IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20110001856 


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 5 August 2006 release from active duty (REFRAD) be voided and that he be retired by reason of permanent disability.

2.  The applicant states, in effect, that he has a Department of Veterans Affairs (VA) disability rating of 50% for post-traumatic stress disorder (PTSD) effective the day after he was REFRAD.  Accordingly, he should have been medically retired instead of being REFRAD.  

3.  The applicant provides a copy of his VA Rating Decision.

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 25 July 1995 for a period of 4 years, training as an infantryman and a $6,000 enlistment bonus.  He completed his one-station unit training at Fort Benning, Georgia and was transferred to Fort Stewart, Georgia for duty as a fighting vehicle infantryman.

3.  On 25 February 1997, he was transferred to Germany and remained in Germany until he was honorably REFRAD in pay grade E-1 on 24 July 1999 due to completion of required service.  He had completed 4 years of total active service.

4.  On 23 January 2004, he enlisted in the Florida Army National Guard (FLARNG) for a period of 6 years.

5.  On 1 April 2005, he was ordered to report to active duty to serve with his unit in support of Operation Enduring Freedom in Afghanistan.  He deployed to Afghanistan from 7 July 2005 to 7 July 2006 and on 5 August 2006 he was honorably REFRAD due to completion of required service and returned to his FLARNG unit.

6.  On 22 January 2010, he was honorably discharged from the FLARNG due to expiration term of service (ETS).

7.  A review of the available records failed to show the applicant was ever referred for an evaluation through the Physical Disability Evaluation System (PDES).

8.  The VA Rating Decision provided by the applicant shows that on 
11 December 2007 the VA granted him a 50% service-connected disability rating for PTSD effective 6 August 2006 and a 10% service-connected disability rating for tinnitus effective 7 September 2007.

9.  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.

10.  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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  That regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

11.  Army Regulation 635-40 also 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 may reasonably be expected to perform because of his or her office, rank, grade or rating.  It also provides that when a commander believes that a Soldier of his or her command is unable to perform the duties of his or her office, grade, rank or rating because of physical disability, the commander will refer the Soldier to the responsible medical treatment facility (MTF) for evaluation.  If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a Medical Evaluation Board (MEB).

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.  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 upon 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 PEB 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 upon 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.  In the absence of evidence to the contrary, it must be presumed that the applicant was properly deemed fit for separation and that he did not qualify for separation under the PDES.


2.  The fact that the VA in its discretion has 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.

3.  An individual’s right to appear before a medical review board is contingent on an evaluation by medical personnel who determine that the Soldier is not medically qualified to perform duty.  Therefore, absent evidence to show that he was deemed unfit to perform the duties of his MOS or to be retained in service, there appears to be no basis to grant his request.  

4.  Accordingly, it appears the applicant was properly REFRAD in accordance with the applicable regulations with no violations of any of the applicant’s rights and that the proper separation authority and narrative reason for separation were correctly applied. 

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)                                         AR20110001856



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ABCMR Record of Proceedings (cont)                                         AR20110001856



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