BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100011376 


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 reconsideration of his previous request to have his discharge voided and to be medically retired.

2.  The applicant states that he disagrees with the Board’s 14 April 2009 decision in his case (Docket Number AR20080012918) and requests that the Board consider the new evidence submitted with his request.  He also states that while he did pass all of his physical fitness tests, he was in extreme pain, which he endured because as a non-commissioned officer he was a role model and it was his duty to set a positive example.  He also states that he took separation under the Special Separation Benefit (SSB) program because it was his only option at the time.  He further contends that the documents he now submits are the same as he submitted to the medical review board in 1990.

3.  The applicant provides:

* 24 pages of radiological imaging dated in 2009
* A copy of a Department of Veterans Affairs (VA) Rating Decision, dated 16 August 2000
* Copies of statements from his physicians in Germany in both English and German
* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A handwritten letter from a third party requesting reversal of the Board’s decision

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board consider the 61 pages of new evidence submitted by the applicant in reversing the previous decision of the Board.

2.  Counsel states that she is assured that the Board’s final decision will reflect equitable principles consistent in law, regulation, policy, and discretion. 

3.  Counsel provides no additional documents or argument with the application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080012918 on 14 April 2009.

2.  The applicant provides 24 pages of radiological imaging and statements from German physicians which were not previously reviewed by the ABCMR.  They are considered new evidence and as such warrant consideration by the Board.

3.  While the applicant’s records are somewhat incomplete, they show that in May 1990 he underwent a review by a Military Occupational Specialty Medical Review Board (MMRB).  The applicant’s commander previously provided a statement to the effect that the applicant could perform his duties in a deployed status during wartime and in May 1990 he was issued a permanent profile without limitations.

4.  He reenlisted on 9 October 1990 for a period of 3 years and he was promoted to pay grade E-6 on 1 July 1992.  His evaluation reports indicate that he passed his last three Army Physical Fitness Tests and his evaluation reports were essentially maximum reports.

5.  On 15 September 1992, he was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) and the Fiscal Year 1992 Voluntary Early Transition Program.  He elected the SSB option and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He had served 15 years, 1 month, and 28 days of total active service and he was paid $46,084.41 in SSB payments.

6.  During the previous review by the Board the applicant provided the same VA Rating Decision showing that in August 2000 the VA increased his disability rating from 0 percent (%) to a 20% disability rating for recurring attacks of moderate intervertabral disc syndrome, effective 24 September 1997. 

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 may reasonably be expected to perform because of his or her office, rank, grade or rating.  That regulation also provides the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier’s disability ratings.  

8.  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.  The VA, however, is not required by law to determine medical unfitness for further military service.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

9.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.  Individuals who receive a disability rating less than 30% receive severance pay if eligible.  Individuals who receive a disability rating of 30% or greater will be retired by reason of permanent disability.

10.  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 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.  Inasmuch as the applicant’s records show that at the time of his separation under the Voluntary Early Transition Program he was deemed to be fit to perform his duties, it is reasonable to presume that the appropriate authorities determined that he did not require processing under the Physical Disability Evaluation System (PDES).

2.  It is also noted that he elected separation under the SSB, which was a voluntary program.  There is no evidence in the available records to suggest that he was forced to separate under that program or that he had no other choice as he suggest.  He had only 1 year left on his enlistment contract and he was still eligible to undergo separation under the PDES, if warranted.

3.  While it is not disputed that the applicant is receiving disability compensation from the VA, it is noted that the VA did not award him such compensation until well after his separation from active duty, which would indicate that at the time of his separation his condition was not such as to prevent him from performing the duties of his rank and grade.

4.  It is also noted that when the VA did award him disability compensation, it was only at 20%, which would not have resulted in his being retired by reason of physical disability if he had in fact been determined to be unfit for duty at the time.

5.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department.  

6.  In view of the foregoing, 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:

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 to amend the decision of the ABCMR set forth in Docket Number AR20080012918, dated 14 April 2009.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made he made in service to the United States.  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)                                         AR20100011376



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ABCMR Record of Proceedings (cont)                                         AR20100011376



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