IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100021151 


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) for the period ending 6 July 1992 to show:

* He was medically discharged instead of honorably released from active duty
* Two awards of the Army Commendation Medal
* Award of the Joint Service Commendation Medal

2.  He states his illness is Gulf War Syndrome.  He has been under the care of a Department of Veterans Affairs (VA) doctor from 1995 to the present.  He requested a medical retirement which was not given to him.  He has records (his orders) justifying time of combat duty in the Persian Gulf which was not considered at the end of his deployment.  His duties were not recognized during Operations Desert Shield/Storm and Farewell.  Three campaigns were ignored, totaling 4 tours of combat deployment.  The VA had all of his records and they kept denying him from day one.  With all records in order, the VA still treated him like a nobody.

3.  He provides:

* his Army Commendation Medal certificates, dated 15 June 1991 and
19 September 1993
* his Joint Service Commendation Medal certificate, dated 1 September 1992
* 
two VA Forms 21-4138 (VA Statement in Support of Claim), both dated
2 August 2010
* various Standard Forms (SF) 509 (Medical Record - Progress Notes
* various SF 513 (Medical Record - Consultation Sheet)
* an undated VA Form 21-2545 (VA Report of Medical Examination for Disability Evaluation)
* a VA Compensation and Pension Examination, dated 14 March 1996
* a Minnesota Multiphasic Personality Inventory-2 (MMPI-2) Report on the applicant, dated 4 March 1996
* a VA Pulmonary Lab Report, dated 15 March 1996
* an Electroencephalograph Report, dated 14 March 1996
* three letters from the VA pertaining to his claim for compensation and pension
* a VA Statement of Case, dated 7 February 1997
* his VA Rating Decisions, dated in 1996 and 1997

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's military records show he enlisted in the U.S. Army Reserve (USAR) on 10 December 1980 for a period of 6 years in pay grade E-1.  He was ordered to initial active duty for training (IADT) and he entered on active duty on 29 December 1980.  He completed training and he was awarded military occupational specialty 64C (Motor Transport Operator).  He was honorably released from IADT on 31 March 1981 and he was transferred to a Reserve unit. On 6 December 1986 he reenlisted in the USAR for 6 years.  

3.  He was ordered to active duty in support of Operation Desert Storm/Shield for a period not to exceed 358 days.  He entered active duty on 20 September 1990. He served in Saudi Arabia from on or about 1 November 1990 through 11 May 1992.

4.  He provided a certificate, dated 15 June 1991, awarding him the Army Commendation Medal for exceptionally meritorious achievement during Operation Desert Storm from 1 April to 15 June 1991.  It appears this award is already listed on his DD Form 214.

5.  Permanent Orders 56-1, issued by Headquarters, Military Traffic Management Command, Falls Church, VA, dated on 2 September 1992, awarded him the Joint Service Commendation Medal for meritorious service for the period 15 October 1991 to 1 May 1992.

6.  He was honorably released from active duty on 6 July 1992 in the rank/grade of sergeant (SGT)/E-5, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 4, at the expiration of his term of service (ETS).  He was transferred to a Reserve unit in San Diego, CA.

7.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for the period ending 6 July 1992 shows the:

* Army Service Ribbon
* National Defense Service Medal
* Southwest Asia Service Medal with 3 bronze service stars
* Army Commendation Medal
* Bronze Star Medal
* Army Achievement Medal
* Kuwait Liberation Medal
* Army Reserve Components Achievement Medal
* Noncommissioned Officer Professional Development Ribbon
* 2 overseas service bars
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

8.  There is no indication he suffered from an injury, illness, or any medical condition while on active duty.  Additionally, there is no evidence he was referred to a medical evaluation or a physical evaluation board for consideration of any medical condition or Gulf War Syndrome or that a line of duty determination was made for this condition during his period of active duty.

9.  He also provided a certificate, dated 19 September 1993, awarding him the Army Commendation Medal for exceptionally meritorious achievement and service as a platoon sergeant for the period 15 February 1993 through 22 July 1993.  

10.  He reenlisted in the USAR on 17 October 1993 for 3 years.  His reenlistment contract indicates he was fully qualified for reenlistment.

11.  He provided documents which shows in March 1996 he submitted a claim to the VA for a compensation and pension evaluation for symptoms related to the Gulf War Syndrome.  On 7 February 1997, the VA advised him of the following:

* Service-connection of headaches and stomach problems, and high blood pressure were not well grounded
* Service-connection of lung problems and post traumatic stress disorder were denied

12.  A VA Rating Decision, dated 9 June 1997, advised the applicant that he had not replied to a letter requesting information to include lay statements regarding undiagnosed illness due to Gulf War Syndrome.  He was denied service-connection for undiagnosed illness and environmental hazard.

13.  On 15 October 1997, he extended his 1993 enlistment in the USAR.  Again, his extension in the USAR indicates he was fully qualified to extend.

14.  He was honorably discharged from the USAR on 12 April 1999.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 4 established policy and prescribes procedures for separating Soldiers upon ETS or fulfillment of service obligation.  Paragraph 4-2c stated personnel who were physically unfit for retention (Army Regulation 40-501 (Standards of Medical Fitness), chapter 3), but who were accepted for, or continued in, military service per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), would not be separated because of ETS unless processing for separation because physical disability was waived.  Paragraph 4-2g stated Soldiers of the USAR ordered to active duty for a period in excess of 90 days would, upon release from active duty revert to the control the appropriate Reserve Component (RC).  

16.  Army Regulation 635-40, then in effect, established the Army physical disability evaluation system and set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  

17.  Army Regulation 40-501, chapter 3, provides that, for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  

18.  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 compensation or a VA service-connected rating does not establish error or injustice in an Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

19.  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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the USAR on 10 December 1980.  He entered on active duty in support of Operation Desert Shield/Storm on 20 September 1990 and he was released from active duty 6 July 1992.  

2.  His contentions have been noted; however, there is no evidence he was diagnosed or referred to a medical evaluation or a physical evaluation board for consideration of any medical condition prior to his 1992 discharge from active duty.  There is evidence of record to indicate he felt himself to be sufficiently physically fit at the time based on his 1993 and 1997 USAR reenlistment and continuous service in the USAR until his discharge in 1999.  There is evidence he was discharged by reason of physical disability at the time. 

3.  There is an absence of medical documentation to support his statement that he was suffering from Gulf War Syndrome during the period of his active duty from 1991 to 1992 making him eligible for medical retirement at that time.

4.  The VA documentation he provided with his application was also carefully considered.  The VA also requested information from him pertaining to undiagnosed illness due to Gulf War Syndrome.  However, award of a VA rating for any medical condition does not establish entitlement to a medical retirement.

5.  In view of the circumstances in this case, he is not entitled to a medical retirement.  He has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks. 

6.  The evidence of record also confirms he was awarded the Army Commendation Medal for exceptionally meritorious achievement from 1 April to 15 June 1991 and the Joint Service Commendation Medal for meritorious service from 15 October 1991 to 1 May 1992.  The Army Commendation is already shown in Item 13 of his 1992; however, the Joint Service Commendation Medal is not shown.  Therefore, he is entitled to correction of his DD Form 214 to show the Joint Service Commendation Medal.

7.  The evidence provided by the applicant shows he was awarded a second Army Commendation Medal for exceptionally meritorious achievement and service as a platoon sergeant for the period of 15 February 1993 through 22 July 1993.  However, the period for this award was subsequent to his period of active duty from 20 September 1990 through 6 July 1992; therefore, he is not entitled to correction to his DD Form 214 for the period ending 6 July 1992 to show, in effect, the Army Commendation Medal (2nd Award).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to Item 13 of his DD Form 214 for the period ending 6 July 1992 the Joint Service Commendation Medal.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his DD Form 214 for the period ending 6 July 1992 to show he was medically discharged or adding a second Army Commendation Medal to item 13 of this DD Form 214.



      ___________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)                                         AR20100021151



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ABCMR Record of Proceedings (cont)                                         AR20100021151



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