IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100023767 


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 the narrative reason for separation on her 
27 October 2001 DD Form 214 (Certificate of Release from Active Duty or Discharge) be corrected to reflect she was separated due to medical reasons.  

2.  The applicant states she was recently denied an education award due to an incorrect reason for separation.  She claims that even though she was separated she has a service-connected disability rating of 100 percent by the Department of Veterans Affairs (VA).  

3.  The applicant provides the following documents in support of her application:

* DD Form 214
* Medical Treatment Letter of Instruction, dated 5 October 2001
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* United States Army Physical Disability Agency (USAPDA) Letter, dated
15 December 2004
* Discharge Orders, dated 14 December 2004
* VA letters, dated 26 January 2004, 4 February 2008, 1 July 2008, and 
30 June 2009
* VA Rating Decision, dated 23 January 2004
* Operation Vets Electronic Mail (e-mail) Message
* VA Disability Packet



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 record shows she served in the Army National Guard (ARNG) from 15 March 1991 through 15 March 2000.  She had a break in service from
16 March through 24 September 2000, and served in the U.S. Army Reserve (USAR) from 25 September 2000 through 28 December 2004.  

3.  The record shows that on 8 March 2001, while a member of the USAR, the applicant was ordered to active duty in support of Operation Joint Guardian.  

4.  On 27 October 2001, the applicant was honorably released from active duty, in the rank of sergeant/E-5.  The DD Form 214 issued to the applicant at the time shows she completed 7 months and 20 days of active military service during the period.  Item 25 (Separation Authority) shows the applicant was separated under the provisions of chapter 4, Army Regulation 635-200, and item 28 (Narrative Reason for Separation) shows "completion of required active service."  

5.  The applicant continued to serve in an active Reserve status subsequent to her release from active duty through 19 September 2004 at which time a PEB convened in Washington D.C. to evaluate her condition.  

6.  The PEB determined the applicant was unfit for further service based on the following diagnosed medical conditions and granted the disability rating percentage (%) indicated for each of the conditions:

* Chronic Fatigue Syndrome - 20%
* Neurocardiogenic Syndrome - 0%
* Migraine Headaches - 0%

7.  The PEB finally recommended that the applicant be granted a combined disability rating of 20% and that she be separated due disability with severance pay.  

8.  On 28 December 2004, the applicant was honorably discharged from the USAR with an authorization for disability severance pay.  

9.  The applicant provides a VA Rating Decision, dated 23 January 2004, which granted her service connection for the following medical conditions:

* Chronic Fatigue Syndrome
* Mood Disorder with depressive features
* Neurocardiogenic Syndrome

10.  The VA Rating Decision also indicated that the applicant's eligibility for dependents' educational assistance was denied because the evidence failed to show she currently had a total service connected disability that was permanent in nature and an examination would be scheduled in 5 years to further address the permanency of her condition.  

11.  On 5 October 2004, a medical treatment of instruction letter was provided the applicant at the United States Army Medical Department Activity (MEDDAC), 
Fort Benning, Georgia.  This letter indicated the applicant was authorized 
30 days of health care at any Uniformed Services medical treatment facility (MTF) for 30 days.  It further showed the applicant was first diagnosed with "exhaustion/fatigue; syncope; possible depression" at Camp Bondsteel, Kosovo in April 2001.  

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  Chapter 3 contains guidance on standards of unfitness because of physical disability and states the following:

	a.  Paragraph 3-1.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

	b.  Paragraph 3-2b(1).  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and the Soldier can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	c.  Paragraph 3-2b(2).  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

13.  Title 38, U.S. Code, sections 1110 and 1131, 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.  

14.  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.  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's contention that the authority and reason for her 2001 separation from active duty should be changed to show she was separated for medical reasons (disability) has been carefully considered.  However, the evidence is not sufficient to support granting the requested relief.

2.  By regulation, the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform due to his office, grade, rank, or rating.

3.  The applicant's record and the independent evidence she provides fails to indicate the applicant was unable to perform her assigned duties when she completed her active duty tour of service in 2001.  Her DD Form 214 shows she was separated by reason of completion of required active duty service.  

4.  Further, the applicant continued to serve in the USAR until 28 December 2004, prior to discharge by reason of disability with severance pay.  This continued service establishes a presumption of fitness and shows whatever conditions she may have suffered from did not prevent her from reasonably performing the duties of her office, grade, rank, or rating at the time of separation from active duty in 2001.  

5.  The evidence shows the applicant is being treated and compensated for her service-connected medical conditions by the VA.  This is the proper agency to provide these services for service-connected conditions.  Her eligibility for education benefits administered by the VA rests with that agency.  As a result, it appears there is no evidence of an error or injustice that would support granting the requested relief in this case.

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)                                         AR20100023767



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ABCMR Record of Proceedings (cont)                                         AR20100023767



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