IN THE CASE OF:	  

		BOARD DATE:	    7 October 2010

		DOCKET NUMBER:  AR20100011500 


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 earlier request to correct his military records to show he was discharged due to a physical disability.

2.  The applicant states he was recommended for discharge due to other designated physical or mental conditions which impaired his ability to effectively perform his duties.

3.  The applicant provides, in support of his request for reconsideration, copies of undated and unsigned memoranda indicating he was considered for separation under the provisions of Army Regulation 635-200, paragraph 5-17 for other designated physical or mental conditions.  He also provides copies of medical documents. 

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 AR20090013372, on 2 February 2010.

2.  The memoranda and medical documents provided by the applicant are new evidence that requires consideration by the Board:

	a.  The applicant has provided an unsigned and undated memorandum from the company commander notifying the applicant of his intent to separate him from the service due to other designated physical or mental conditions.  The memorandum indicates the applicant was to acknowledge receipt by signing and dating it which he did not.

	b.  The applicant provided an unsigned and undated memorandum from the company commander to the battalion commander recommending that the applicant be separated due to other designated physical or mental conditions.

	c.  The medical documents from the Clark Health clinic indicate the applicant suffered from muscle spasms to his upper/mid back.  There is no evidence that he was referred to a medical board.

3.  The applicant's separation packet is not available.  He was honorably discharged on 15 April 2005 by reason of physical condition not a disability after completing 1 year, 1 month, and 14 days of creditable active service.

4.  The original Board proceedings stated the applicant contended he had been discharged because of his back.  However, no evidence was available to support this contention.  The Department of Veterans Affairs (VA) subsequently granted him a 10 percent disability rating for degenerative joint disease.

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-18 sets the policy and prescribes procedures for separating members on the basis of other physical or mental conditions not amounting to a disability that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to, chronic airsickness or seasickness, sleepwalking, claustrophobia, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.

6.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.



7.  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.  The applicant contends that his military records should be corrected to show he was discharged due to a physical disability.  He also contends he was recommended for discharge due to other designated physical or mental conditions which impaired his ability to effectively perform his duties.

2.  The medical evidence provided by the applicant fails to show that he was evaluated by a medical board and found unfit for military service.

3.  The memoranda provided by the applicant appear to have never been processed by his chain of command, and may have been no more than working documents initiated by the command as a possible option in their decision-making process concerning the applicant's separation.

4.  In view of the above, the applicant's request should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090013372, dated 2 February 2010.



      __________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)                                         AR20100011500



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ABCMR Record of Proceedings (cont)                                         AR20100011500



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