IN THE CASE OF:	  

		BOARD DATE:	    4 November 2010

		DOCKET NUMBER:  AR20100010631 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect he was retired by reason of physical disability rather than discharged by reason of physical disability.

2.  The applicant states he desires his records to reflect that he was retired by reason of physical disability rather than being discharged so that he can receive Combat Related Special Compensation (CRSC).

3.  The applicant provides:

* A copy of a letter from the Human Resources Command CRSC Branch
* A copy of his DD Form 2860 (Claim for CRSC)
* Copies of his Department of Veterans Affairs (VA) claims decisions
* Copies of his DD Form 214, line of duty determination, disenrollment from the Primary Leadership Development Course, and various orders
* Two copies of his National Guard Bureau (NGB) Form 23B (Army National Guard Retirement Points History Statement) prepared on
2 October 2009 [one with handwritten annotations]

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 was serving in pay grade E-5 in the Oregon Army National Guard (ORARNG) as a petroleum supply specialist on 11 February 2003 when he was ordered to active duty in support of Operation Enduring Freedom.

3.  On 21 October 2004 he was honorably discharged by reason of disability with severance pay with a 20 percent (%) disability rating percentage.  He had served 1 year, 8 months, and 11 days of active service during his mobilization and he was paid $47,358.00 in severance pay benefits.  His NGB Form 23B reflects he has 14 qualifying years of service for retired pay purposes.

4.  The Physical Disability Evaluation System (PDES) proceedings are not present in the available records.

5.  On 27 June 2008, the VA granted the applicant a combined disability rating of 100%.

6.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a 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 military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affects the individual's employability.

7.  Title 10, U.S Code, section 1413a, CRSC provides, in pertinent part, that eligible members are those retirees who have 20 years of service for retired pay computation and who have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or cause by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disabling.  For periods before 1 January 2004, members had to have disabilities for which they were awarded the Purple Heart and are rated at least 10% disabled or who are rated at least 60% disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or cause by an instrumentality of war.

8.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the physical evaluation board (PEB) hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his records should be changed to reflect that he was retired instead of being discharged so that he can qualify for CRSC has been noted and found to lack merit.

2.  The applicant's PDES proceedings are not available, and in the absence of evidence to the contrary it must be presumed that the applicant was properly evaluated under the PDES and assigned the appropriate disability percentage based on that evaluation.

3.  Accordingly, the applicant has failed to show through the evidence submitted with his application and the evidence of record any error or injustice associated with his disability processing or discharge.  Therefore, there appears to be no basis to grant his request.

4.  The ABCMR does not grant requests for change of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20100010631



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ABCMR Record of Proceedings (cont)                                         AR20100010631



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