BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100016205 


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, that the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 19 May 2008, be changed to a "medical discharge."

2.  The applicant states he was medically unfit for retention and separated from active duty.  However, his DD Form 214 does not show he received a medical discharge; therefore, he is unable to obtain some of the Department of Veterans Affairs (VA) benefits that he should be eligible to receive.

3.  The applicant provides copies of:

* a DA Form 2173 (Statement of Medical Examination and Duty Status)
* his DD Form 214 with a separation date of 19 May 2008
* his DA Form 3947 (Medical Evaluation Board Proceedings)
* a memorandum, dated 22 November 2008, from the U.S. Army Physical Disability Agency, Washington D.C.
* a DA Form 4187 (Personnel Action), dated 16 December 2008
* orders from the Joint Force Headquarters, Alabama National Guard (ALARNG), dated 16 December 2000

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ALARNG on 26 February 2007 for a period 
of 1 year.  He had 3 years, 3 months, and 9 days of previous military service.  He extended his enlistment for 1 year on 4 January 2008.
2.  On 31 January 2008, the applicant entered a period of active duty.  His orders for active duty were not available for review.

3.  A DA Form 2173, dated 14 May 2008, shows the applicant's was examined on 8 April 2008 and he was determined to have chronic, severe degenerative joint disease with a history of an ACL deficient right knee.  The form also shows the injury was considered to have been incurred in line of duty.

4.  On 19 May 2008, the applicant was released from active duty.  Item 25 (Separation Authority) of his DD Form 214 indicates he was on self-terminating orders.  Item 28 (Narrative Reason for Separation) shows "Completion of Period of ADT [active duty training]."

5.  On 20 October 2008, a Medical Evaluation Board (MEBD) referred the applicant to a Physical Evaluation Board (PEB) for:

* Right knee degenerative arthritis (osteoarthritis) right knee
* myofascial pain (medically acceptable)
* right shoulder A-C arthritis (medically acceptable)
* hyperlipidemia (medically acceptable)

6.  On 23 October 2008, the applicant agreed with the findings and recommendation of the MEBD.  

7.  On 3 November 2008, a PEB found the applicant was physically unfit for degenerative arthritis (Osteoarthritis) right knee, which limits his ability to do impact activities.  Imaging studies showed grade IV chondromalacia.  He was rated as limitation of motion of one major joint.  The PEB determined diagnoses 2-4 of the MEBD were not unfitting and not rated.

8.  The PEB recommended that the applicant be granted a combined rating of 
10 percent and separated with severance pay if otherwise qualified.  The PEB also found the applicant's disability was not based on an injury or disease received as a direct result of armed conflict, caused by an instrumentality of war, or incurred during a period of war as defined by law.

9.  On 5 November 2008, the applicant acknowledged he had been advised of the findings and recommendation of the PEB and he had received a full explanation of the results of the findings and recommendation and his legal rights pertaining thereto.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.


10.  U.S. Army Physical Disability Agency (USAPDA) Orders D 327-07, dated 
22 November 2008, discharged the applicant from the Army National Guard and the Reserve of the Army effective 27 December 2008.  His percentage of disability was 10 percent and he was authorized severance pay in the grade of specialist/pay grade E-4 based on 2 years, 1 month, and 10 days of active service.

11.  Army Regulation 635-40, paragraph 3-2b(2), provides that when a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

13.  Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  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 contends the narrative reason for separation on his DD Form 214, dated 19 May 2008, should be changed to show he was medically discharged.

2.  The applicant's orders to active duty are not available for review, and it cannot be determined why he was ordered to ADT or for how long.  His injury occurred on 8 April 2008.  Absent evidence to the contrary, it is presumed he continued his training and was released from active duty by reason of completion of ADT on  19 May 2008.  There is no clear and convincing evidence that he was unable to perform his duties for a period of time or that an acute grave illness or injury or other deterioration of his physical condition occurred immediately prior to or coincident with separation that rendered the member unfit.

3.  According to the entry in item 25 of the applicant's DD Form 214 he was ordered to active duty with "self-terminating orders."  In the absence of evidence to the contrary, it must be presumed the entry in item 28 is correct.

4.  The applicant was not referred to an MEBD until 20 October 2008, 5 months after he was released from active duty.  USAPDA Orders D 327-07 show he was discharged from the Army National Guard and Reserve of the Army with disability severance pay, effective 27 December 2008.

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)                                         AR20100016205



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ABCMR Record of Proceedings (cont)                                         AR20100016205



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