IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100015380 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 April 2002, be corrected to reflect in block 28 (Narrative Reason for Separation) “Disability.”

2.  The applicant states her DD Form 214 reflects that she was released from active duty (REFRAD) for a physical condition – not a disability; however, the Department of Veterans Affairs (VA) has subsequently determined that her condition is a service-connected disability.

3.  The applicant provides a copy of her DD Form 214 and her VA Rating Decision.

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 enlisted in the California Army National Guard (CAARNG) on 16 December 2000 for a period of 8 years, training as a military policeman, and an $8,000 enlistment bonus.  She was advanced to the pay grade of E-3 on 15 February 2001.

3.  On 1 October 2001, she was ordered to active duty in support of Operation Noble Eagle at Fort Lewis, Washington.

4.  The facts and circumstances surrounding her release from active duty (REFRAD) are not present in the available records.  However, her DD Form 214 shows she was honorably REFRAD on 26 April 2002 under the provisions of Army Regulation 635-200, paragraph 5-17 due to a physical condition, not a disability.  She had served 6 months and 26 days of active service and she was returned to her CAARNG unit.

5.  Army Regulation 635-200 serves as the authority for enlisted separations.  Paragraph 5-17 (Other Designated Physical or Mental Conditions) provides that commanders may approve separation for other designated physical or mental conditions not amounting to disability (Army Regulation 635-40) and excluding conditions appropriate for separation processing under paragraphs 5-11 or 5-13 that potentially interfere with assignment to or performance of duty.

6.  The applicant's VA Rating Decision shows she was given a disability compensation rating of 10% for major depressive disorder and post-traumatic stress disorder (PTSD) and her combined rating was subsequently raised to 30%, effective 19 March 2009.

7.  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.

8.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant's REFRAD was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.

3.  The applicant’s contentions have been noted; however, her DD Form 214 appears to correctly reflect that she was REFRAD due to a physical condition that was not a disability and she has failed to show through the evidence submitted with her application and the evidence of record that she was not properly REFRAD in 2002 or that the reasons for her REFRAD were incorrect at the time. 

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish that the applicant was not properly REFRAD or that the reason for her REFRAD was incorrect at the time it occurred. 

5.  In view of the foregoing, there is an insufficient 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)                                         AR20100015380



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ABCMR Record of Proceedings (cont)                                         AR20100015380



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