IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110001750 


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 narrative reason for separation be changed to show he was medically discharged due to disability.

2.  The applicant states, in effect, his medical problems were not addressed properly during out-processing and no care was given for injuries sustained during combat operations between 2003 and 2004 and in 2008 his deployment to Iraq made his injuries worse.  He further states the Department of Veterans Affairs (VA) has rated him 40 percent disabled due to three additional combat related injuries that are under appeal.  The applicant contends the VA’s finding shows he was physically unfit, he was unable to attend the Noncommissioned Officer’s Academy, and he did not have the ability to perform his duties to the fullest. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 11 October 2004
* DD Form 214 with a separation date of 15 January 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the U.S. Army Reserve (USAR) on 11 December 1987 for a period of 8 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 72E (Tactical Telecommunications Center Operator).  
2.  On 21 August 1991, he enlisted in the Georgia Army National Guard (ARNG) and attained the rank/grade of private first class (PFC/E-3).  On 23 August 1993, the applicant was honorably released from the ARNG and transferred to the USAR for completion of his statutory obligation.

3.  On 22 March 1994, the applicant enlisted in the Alabama ARNG.  He was honorably released from the ARNG in the rank/grade of private (PV2)/E-2 and transferred to the USAR Control Group (Annual Training) on 1 June 1995.   

4.  On 12 October 2001, he enlisted in the Regular Army for a period of three years with the rank/grade of specialist four (SPC)/E-4 and subsequently served in Iraq for the period 28 February 2003 through 17 February 2004.

5.  The applicant was honorably discharged on 11 October 2004 in the rank of sergeant (SGT)/E-5.  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) due to completion of required active service.  He completed 3 years of creditable active service during this period.

6.  The applicant’s records contain a DD Form 2808 (Report of Medical Examination), dated 19 July 2007.  The purpose of the examination is identified as “Retention.”  The examination was authenticated on 30 August 2007, and in block 74a (Examinee/Applicant) an X was placed indicating the applicant was qualified for service.

7.  A Standard Form 507 (Medical Record), authenticated by his physician on
19 July 2007, shows the physician reviewed the applicant’s functional capacity certificate and concurred with the applicant’s self-assessment that he had no physical limitations. 

8.  The applicant’s records contain a copy of the results of his retention physical which also states the service member is physically fit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).

9.  The complete facts and circumstances of the applicant’s enlistment in the USAR are not available; however, on 13 January 2008, the applicant was ordered to active duty and subsequently deployed to Kuwait/Iraq in support of Operation Iraqi Freedom in MOS 25U (Signal Support Systems Specialist).  The applicant was honorably released from active duty on 15 January 2009 in the rank of staff sergeant (SSG/E-6).  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) due to completion of required active service.  He completed 1 year and 3 days of creditable active service during this period.

10.  His record contains DA Form 2166-8 (NCO Evaluation Report) with a reporting period of 13 January 2008 through 17 December 2008.  This form was used to evaluate the applicant while he was mobilized in support of Operation Iraqi Freedom.  The report shows the applicant met the standard for physical fitness and military bearing, leadership, and training.  He exceeded the standard for competence, and responsibility and accountability.  Part Va (Overall Performance and Potential) of the form shows he was rated “among the best.”  

11.  The applicant’s record contains DA Form 2166-8 with a reporting period of                 18 December 2008 through 17 December 2009.  Part IV (Army Values/Attributes/Skills/Actions) contains the comment “Soldier is currently a non-participant and receiving unsatisfactory participant letters from the unit.”

12.  The complete facts and circumstances of the applicant’s separation action are not available; however, on 17 March 2011 the applicant was discharged from the USAR.  Orders 11-070-00059, dated 11 March 2011, show the applicant was discharged under honorable conditions (general).

13.  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.  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.

14.  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:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, 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 individuals were to remain in the military service

15.  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.

16.  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 on the part of the Army.  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’s request to change his narrative reason for separation to a medical discharge due to disability has been carefully considered and found to be without merit.

2.  The purpose of the PDES is to maintain an effective and fit military organization with the 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 the rights and interests of the Army and the Soldier are protected.

3.  As such, a Soldier who suffers an 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 process beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.

4.  There is no evidence in the available records and the applicant did not provide sufficient evidence which shows he was diagnosed with a medical condition which would have warranted his entry into the PDES.  

5.  He now believes he should have received a medical discharge for various medical conditions due to being granted a VA disability rating for service connected injuries.  However, an award of a rating by another agency, such as the VA, does not establish error on the part of 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, the VA may award an applicant a disability rating for bronchitis even though the condition may not have rendered him unable to perform his Army duties.

6.  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 a physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform based on the Soldiers office, grade, rank, or rating.

7.  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 (as shown by his NCO Evaluation Report for the period ending 17 December 2008) and at the time of his March 2011 discharge from the USAR.  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 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)                                         AR20110001750



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ABCMR Record of Proceedings (cont)                                         AR20110001750



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