BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100029568 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 March 2005 to show he was medically discharged from active duty by reason of physical disability.

2.  The applicant states:

* he previously served in the Texas Army National Guard (TXARNG) and the Regular Army (RA)
* in February 1994, he was awarded a 10-percent service-connected disability by the Department of Veterans Affairs (VA) after his deployment in support of Operation Desert Storm
* in January 2004, he waived the 10-percent VA compensation in order to deploy with the TXARNG in support of Operation Iraqi Freedom
* he returned from Iraq in February 2005 and he was honorably released from active duty at Fort Dix, NJ
* due to the injuries he received from an improvised explosive device (IED), his commander requested a physical for him and other Soldiers, but the request was denied
* in January 2006, the VA awarded him a 90-percent disability rating effective 6 March 2005 for his combat-related injuries, including his original 10 percent
* in March 2006, the TXARNG discharged him for erroneous enlistment due to his VA rating
* he petitioned this Board to correct the reason for his separation from the ARNG from erroneous enlistment to medical unfitness and he was granted relief
* in March 2008, the ARNG changed the reason for his discharge from the ARNG to "medically unfit for retention"
* he believes he should have undergone a medical evaluation board (MEB) and should have been discharged for disability prior to release from active duty in February 2005
* he also believes he should be eligible for other benefits associated with active duty retirement such as Combat-Related Special Compensation (CRSC) as opposed to the medical unfitness he received

3.  The applicant provides volumes of military and/or civilian and VA medical documents, including service immunization records, service dental records, reports of medical examinations, reports of medical history, individual sick call slips, chronological records of medical care, reports of medical assessments, and correspondence with and from Members of Congress, as well as VA correspondence, letters, ratings, claims, appeals, statements, psychological reports, diagnoses, lists of medications, and other VA-related documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the RA on 20 January 1988 and he held military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman). He was honorably released from active duty on 19 January 1992.

2.  He enlisted in the TXARNG on 20 January 1992.  He served with the 3rd Battalion, 112th Armor, and attained the rank/grade of sergeant/E-5.  He was honorably released from the ARNG on 30 December 1995.

3.  He again enlisted in the TXARNG on 16 June 2001 and held MOS 19K (Armor Crewmember).  He was assigned to Troop A, 1st Squadron, 124th Cavalry, Waco, TX.  He also executed an extension in the ARNG.

4.  He was ordered to active duty on 20 January 2004 and subsequently served in Kuwait/Iraq from 8 March 2004 to 4 February 2005.

5.  On 26 March 2004, he complained of left knee pain after having injured his left knee when the military vehicle he was riding in hit a ditch.  He was seen at Camp Ashraf, Iraq, in an outpatient clinic.

6.  On 14 and 25 May 2004, he complained of knee pain.  He related that after he hit his knee, the swelling had decreased by 50 percent, but he still felt pain when erect for more than 4 hours.  He was examined and prescribed medication and/or pain relievers.  He was also instructed to return for a follow-up and was cleared to return to his unit.

7.  On 16 June 2004, he again complained of knee pain and shoulder pain.  He indicated the pain started at the outside of his clavicle and radiated down his arm.  He was examined and determined to have full range of motion.  He was again prescribed pain medication.

8.  On 6 December 2004, he sustained a combat injury when his track was hit by an IED.  He had a shrapnel wound/laceration to his left cheek and ringing in his ears.  He was sutured and was given a no-shaving profile for 2 weeks.  Upon return, the sutures were removed.

9.  The applicant's DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period December 2003 through November 2004 shows he received an "Among the Best" performance rating by his rater and received a "Successful" overall performance and "Superior" overall potential rating by his senior rater.  The applicant met the height and weight standards and passed his Army Physical Fitness Test (APFT) in June 2004.

10.  On 30 December 2004, a National Guard Bureau (NGB) Form 4100-1-R-E (ARNG Enlisted Promotion Point Worksheet) was initiated to add his name to the promotion list.  This form shows he passed his APFT on 29 October 2004 and qualified with his weapon on 20 November 2004.  He authenticated this form and indicated he wanted to be considered for military education and promotion.

11.  He was honorably released from active duty to the control of the ARNG at Fort Dix, NJ, on 5 March 2005.  His DD Form 214 shows he was released from active duty under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of completion of his required active service.  He completed 1 year, 1 month, and 16 days of creditable active service.

12.  On 22 August 2005, he was determined to be fully qualified for promotion to a staff sergeant (SSG)/E-6 tank commander position with Company B, 5th Battalion, 112th Armor, Longview, TX.  However, his records show he declined the position because it was too far from his home.

13.  On 21 January 2006 after receiving his 28 June 2005 application, the VA awarded him a 90-percent service-connected combined disability rating effective 6 March 2005 for the following conditions:

* 50 percent for post-traumatic stress disorder
* 40 percent for degenerative joint disease, lumbar spine
* 30 percent for degenerative joint disease, cervical spine
* 20 percent for rotator cuff syndrome, left shoulder, with degenerative joint disease of the acromioclavicular joint
* 10 percent for left knee tendonitis
* 10 percent for tinnitus
* 10 percent for bronchitis
* 0 percent for bilateral hearing loss

14.  On 13 April 2006, TXARNG published Orders 103-1059 honorably discharging him from the ARNG effective 3 March 2006.  The orders state "Soldier was erroneously enlisted with a prior-service 90-percent disability."  His NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharged in accordance with paragraph 8-26g(2) of National Guard Regulation 600-200 (Enlisted Personnel Management) by reason of erroneous enlistment or extension.

15.  On 17 July 2006, Captain (CPT) P____ S. S____, the applicant's former company commander, prepared a memorandum for record.

	a.  CPT P____ S. S____ stated the applicant incurred an injury while in Kuwait downloading weapons from a truck and that it was a minor injury that did not affect his ability to perform his duties.  The applicant had his injury reviewed in Iraq at a later date and it seemed to be a nagging injury which was treated with anti-inflammatory medication and pain relievers.  The applicant's main focus was to be with his Soldiers despite his pain.  CPT P____ S. S____ believed the applicant sustained more damage than he admitted but he continued to be with his Soldiers.

	b.  CPT P____ S. S____ stated the applicant sustained more serious injuries by a blast from an IED.  A piece of shrapnel tore his face and required 34 stitches to close.  The doctor also recovered a 3-inch piece of shrapnel from the applicant's body armor and shrapnel from his Kevlar helmet.  He was given 48 hours of bed rest after the IED injury, but he repeatedly asked to go out on missions.  The applicant stayed in quarters for 48 hours and then went out on missions at his own request.

	c.  CPT P____ S. S____ stated the applicant and the rest of the unit returned Stateside in February 2005 and the applicant went on transition leave on 13 February 2005.  CPT P____ S. S____ stated he is aware of some lingering effects from the IED and possibly some from the 1991 Gulf War as well as the applicant's injury in Kuwait.  The applicant did as ordered, he visited the aid station on numerous instances, and he always reluctantly followed doctors' orders.  He was a "mission first, Soldiers always" type of Soldier.

16.  On 27 April 2007, he petitioned the Board to correct his discharge from the ARNG to show medical discharge in lieu of erroneous enlistment or extension.  On 13 March 2008, the Board granted him relief by recommending that TXARNG amend his orders to show his medical discharge from the ARNG.  The Board also advised the applicant that there was no evidence he incurred a disabling medical condition while on active duty.

17.  On 4 March 2008, his NGB Form 22 was amended to show the authority and narrative reason for his separation from the ARNG as "National Guard Regulation 600-200, paragraph 8-35I(8), medically unfit for retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3."

18.  There is no indication in the applicant's records that he was issued a permanent physical profile or that he underwent a medical evaluation with subsequent referral to an MEB while on active duty.

19.  The applicant provides military and/or civilian and VA medical documents, including his service immunization and dental records, reports of medical examinations and/or medical history, individual sick call slips, chronological records of medical care, reports of medical assessments, and correspondence with and from Members of Congress, as well as VA correspondence, letters, ratings, claims, appeals, statements, psychological reports, diagnoses, lists of medications, and other VA-related documents.  However, none of the medical documents he submitted show he was determined to be medically unfit or was unable to perform the duties required by his grade or MOS while on active duty.

20.  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 office, grade, rank, or rating.  It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  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 states the following:

	a.  Paragraph 2-1 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  Paragraph 2-2b(1) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty (until he is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraph 2-2b(2) states that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.

	d.  Paragraph 2-2b(3) states that when the member's referral for physical evaluation is related to physical examinations given as a part of non-disability retirement processing (voluntary or mandatory), the above evidence must be clear and convincing to overcome the presumption of fitness.  In other cases (resignation, reduction in force, release from active duty, administrative separation, discharge, etc.), the presumption of fitness may be overcome by a preponderance of evidence.

21.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination, are those that:

* significantly limit or interfere with the Soldier's performance of his or her duties
* may compromise or aggravate the Soldier's health or well-being if he or she were to remain in the military service; this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individual were to remain in the military service

22.  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 disability rating of at least 30 percent.  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 disability rating at less than 30 percent.

23.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show he was medically separated from active duty by reason of physical disability.

2.  The purpose of the PDES is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.

3.  As such, a Soldier who suffers and injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system.  Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation, beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.

4.  In this case, the evidence of record shows the applicant was ordered to active duty on 20 January 2004.  Shortly after his arrival in Kuwait, he injured his left knee.  He received treatment in the form of medication and/or pain relievers and he continued his mission.  He went from Kuwait to Iraq and he was later involved in an IED incident that injured his face.  He again received appropriate treatment and continued his tour of duty in Iraq.  His NCOER clearly shows he was able to perform the duties required of his MOS and grade.  Nowhere in his records does it show he was issued a permanent physical profile or he had a medical condition that rendered him physically unfit and warranted his entry into the PDES.

5.  There is no evidence in his records and he did not provide sufficient evidence that shows his knee injury was diagnosed during a medical examination and was determined not to have met the medical retention standards of Army Regulation 40-501.  

6.  He now believes he should have received a medical discharge for various medical conditions because the VA granted him a rating percentage.  However, an award of a rating by another agency, such as the VA, does not establish error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical fitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) that affects the individual's civilian employability.  For example, it is noted that the VA awarded the applicant a 
10-percent disability rating for bronchitis.  However, there is no evidence to show this condition rendered him unable to perform his Army duties.

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

8.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant appears to have been physically or medically fit at the time of his release from active duty or at the time of his March 2006 discharge from the ARNG.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20100029568



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ABCMR Record of Proceedings (cont)                                         AR20100029568



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