IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100013207 


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 that item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to show he received a medical discharge.

2.  The applicant states that the entry "LBK" in item 26 (Separation Code) is incorrect.  He contends he had not reached the end of his term of service.  He was evaluated by the Oregon State Office of the Surgeon General and was determined to be unfit for service and received a medical discharge from the Oregon Army National Guard (ORARNG).

3.  The applicant provides copies of the following:

* two separate DA Forms 4186 (Medical Recommendation for Flying Duty)
* a DA Form 3349 (Physical Profile)
* excerpts of his medical records
* an email transmission
* a line of duty (LOD) determination memorandum
* an ORARNG Military Occupational Specialty (MOS) Medical Review Board (MMRB)/Physical Profiling Board's Referral to the Army Physical Disability Evaluation System (PDES), dated 12 April 2008
* a DD Form 214 worksheet
* a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)

CONSIDERATION OF EVIDENCE:

1.  A copy of the applicant's DD Form 214 for the period ending 14 December 2006 shows he was ordered to active duty in support of Operation Enduring Freedom on 17 July 2005.  He served in the rank of chief warrant officer two as a Utility Helicopter-60 Pilot.

2.  A copy of the LOD determination memorandum shows he sustained a left shoulder injury on or about 19 August 2005 which was determined to be in the line of duty.

3.  His DA Form 4186 shows he was temporarily suspended from flying duties on 3 July 2007.  This form also indicates he understood that he may not perform any aviation duties as of the date of the determination.  A second DA Form 4186, dated 16 August 2007, shows he was suspended from performing any aviation duties for an additional 30 days.

4.  A copy of his DA Form 3349 shows he was issued a permanent physical profile in 2006.  The month and day of this form are not legible.  Item 3 (Temporary/Permanent PULHES) shows a P-physical capacity or stamina, 
U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and 
S-psychiatric rating of "122113."

5.  His records contain an NGB Form 25 (Army National Guard Officer Evaluation Report Non-Rated Period) which shows he had non-rated time for time spent in a medical holding (MEDHOLD) company and a community-based health care organization (CBHCO) during the period 6 March 2006 through 14 December 2006.

6.  The applicant provides a copy of an approval memorandum for early release from active duty (REFRAD), dated 30 November 2006.  The memorandum directed the release of the applicant from active duty no later than 14 December 2006.

7.  Accordingly, the applicant's military service records contain a copy of a DD Form 214 for the period ending 14 December 2006.  This document shows in pertinent part that the applicant was REFRAD and transferred to the 1042nd Medical Company (Air Ambulance Forward), Salem, OR.  He completed 1 year, 4 months, and 27 days of active service during this period.  Item 25 (Separation Authority) shows the entry "Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-25a (request for early release)."  Item 28 contains the entry "completion of required active service."  Item 26 shows "LBK."

8.  The applicant provides a copy of an ORARNG medical review board memorandum which shows the board determined he was not medically qualified for retention in the military.  As a result, the board indicated its intent to process his case through the Army PDES for further processing.  The applicant was given the opportunity to waive his right to the PDES since he had already applied for VA benefits for the same injury.  He was given a suspense date of 30 April 2008 to furnish his reply.

9.  The applicant's records are void of any evidence which indicates he elected to have his case to be reviewed by the PDES.  His records are also absent of evidence which shows a report of any medical evaluation board (MEB) or physical evaluation board (PEB) proceedings.

10.  The applicant provides a copy of an NGB Form 22 with an effective date of 4 August 2008.  This document shows the applicant completed 8 years, 7 months, and 28 days of service.  He was honorably discharged from the ORARNG under the provisions of National Guard Regulation 635-100 (Medical, Physical, or Mental Condition).

11.  The applicant provides a copy of a VA Form 21-4138 which shows he applied for VA benefits for his left shoulder injury on 25 August 2008.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states that after establishing the fact that a Solider is unfit because of a physical disability and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting disability.  The VA Schedule for Rating Disabilities is used to establish this rating.

13.  Chapter 8 of the same regulation contains the rules and policies for disability processing of Reserve Component Soldiers.  It states that a Reserve Component Soldier will be referred for medical processing through the PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of a physical disability.  It also specifies that this fitness determination is different from an LOD determination, which establishes only whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a casual relationship between the disability and the required military duty.

14.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  An Army disability rating is intended to compensate an individual for the interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individual's civilian employability.  The VA, however, is not required by law to determine medical unfitness for further military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for discharge on his DD Form 214 should be changed to show he received a medical discharge.

2.  The evidence of record shows the applicant was ordered to active duty in support of Operation Enduring Freedom on 17 July 2005.  During his mobilization period, he sustained an injury to his left shoulder.  He was then placed on a temporary medical suspension from flying status and was issued a permanent physical profile in 2006.

3.  He provided a copy of an LOD determination memorandum, dated 20 March 2006, which shows his shoulder injury was in the line of duty.  His records show that during the period 6 March 2006 through 14 December 2006 he was assigned to a MEDHOLD company and to a CBHCO.  A request for early REFRAD and was transferred to his unit in Salem, OR, on 13 December 2006.

4.  The applicant's records are absent evidence and he has not provided sufficient evidence to show an MEB and/or a PEB convened which found him to be medically unfit while he was on active duty.  There is no evidence of record that indicates he was unable to perform his military duties while on active duty.  It appears when he was released from active duty he was medically fit to perform his duties.

5.  In April 2008, the ORARNG found he was not medically fit for retention in the ARNG.  A copy of his ORARNG MMRB memorandum, dated 12 April 2008, shows that because he applied for VA benefits, he was given the opportunity to waive his right to a PDES board.  His records are void of any evidence and he has not provided sufficient evidence which shows his decision.  However, he did provide this Board with a copy of his request for VA benefits, dated 25 August 2008.  It is reasonable to presume he waived his right to have his case processed through the PDES due to his submission for VA benefits.
6.  His NGB Form 22 shows he was honorably discharged from the ORARNG on 4 August 2008 under the provisions of National Guard Regulation 635-100.

7.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.  In view of the foregoing, the applicant is not entitled to the requested relief.

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)                                         AR20100013207



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ABCMR Record of Proceedings (cont)                                         AR20100013207



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