IN THE CASE OF:
BOARD DATE: 4 August 2011
DOCKET NUMBER: AR20100029356
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 his discharge of 4 November 2000 be voided and that he be medically retired with at least a 30-percent disability rating.
2. The applicant states he was injured in the service before an unjust action was taken against him and he was unjustly discharged instead of being medically retired. He goes on to state he was injured on active duty and was treated for over a year and was then discharged because he could not return to duty. He continues by stating the Department of Veterans Affairs (VA) granted him a
40-percent disability rating in June 1999 and it was subsequently changed to 60 percent.
3. The applicant provides copies of his VA records related to his treatment and compensation.
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 initially enlisted in the California Army National Guard (CAARNG) on 13 February 1987. He was ordered to active duty for training on 3 March 1987. After completing his training as a unit supply specialist at Fort Lee, Virginia, he was released from active duty for training to the control of his CAARNG unit on 16 July 1987.
3. On 4 December 1991, he was discharged from the CAARNG under honorable conditions due to unsatisfactory participation and was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).
4. On 31 August 1998, the applicant again enlisted in the CAARNG. On 4 November 2000, he was discharged under honorable conditions due to fraudulent entry.
5. The available records do not contain the facts and circumstances surrounding his administrative discharge and there is no evidence in the available records to show he was deemed unfit to perform his duties or he was deemed unfit for retention at the time of his discharge.
6. The documents provided by the applicant do not contain the VA Rating Decision the applicant claims was awarded in 1999. However, it does show he had a hearing before VA officials in 2010 and was granted service-connected disability compensation.
7. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.
8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states 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 can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. This regulation also provides 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 or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. This regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.
9. 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.
10. There is a difference between the VA and the Army disability systems. The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her 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 on 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 he was determined to be unfit for retention or discharge at any point during the separation process. Therefore, it must be presumed in the absence of evidence to the contrary that the applicant's administrative discharge 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 administrative separation a determination was made 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 he was properly discharged under administrative procedures in accordance with the applicable regulations.
3. In the absence of evidence to show he was unfit for separation or he could not perform the duties of his rank and MOS at the time of his discharge, there appears to be no basis to grant his request for a medical retirement.
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 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) AR20100029356
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ABCMR Record of Proceedings (cont) AR20100029356
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