BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100010839 


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 the narrative reason for his separation be changed to show he was separated with a service-connected disability.

2.  The applicant states that after his discharge he was found to have several service-connected disabilities and he is rated as 50 percent (%) disabled at this time. He is using the post 9/11 GI Bill which currently pays 80% of his tuition.  He contends that upon his DD Form 214 (Certificate of Release or Discharge from Active Duty) reflecting he was discharged with a service-connected disability, which has been proven, he will receive the applicable and proper 100% of his tuition covered.  The Department of Veterans Affairs (DVA) will not pay him the correct amount without the update of his DD Form 214.

3.  The applicant provides a DVA letter, dated 12 January 2010; DVA Rating Decision, dated 30 November 2009; and a DVA Rating Decision, dated
14 August 2008.

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 enlisted in the U.S. Army Reserve (USAR) on 27 September 1999.  He was subsequently ordered to active duty on 4 June 2002 in support of Operation Desert Spring.  He held military occupational specialty 67R (AH-64 Attack Helicopter Repairer).

3.  On 1 February 2003, he was honorably released from active duty.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "COMPLETION OF REQUIRED ACTIVE SERVICE."

4.  Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, Orders 07-016-0002, dated 16 January 2007, directed his discharge from the USAR.  These orders indicate that his enlistment in the USAR was terminated effective on the date of the orders as a result of his immediate enlistment in the Texas Air National Guard (TXARNG).

5.  The applicant provided two DVA Rating Decisions and letter which indicate he currently has a 50% disability rating percentage from the DVA and he is receiving service-connected disability compensation.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It 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 or retirement indicates that a Soldier is fit.

7.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his narrative reason for separation should be changed to show he was separated with a service-connected disability has been carefully reviewed.

2.  The rating decisions by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at that time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

3.  The applicant was released from active duty after completing his required active service and from the USAR as a result of his immediate enlistment in the TXARNG, neither by reason of physical disability.  There is no evidence which shows he was unfit to perform his military duties upon his separation.  Therefore, there is no error or injustice that exists in this case and 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)                                         AR20100010839



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ABCMR Record of Proceedings (cont)                                         AR20100010839



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