IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100014477 


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 his 2005 release from active duty be changed to physical disability retirement.

2.  The applicant states, "I knew I had medical issues that would prevent me from leading as an officer should, so I resigned my commission not knowing about the [medical evaluation board (MEB)/physical evaluation board (PEB)] process."  He reports that as of April 2010 he was rated as 90-percent disabled by the Department of Veterans Affairs (VA).

3.  The applicant provides copies of many service record documents and VA medical records and disability rating documents.

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 was an enlisted Marine from August 1989 to August 1994.  He joined the Army National Guard in November 2001 and was commissioned as a second lieutenant on 27 September 2002.  He served on active duty from July 2004 to December 2005 when he was separated upon completion of required active service.

3.  While on active duty, his unit deployed to Iraq where the applicant was awarded the Combat Action Badge on 21 August 2005 and the Bronze Star Medal for meritorious service in Iraq from 1 January 2005 to 15 October 2005.

4.  His officer evaluation report for the preparation and deployment periods praised his initiative and abilities.  It made no mention of any medical problems or physical disabilities.

5.  On 12 December 2005, he was released from active duty to the New Jersey Army National Guard upon completion of required active service.

6.  He was separated from the Army National Guard with an honorable discharge on 6 April 2006 under the provisions of National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a(3).

7.  National Guard Regulation 635-100 provides for the termination of officer appointments and Federal recognition for all reasons, voluntary and involuntary.  Paragraph 5a(3) applies to resignations.

8.  There is no available service medical or personnel document showing the applicant was physically incapable of performing his duties at any time.

9.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

10.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his 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.

12.  Title 38, U.S. Code, sections 310 and 331, 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.

13.  VA disability rating documents show that in August 2007 the applicant was rated at 10-percent disabled for each of a low back condition, right knee injury, and a fractured ankle injury.  His VA disability ratings continued to increase over time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant reports he knew he had medical issues that would prevent him from leading as an officer should, so he resigned his commission not knowing about the MEB/PEB process.  He was rated as 90-percent disabled by the VA as of April 2010.

2.  There is no substantiating evidence that applicant was physically incapable of performing his duties.

3.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

4.  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.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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 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)                                         AR20100014477



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ABCMR Record of Proceedings (cont)                                         AR20100014477



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