IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100014504 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the reason for his discharge was due to physical disability.

2.  The applicant states he has been mentally and physically handicapped since 1986 when a transmission fell on his head while serving on active duty.  He should have been discharged due to his medical condition.

3.  The applicant provides copies of his DD Form 214; doctor and hospital reports, dated in 2009 and 2010; and a Department of Veterans Affairs (VA) letter, dated 28 April 2009.

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 24 May 1984, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 62B (Construction Equipment Repairer).  He was subsequently assigned to Fort Hood, Texas.

3.  On 1 February 1985, the applicant was advanced to private first class/pay grade E-3.

4.  A DA Form 4126 (Bar to Reenlistment Certificate), dated 5 November 1986, recommended that the applicant be denied reenlistment in the U.S. Army.  This recommendation was based on the following:

	a.  disposition form from Social Work Service related to a case of family violence, dated 4 April 1986.

	b.  letter of reprimand for domestic assault, dated 28 April 1986;

	c.  letter from the hospital for failure to attend therapy, dated 25 June 1986;

	d.  six counseling statements for missing formation during June-October 1986;

	e.  nonjudicial punishment, dated 15 August 1986, for missing formation; and

	f.  letter of indebtedness from telephone company, dated 16 October 1986.

5.  The applicant elected not to submit a statement in his own behalf.

6.  On 1 December 1986, the appropriate authority approved the bar.  There is no available evidence of record showing the bar to reenlistment was ever reviewed or voided.

7.  The applicant's service medical records are not available for review.  A Standard Form 88 (Report of Medical Examination), dated 19 February 1988, noted the applicant had knee pain.  He was found to be qualified for separation with a non-limiting physical profile.

8.  On 24 March 1988, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He had attained the rank of specialist four/pay grade E-4 and had completed 3 years, 10 months, and 1 day of creditable active duty service.

9.  Item 25 (Separation Authority) and item 28 (Narrative Reason for Separation) of the applicant's DD Form 214 states he was separated due to a reduction in authorized strength under the provisions of paragraph 16-8, Army Regulation 635-200 (Personnel Separations).

10.  A VA letter, dated 28 April 2009, provided by the applicant indicates he has been awarded a 70-percent service-connected disability.

11.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 16-8 sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints.  The service of personnel separated under this paragraph will be characterized as honorable.

12.  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 or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

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 that his DD Form 214 should be corrected to show he was separated due to physical disability.

2.  There is no documentary evidence showing the applicant was injured while on active duty, or that any such injury was found to be in the line of duty, or that it resulted in the applicant becoming physically disabled.

3.  The applicant's service medical records are not available for review.  However, his report of medical examination for separation reported that he was fully qualified for separation and did not identify any adverse medical conditions other than knee pain.
4.  The applicant served on active duty for more than 3 years.  His DD Form 214 indicates he was released from active duty due to a reduction in authorized strength.  There is no available evidence showing he incurred any medical conditions while entitled to basic pay which were 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.

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 and/or social functioning.  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 he or she can be medically retired or separated.

6.  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 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)                                         AR20100014504



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ABCMR Record of Proceedings (cont)                                         AR20100014504



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