IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110002030 


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 be voided and that he be retired by reason of 100% disability with entitlement to all back pay.

2.  The applicant states, in effect, that he was unjustly discharged and was refused the right to appear before a medical evaluation board (MEB) in violation of Department of Defense Instructions and Army Regulations.  He further states that he had a profile and had the right to be processed under the Physical Disability Evaluation System (PDES) and his chain of command denied him that right.  Accordingly, he should have been retired with a 100% service-connected disability.

3.  The applicant provides a four-page handwritten letter explaining his application and excerpts from Army Regulation 40-501 ((Standards of Medical Fitness).

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 was born on 20 May 1973 and enlisted in the Regular Army in Portland, Oregon on 16 September 1992 for a period of 4 years and training as a medical specialist.

3.  He completed his basic training at Fort Sill, Oklahoma and his advanced individual training at Fort Sam Houston, Texas before being transferred to Korea on 3 March 1993.  He was advanced to the pay grade of E-3 on 16 September 1993. 

4.  He departed Korea on 2 March 1994 and was transferred to the Medical Department Activity (MEDDAC) at Fort Eustis, Virginia.  He was enrolled in the Weight Control Program on 1 November 1994.

5.  On 7 February 1995, the applicant’s commander notified him that he was initiating action to bar him from reenlistment due to two consecutive failures of the Army Physical Fitness Test.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 10 February 1995.  The applicant elected not to appeal the bar.  The commander reviewed the bar to reenlistment on 27 April 1995 and directed that the bar remain in place.

6.  On 28 April 1995, he was issued a permanent physical profile for asthma and given limitations of running at his own pace and distance.  He was also authorized an alternate event for the 2-mile run.

7.  On 12 January 1996, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, paragraph 16-5b(1) due to his perceived inability to overcome the reasons for his bar to reenlistment.  The applicant also declined a physical examination in writing.

8.  The appropriate authority approved his request for discharge and directed that he be furnished an Honorable Discharge Certificate.

9.  Accordingly, he was honorably discharged in the pay grade of E-3 on 1 February 1996 under the provisions of Army Regulation 635-200, paragraph 


16-5b due to non-retention on active duty.  He had served 3 years, 4 months, and 16 days of active service.  

10.  A review of the available records failed to show any indication that the applicant was ever deemed unfit to perform his duties or that he requested evaluation under the PDES.  His records do contain a memorandum for record, dated 1 February 1996, that states Soldiers cannot be retained past their expiration term of service for a physical if they do not desire one and that this applies even if the troop medical clinic physician has stated on the physical waiver form that a physical is needed.  The applicant signed this memorandum for record, stated he did not request a physical.

11.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Paragraph 16-5b and c serve as the authority for voluntary separation of enlisted Soldiers denied reenlistment.  It states, in pertinent part, that Soldiers denied reenlistment or who decline to meet service remaining requirements and who perceive that they cannot overcome a bar to reenlistment may request immediate separation before the expiration of term of service.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the mere presence of an 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.

13.  Title 38, U.S. Code, sections 310 and 331, permits the Department of Veterans Affairs 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.

14.  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.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was entitled to processing under the PDES because he had a profile has been noted and found to lack merit.  There are no provisions that provide for automatic processing under the PDES simply because an individual has been issued a profile.

2.  The applicant’s contention that he was refused the right to attend a medical board has also been noted and found to lack merit.  Referral to a medical board through the PDES occurs only when an individual is deemed to be unfit to perform the duties of his military occupational specialty (MOS) and there is no evidence to show that at any time he was unable to perform the duties of his MOS.  Further, on 1 February 1996 he declined to take a physical.

3.  Therefore, based on the available evidence, he was not entitled to or eligible for processing under the PDES for a disability separation, and he was properly discharged per his request in accordance with the applicable regulations in effect at the time with no indication of any of the applicant’s rights.

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)                                         AR20110002030



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ABCMR Record of Proceedings (cont)                                         AR20110002030



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