IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20100027895 


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 change of his release from active duty (REFRAD) due to completion of required active service to discharge by reason of permanent disability.

2.  The applicant states, in effect, he denied having post-traumatic stress disorder (PTSD) when he was on active duty because he was in fear of stop-loss and being redeployed.  However, he has been diagnosed and he is being treated for PTSD by the Department of Veteran Affairs (VA); therefore, he believes he should have been medically discharged.  He goes on to state that in December 2003 he was returned from Iraq and began treatment for Leshimaniasis (a parasitic disease spread by the bite of infected sand flies) at Walter Reed Army Medical Center (WRAMC), Washington, D.C.  When he returned to his unit at Fort Hood, TX he realized that he had a problem sleeping and he went to see a psychologist who diagnosed him with PTSD; however, he was in denial of having PTSD.  He just wanted to finish his time and he thought pursuing a medical discharge would delay his departure.  He continues by stating that he is currently receiving a 100 percent (%) service-connected disability rating percentage from the VA and the Social Security Administration.  He has been told by those agencies that he should have been medically discharged from the Army.

3.  The applicant provides copies of his military and VA medical treatment records and a 1-page letter explaining his application.

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 Regular Army with a moral waiver in Dallas, TX on 3 January 2001, for a period of 4 years, training in military occupational specialty (MOS) 19D (cavalry scout), a cash enlistment bonus and assignment to Fort Hood.  He completed his one-station unit training at Fort Knox, KY and he was transferred to Fort Hood for his first and only duty assignment.

3.  The applicant was deployed to Iraq with his unit and he was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 December 2003.  He was medically evacuated from theater in December 2003 for treatment of Leishmaniasis and he was transferred to WRAMC where he was treated for several weeks before being returned to his unit at Fort Hood.

4.  On 2 January 2005 he was honorably REFRAD by reason of completion of required active service.  He served 4 years of creditable active service.

5.  A review of the copies of his military medical records failed to show he sought any mental health treatment or that he was at any time diagnosed as suffering from PTSD.  There is also no indication in his record that shows he was unfit to perform the duties of his MOS at the time he completed his term of enlistment.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his/her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.

7.  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 a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 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 different positions.  Furthermore, 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.

8.  There is a difference between the VA and the Army disability systems.  While both the VA and the Army use the VA Schedule for Rating Disabilities (VASRD) to determine percentage ratings, not all of the general policies set forth in the VASRD apply to the Army; thus there are sometimes differences in ratings. The Army's determination of a soldier's fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his 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 physical evaluation board 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 on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending upon the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided any evidence and the available record does not contain sufficient evidence to show that at any point during the separation 

process he was determined to be unfit for retention or discharge.  Therefore, it must be presumed in the absence of evidence to the contrary that the applicant’s REFRAD was accomplished in accordance with the applicable regulations with no violations of his rights.

2.  It must also be presumed, in the absence of evidence to the contrary, that at the time the applicant underwent his separation physical medical personnel properly determined that his medical condition, if he had any, did not warrant consideration under the Physical Disability Evaluation System and/or referral to a medical and/or physical evaluation board.  Accordingly, it appears that he was properly REFRAD in accordance with the applicable regulations.

3.  In the absence of evidence to show that at the time of his discharge he was unfit for separation or that he could not perform the duties of his rank and MOS, there appears to be no basis to grant his request for a medical discharge.  

4.  The fact that the VA in its discretion may have awarded the applicant a disability rating does not establish physical unfitness, of any degree thereof for Department of the Army purposes.  Each agency/department is bound to operate within its own rules, regulations, and policies.  The granting of a compensable award by one agency is not tantamount to a lesser, equal, or more enhanced award by the other agency.

5.  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.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20100027895



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ABCMR Record of Proceedings (cont)                                         AR20100027895



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