IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20100028439 


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 reason for separation to discharge due to physical disability.

2.  The applicant states that while on active duty he was not given the opportunity to have his medical conditions evaluated by a Medical Evaluation Board (MEB).  He currently has a 40 percent (%) disability rating from the Department of Veterans Affairs (DVA).

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his Purple Heart award certificate and citation
* two statements referencing his December 2005 injuries
* 37 pages of medical documents
* a Physical Profile sheet
* two DVA rating decisions

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 on 17 April 2003.  He was trained in and awarded military occupational specialty 11B (Infantryman).

3.  On 15 December 2005, the vehicle the applicant was riding in hit an improvised explosive device (IED).  Statements provided at the time indicated the applicant was unconscious for a brief period and he sustained an injury to his left leg.

4.  The available medical records show the applicant was treated for mid-low back pain with minor deformities at L4-5, ringing in the ears, hearing loss, chronic headaches, and tremors.  A 1 February 2006 physical profile shows a temporary L3 profile

5.  His Post-Deployment Physical Examination, dated 16 May 2006, shows complaints of and findings for minimal hearing loss in the left ear, mid-low back pain, left knee pain (tendonitis), frequent headaches, and ringing in the ears.  In response to question 18 of his undated DD Form 2697 (Report of Medical Assessment), "At the present time, do you intend to seek DVA disability," the applicant responded by indicating "maybe my hearing (loss hearing because of IED explosion)."

6.  The applicant was honorably released from active duty on 16 May 2006 under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service.

7.  On 18 September 2006, the DVA granted the applicant an evaluation of 20% for low back strain, 10% for tinnitus (ringing in the ears), and 0% for headaches and left knee strain, for a combined disability rating of 30%.  The conditions of hearing loss, bilateral hand nail fungus, post traumatic stress disorder (PTSD), and irritable bowel syndrome were denied.  

8.  On 30 April 2008, the DVA granted the applicant a 10% evaluation for traumatic brain injury (TBI), continued his other evaluations, and deferred a second consideration for PTSD.  His was granted a combined disability rating of 40%.

9.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

10.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability he must be unable to perform the duties of his office, grade, rank or rating.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties 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 38, U.S. Code, sections 310 and 331, 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.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that while on active duty he was not given the opportunity to have his medical conditions evaluated by an MEB.  He currently has a 40% disability rating from the DVA.

2.  The physician conducting the applicant's post-deployment physical did not find any condition that was of such a severity as to warrant the applicant being referred for medical evaluation under the Army's physical disability evaluation system.

3.  The Army rates only conditions which are determined to be physically unfitting for further military service thereby compensating the individual for the loss of his or her military career.  The VA, however, may rate any service-connected impairment, thus compensating for loss of civilian employment.  Therefore, it is not unexpected that these two different systems would produce different evaluations.

4.  The applicant has not provided and the available evidence does not show that any of the applicant's medical conditions were interfering with the performance of the duties of his office, grade, rank or rating, which is a prerequisite to being found physically unfit.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100028439



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ABCMR Record of Proceedings (cont)                                         AR20100028439



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