IN THE CASE OF:
BOARD DATE: 31 November 2010
DOCKET NUMBER: AR20100014837
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 he was medically retired instead of honorably released from active duty.
2. The applicant states the Department of Veterans Affairs (VA) rated him at
60 percent (%) disabled for post-traumatic stress disorder (PTSD).
3. The applicant provides:
* his DD Form 214
* his VA rating decision, dated 17 May 2007
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 applicants 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 applicants failure to
timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's records show he enlisted in the Regular Army on 18 January 2001 for a period of 4 years. He completed basic combat and advanced individual training and he was awarded military occupational specialty 11C (Indirect Fire Infantryman). He was assigned to the 2nd Battalion, 75th Ranger Regiment, Fort Lewis, WA.
3. His records also show he served in Afghanistan and Iraq in support of Operations Enduring and Iraqi Freedom during the periods:
* 1 December 2002 - 12 February 2003
* 1 March 2002 - 20 July 2003
* 1 November 2003 - 15 December 2003
* 6 July 2004 - 15 October 2004
4. The applicant's noncommissioned officer evaluation report (NCOER) for the period January 2004 through December 2004 shows he was rated as either "excellent" or "success" in all five rating areas. Comments included, "flawlessly performed duties as a mortar squad leader during combat operations in Afghanistan" and "one of the platoon's best team leaders
."
5. He was honorably released from active duty on 17 January 2005 by reason of completion of his required active service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.
6. His service medical records are not available for review with this case. Additionally, there is no indication in his available records that he suffered from an injury, illness, or any medical condition that would have warranted his entry into the Army's physical disability evaluation system (PDES).
7. He submitted a copy of his VA rating decision that shows the VA awarded him service-connected disability compensation for PTSD.
8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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. It provides for medical evaluation boards (MEBs), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. 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 MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).
9. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities (VASRD).
10. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20% of service and a disability rating at less than 30%.
11. 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 a higher VA rating does not establish error or injustice in the Army rating. 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. 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 entered active duty on 18 January 2001. He was honorably released from active duty upon completion of his enlistment commitment on 17 January 2005.
2. There is no evidence he was diagnosed with PTSD or any medical condition while he was on active duty. It is possible he has developed PTSD or his condition may have worsened since he was separated; however, the Armys PDES is dependent on the existence and severity of a condition at the time of separation. His last NCOER shows he was fully capable of performing his duties up through his separation date. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.
3. There is no evidence in the available records and he did not provide any evidence that shows he was diagnosed with a medical condition that would have warranted his entry into the PDES. Therefore, he never underwent an MEB. Without an MEB, there would have been no basis for referring him to a PEB. Without a PEB, he could not have been issued a medical discharge or separated/retired for physical disability.
4. An award of a rating by another agency does not establish error by the Army. Operating under different laws and their 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. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. Therefore, he 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) AR20100014837
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