IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100026496 


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 21 September 2009 to show he was medically discharged instead of honorably released from active duty.

2.  He states, in effect, he was honorably released from active duty after completing his 3-year enlistment in the Army.  He was in the process of getting a medical board because he was injured in Iraq; however, his doctor told him he couldn't finish the process because he didn't have much time left in the Army until his ETS (expiration of term of service).  He asked the doctor if he extended could he complete the medical board.  The doctor told him no, so he got out.  The Army National Guard told him that he could have extended and he would have been considered by the medical board.

3.  He provides:

* his DD Form 214
* various Standard Forms 519-B (Radiologic Examination Report, dated in 2007
* various Veterans Health Information Systems and Technology Architecture (VistA) Electronic Medical Documentation - Progress Notes)
* various SFs 600 (Health Record - Chronological Record of Medical Care), dated between 2007-2009

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 7 July 2006 for a period of 8 years.  On 25 July 2006, he was discharged from the USAR DEP and he enlisted in the Regular Army on 26 July 2006 for a period of 3 years.  He completed training and he was awarded military occupational specialty 52D (Power-Generation Equipment Repairer).

2.  He provided documentation which shows on 28 January 2007, he underwent a radiological examination of his acromioclavicular joints of the shoulder and received treatment.  The impression found widening of the left joint with some instability during weight bearing suggesting an acromioclavicular strain.

3.  He also provided several medical documents dated between August 2006 and April 2009, one of which, dated January 2009, shows he was seen for testicular pain with a 6-8 months history.

4.  He served in Iraq from 30 April 2008 through 29 April 2009.

5.  A DD Form 2808 (Report of Medical Examination), dated 6 July 2009, noted no significant defects or diagnoses.  He was found qualified for separation.

6.  On an SF 600, dated 19 August 2009, the evaluating physician assistant (PA) stated the applicant inquired about a medical board for his testicular pain.  The PA stated the applicant already had an approved separation date.  He explained to the applicant that since his injury occurred on active duty and it was well documented in his record and he could follow-up with Department of Veterans Affairs (VA) upon his ETS.  However, the PA did not indicate the testicular pain (or any other condition) rendered the applicant physically unfit to perform the duties required of his grade or specialty.

7.  He was honorably released from active duty (REFRAD) on 21 September 2009 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 4, for completion of required active service.  He was transferred to a unit of the Alabama Army National Guard (ALARNG).

8.  His ARNG Current Annual Statement, prepared on 4 August 2010, shows he attended inactive duty training at least through 6 June 2010.  

9.  There is no evidence he was referred to a medical evaluation board (MEB) or a physical evaluation board (PEB) for consideration of any medical condition while on active duty or that a line of duty determination was made for any medical condition during his period of active duty.

10.  He further provided medical progress notes, printed on 31 August 2010, which stated he was in the process of a medical board for a left shoulder injury and pain from a right hernia repair.

11.  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.

12.  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 impairment does not, of itself, justify a finding of unfitness because of physical disability.

13.  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.  

14.  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 least a
30 percent (%) disability rating percentage.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a less than 30% disability rating.

15.  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.

16.  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 Regular Army on 26 July 2006 and he was honorably released from active duty on 21 September 2009 for completion of required active service.

2.  There is no evidence in the available record and the applicant provides insufficient evidence that shows he was diagnosed with a medical condition or impairment that restricted him from performing the duties required of his grade or specialty and would have warranted his entry into the PDES.  

3.  The purpose of the MEB is to evaluate the Soldier's medical condition(s) as diagnosed during a medical examination to determine if they do or do not meet the medical retention standards of Army Regulation 40-501, document a Soldier’s medical status and duty limitations, and refer Soldiers to a PEB.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating. The available evidence shows he was fully able to perform the duties of his grade and/or military occupational specialty and fully qualified for separation.  It appears he continued to attend assembly drills in the ARNG after REFRAD.  

4.  His contentions are noted.  However, there is an absence of sufficient medical documentation to support his request.  The documentation he provided was carefully considered.  An award of a VA rating for any medical condition does not establish entitlement to a medical discharge.
5.  In view of the circumstances in this case, he is not entitled to a medical discharge.  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.

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)                                         AR20100026496



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ABCMR Record of Proceedings (cont)                                         AR20100026496



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