IN THE CASE OF:	  

		BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100014029


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 record to show he was medically retired from the Army with a 60 percent (%) disability rating percentage.

2.  The applicant states:

	a.  the Army Human Resources Command (AHRC), Surgeon General's Office (SGO) personnel did not receive the paperwork he forwarded to them;

	b.  he now submits a physical and all of the required paperwork requested from the AHRC, SGO to this Board; and

	c.  he asks why is the Army refusing to medically discharge him and preventing him from receiving benefits given he is rated 60% disabling.

3.  The applicant provides:

* an AHRC letter, dated 3 April 2007
* an AHRC Form 4123 (Medical Information Checklist)
* a DD Form 2808 (Report of Medical Examination)
* a DD Form 2807-1 (Report of Medical History)
* a Standard Form (SF) 507 (Clinical Record)
* a Sinus Rhythm Report
* a DA Form 2173 (Statement of Medical Examination and Duty Status)
* 3 pages of SF 600 - Automated Version (Patient Needs and Health Assessment)
* 2 pages of SF 600 (Chronological Record of Medical Care)
* 3 pages of a Department of Veterans Affairs (VA) Rating Decision
* an AHRC letter, dated 11 March 2008
* his discharge orders, dated 17 July 2009

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 3 January 1984.  He was trained in, awarded, and served in military occupational specialties (MOS) 92A (Automated Logistical Specialist) and 16P (Chaparral Crewmember).

2.  He was discharged on 29 February 1996, having completed 12 years,
1 month, and 27 days of creditable active service.  He immediately enlisted in the USAR Control Group (Reinforcement).

3.  On 21 January 2003, the applicant was ordered to active duty in support of Operation Enduring Freedom (OEF).

4.  A DA Form 2173 shows he was medically examined following an injury that resulted from lifting and transporting supplies within the theater of Kuwait in July 2003.  It also shows he developed cervical strain and bursitis in his left shoulder which was determined to have been in the line of duty.

5.  The four SF 600, dated between 20 March and 8 September 2004, show the applicant:

* had lymphomas on his left shoulder and forearm and a mass on his left wrist
* had tumors, eye problems, bilateral knee pain, and anterior left knee joint pain
* was informed to follow-up as needed at TRICARE or with his own private physician

6.  A DD Form 2807-1 prepared on the applicant on 7 March 2006 shows he was medically evacuated from Kuwait to Fort Lewis, WA to remove cysts and tumors from his left shoulder, forearm, and wrist.  It also shows he was treated for cervical strain.

7.  On or about 3 March 2007, the applicant underwent a retention physical examination which shows:

   a.  a recommendation was made for ophthalmology, orthopedic, dermatology, and psychology consultations;

   b.  the applicant was physically fit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness);

   c.  a command surgeon review of the physical examination or appropriate action was required;

	d.  the applicant's blood pressure and anemia-related conditions and one or more additional abnormal findings resulted in his referral to a medical provider outside of the military system for follow-up at his own expense;

   e.  the applicant was required to provide for the military health record any document from a civilian medical provider pertaining to the follow-up.

8.  A DA Form 3349 (Physical Profile), dated 10 April 2006, was prepared on the applicant for:

* decreased visual acuity
* degenerative joint disease (DJD) bilateral knees
* degenerative disc disease (DDD) cervical spine C5-6
* left shoulder DJD

9.  On 3 April 2007, the Assistant to the Command Surgeon, AHRC notified the applicant that a review of his physical exam revealed one or more medical condition(s) that may disqualify him for retention in the USAR.  He was provided a checklist and advised of his requirement to provide the information identified on that checklist to determine the severity of his conditions and any duty limitations no later than 11 May 2007.

10.  The applicant's AHRC Integrated Web Service (IWS) database record shows he received an additional suspense date on 1 September, 30 November, and 30 December 2007, to provide the requested medical documents to the Command Surgeon Office.  As a result the surgeon was unable make a determination on the applicant's case based on the lack of the requested current medical information.

11.  On 11 March 2008, the Chief, Medical Support Division, AHRC, informed the applicant of his failure to comply to provide the requested documentation for determination of his physical fitness.  Accordingly, the "B" (temporary disqualification code) was placed in his medical file and his case was forwarded to the 88th Regional Readiness Command Surgeon's Office for their disposition.

12.  The applicant provides a VA rating decision which shows he was granted service-connection and rated 60% disabling.  It also shows he received $23,938.05 in severance pay from the military; however, there is no evidence of record to confirm this information.

13.  On 17 July 2009, Orders 09-198-00008, issued by Headquarters,
11th Aviation Command, Fort Knox, KY, directed the applicant’s honorable discharge from the USAR under the authority of Army Regulation 135-178 (Enlisted Administrative Separations), effective 1 August 2009.  

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth 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.  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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the medical evaluation board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB):

	a.  Paragraph 8-2 states Soldiers of the Reserve Component (RC) are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.  

	b.  Paragraph 8-6 states when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation.

	c.  Paragraph 8-9 states a Soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability 

was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc.

15.  Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Paragraph 3-3 provides USAR or Army National Guard Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10.

16.  Army Regulation 40-501, paragraph 9-3, states it is the responsibility of RC Soldiers to maintain their medical and dental fitness.  They are responsible for seeking medical advice and treatment quickly when they believe their physical wellbeing is in question and must report to their unit commander, any change in their health status that impacts on their readiness status.  Paragraph 9-10 states normally, Reservist who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve or discharged from the USAR per Army Regulation 135-178.  Reservist with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for determination of fitness.  All RC Soldiers are responsible for providing the unit commander all medical documentation, including civilian health records, and completing the annual physical health assessment.

17.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of any VA rating does not establish error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention he should have been medically retired from the USAR and assigned a 60% disability rating has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, in order to qualify for medical retirement, an RC Soldier must have suffered a medically disabling condition while in a qualifying duty status.  

3.  The evidence of record confirms the applicant was informed he had medical conditions that could possibly disqualify him for retention in the USAR.  Having been given sufficient time to provide additional medical evidence to determine the severity of his medical conditions and any associated limitations from 3 April to 31 December 2007, he continued to fail to submit the required documentation. Accordingly, the Chief Medical Support Division, AHRC notified the applicant that a determination of his physical fitness could not be made for medical retention; his medical record was coded accordingly; and he was subsequently discharged from the USAR.

4.  Further, it appears he now believes he should have received a medical retirement because the VA granted him service-connected disability compensation with a 60% disability rating percentage.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100014029



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ABCMR Record of Proceedings (cont)                                         AR20100014029



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