IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100012393 


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 show the narrative reason for separation as "medical."

2.  The applicant states he was injured in 1987 while on a night movement at Fort Hood, Texas.  He was loading tents when his squad leader told him to run down the hill and help with the loading of another truck.  When he got to the bottom of the hill a van door opened and hit his nose.  The force of the door broke his nose and tilted his brain.  He has been suffering from severe headaches and obstructive sleep apnea.  In 2001 he had a tracheostomy and was granted a 100 percent service connection by the Department of Veterans Affairs (VA).  He also suffers from hypertension with a 10 percent disability rating.  At the time of release from active duty (REFRAD) in 1989, he requested to be medically evaluated for his deviated septum, but was told to go to the VA.  He did not go to the VA until 1999.  He believes he should have been rated in 1989 with the issues he suffers with today.

3.  The applicant provides copies of his DD Forms 214, Discharge Certificate from the U.S. Army Reserve (USAR), and VA rating decisions dated 19 June and 
18 September 2001.



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.  On 30 July 1985, the applicant, a prior service USAR) Soldier, enlisted in the Regular Army.  He completed advanced individual training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).

3.  A Standard Form 600 (Chronological Record of Medical Care) from the applicant's service medical records:

	a.  dated 20 October 1986 shows he reinjured his nose while in the field and received medical treatment diverting his nasal septum to the right; and

	b.  dated 18 August 1987 shows he received rhinoplasty stage I.

4.  An Optional Form 275 (Medical Record Report), dated 13 June 1988, shows the applicant underwent rhinoplasty surgery.

5.  On 29 July 1989, the applicant was REFRAD due to the expiration term of service (ETS).  He had attained the rank of specialist, pay grade E-4, and he had completed 4 years of creditable active service this period.

6.  On 17 October 1989, the applicant enlisted in the USAR.  He served on active duty from 7 January 1991 to 15 July 1992 in support of Operations Desert Shield and Desert Storm.  During this period of USAR service he attained the rank of staff sergeant, pay grade E-6.

7.  On 17 June 1993, the applicant enlisted in the Iowa Army National Guard (ARNG).  He was separated from the Iowa ARNG effective 9 November 1994 due to unsatisfactory participation.

8.  Effective 30 March 1999, the applicant was honorably discharged from the USAR.

9.  The VA rating decision, dated 19 June 2001, shows the applicant was granted a combined service connected disability rating of 60 percent effective 6 March 2000 for obstructive sleep apnea, deviated septum, and hypertension.

10.  The VA rating decision, dated 18 September 2001, increased his disability rating for obstructive sleep apnea from 50 percent to 100 percent, and raised the combined service connected disability rating to 100 percent effective 24 July 2001.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.  It further provides in Title 10, U.S. Code, section 1201, for the physical disability retirement of a member who has an impairment rated at least 
30-percent disabling.

13.  Title 38, U.S. Code, sections 310 and 331, permit 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 physically 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 his DD Form 214 should be corrected to show his narrative reason for separation was "medical" reasons.

2.  There is no available evidence showing the applicant had any medical condition, incurred while entitled to receive basic pay, which was so severe as to render him medically unfit for retention on active duty.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

3.  The available evidence clearly shows that he was REFRAD due to ETS on
29 July 1989.  He subsequently enlisted in the USAR and the Iowa ARNG, indicating that he was physically fit for duty.

4.  Since the applicant's medical condition was not medically unfitting for retention at the time of his REFRAD in 1989, in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service "service-connected" and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout the veteran's lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before the service member can be medically retired or separated.

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:

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)                                         AR20100012393



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ABCMR Record of Proceedings (cont)                                         AR20100012393



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