IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100011455 


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 her narrative reason for discharge be changed from parenthood to a medical retirement.  

2.  The applicant states the narrative reason for discharge should be changed based on the fact she received a 60 percent disability rating after she was discharged.  Her medical history was overlooked before her discharge because of the rush to complete her paperwork before the Christmas holiday.  She is now rated at 90 percent through the Department of Veterans Affairs (VA).  

3.  The applicant provides no additional documents in support of her 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 enlisted in the Regular Army on 3 June 1997.  

3.  The applicant’s service record does not include her medical documents.  

4.  She received noncommissioned officer evaluation reports (NCOER) covering the following periods:

   a.  April 2000 through December 2000: Issue Section noncommissioned officer (NCOIC), scored 295 on Army Physical Fitness Test (APFT); rated as “Fully Capable,” “Successful-2,” “Superior-1”;
   
   b.  January 2001 through June 2001: Materiel Control Accounting NCO; scored 295 on APFT; rated as “Among the Best,” “Successful-1,” “Superior-1”;
   
   c.  July 2001 through June 2002: Materiel Control Accounting NCO; scored 300 on APFT; rated as “Among the Best,” “Successful-1,” “Superior-2”; and
   
   d.  July 2002 through December 2002: Administration Clerk; scored 300 on APFT; rated as “Among the Best,” Successful-1,” “Superior-1.”

5.  She was discharged on 20 December 2002 under the provisions of Army Regulation 635-200, paragraph 5-8 by reason of parenthood.  She completed 5 years, 6 months, and 18 days of active military service.  

6.  Item 25 (Separation Authority) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry, "AR 635-200, PARA 
5-8."  

7.  Item 26 (Separation Code) shows the separation program designator code of "JDG" for parenthood.

8.  The applicant’s VA rating is not available.  

9.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of this office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

10.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

11.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it states that item 28 will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

14.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of medical evidence to the contrary, it is presumed that the applicant's continued performance of duty raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury related to her separation.

2.  Even though the applicant states she has received a 90 percent disability rating by the VA, the award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

3.  The applicant’s service record does not confirm she had any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

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)                                         AR20100011455





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ABCMR Record of Proceedings (cont)                                         AR20100011455



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