating Decision letter, dated 25 July 2008, and a copy of his DD Form 214

CONSIDERATION OF EVIDENCE:

1.  Information available to the Board indicates that the applicant enlisted in the U.S. Army Reserve under the Delayed Entry Program (DEP) on 3 August 2000 for a period of 8 years.  He was released from DEP status on 6 September 2000, and enlisted in the Regular Army on 7 September 2000.  

2.  A copy of his Enlisted Record Brief (ERB), dated 14 June 2007, shows in section IV (Personal/Family Data) that he had a P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric (PULHES) rating of "111111" and his physical category was listed as "A."  The last physical examination as recorded on this form shows it occurred on 8 August 2005. 

3.  A copy of a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), for the period ending 31 January 2008, shows in Part IV (Values/NCO Responsibilities), item c (Physical Fitness and Military Bearing), he was issued a medical profile on 20 November 2007.  The rater entered "ability to perform assigned duties was not hindered" and gave him a rating of "needs some improvement."

4.  There is no additional information or medical records contained in the available records.

5.  The applicant provides a copy of his DD Form 214.  This document shows he was honorably released from active duty on 29 March 2008 and transferred to the U.S. Army Reserve Control Group (Reinforcement), St. Louis, MO.  Item 25 (Separation Authority) shows he was separated under the provisions of chapter 4, Army Regulation 635-200 (Enlisted Personnel Separations), by reason of completion of required service.  He served a total of 7 years, 6 months, and 
23 days of net active service.  He was assigned an SPD code of "MBK" and a reentry (RE) code of "1."

6.  On 25 July 2008, the VA Regional Office, Montgomery, Alabama, issued a rating decision on the applicant.  The VA found the applicant was seen on 
24 August 2007 for trouble sleeping due to holding his breath during his sleep.  On 21 September 2007, he reported complaints of snoring and excessive daytime somnolence.  On 5 October 2007, he underwent a sleep study at Walter Reed Army Medical Center and the study revealed severe obstructive sleep apnea.   A Continuous Airway Pressure (CPAP) was prescribed on 13 December 2007.   The VA determined the condition was service-connected and assigned a 50 percent disability rating.  The remainder of the applicant's claim shows the following:

* Left shoulder degenerative joint disease – service connected – 0 percent
* Hypertension - service connected – 0 percent
* Bilateral ankle pain – not service connected - denied
* Pes Planus – not service connected – denied
* Shin Splints – not service connected – denied

7.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual 
and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES).  In pertinent part, numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  This regulation includes a list of Armed Forces reentry codes.  In pertinent part, RE Code 1 applies to persons completing their term of service and who are considered fully qualified to reenter the Army.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states, in pertinent part, that the SPD code of "MBK" applies to persons who are voluntarily separated under the provisions of chapter 4, Army Regulation 635-200.  

10.  Army Regulation 635-40 (Army Physical Disability Evaluation System (PDES)) establishes and sets forth the 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.  It states, in pertinent part, that after establishing the fact that a Solider is unfit because of a physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting disability.  The VA Schedule for Rating Disabilities is used to establish this rating.  

11.  Army Regulation 635-40 states that 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.  When a Soldier is being processed for separation 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, is an indication that the applicant is fit.

12.  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.  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 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.  The VA, however, is not required by law to determine medical unfitness for further military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he was medically retired by reason of permanent disability was carefully considered; however, it is not supported by the evidence of record.

2.  A copy of an NCOER reveals that the applicant was issued a medical profile as of 20 November 2007.  The type of profile issued is not available for review; however, the rater made an indication that the applicant's profile did not hinder his ability to perform his military duties.  

3.  The applicant's DD Form 214 shows he voluntarily separated and was given an RE code of "1," indicating he was fully qualified to reenter the military.  There is no indication he was considered unfit for continued service.

4.  The applicant provided a copy of his VA Rating Decision, dated 25 July 2008, which shows he was awarded a combined rating of 50 percent for his service-connected disabilities.

5.  In accordance with governing laws, the VA is the Department responsible for compensating veterans when service-related conditions cause social or industrial impairment after a Soldier's discharge.   Any rating action by the VA does not necessarily demonstrate error or injustice on the part of the Army.  The Army must find a member physically unfit before he can be medically retired or separated.  A thorough review of the available records failed to reveal, that the Army, in its discretion, found the applicant medically unfit for duty.

6.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.  In view of the foregoing, the applicant is not entitled to 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)                                         AR20100010466





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ABCMR Record of Proceedings (cont)                                         AR20100010466



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