IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20110003750


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 a medical retirement.

2.  The applicant states, in effect, he was never afforded the opportunity to enter the Army Physical Disability Evaluation System (PDES) even though he was wounded in Iraq and needed surgery on his left knee.  He never received a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB), nor did he receive an MRP2 [Medical Retention Processing Program - 2] hearing.  He did not want to be released from active duty; he wanted to go to Drill Sergeants School; however, his Retention Noncommissioned Officer (NCO) was too busy to process him and he was separated.

3.  The applicant provides:

* Discharge orders from the U.S. Army Reserve
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Two statements from the applicant
* 17 December 2010 note and an undated note from an Army Wounded Warrior Program (AW2) contractor
* Department of Veterans Affairs (VA) letters dated 24 November 2010 and 13 December 2010
* Service Medical records from 4 May through 13 December 2007
* Two DA Forms 3349 (Physical Profile)
* DD Form 689 (Individual Sick Slip)
* Three DD Forms 1380 (US Field Medical Card)
* DD Form 2697 (Report of Medical Assessment)
* DD Form 2808 (Report of Medical Examination)
* Listings for VA offices
* MRP2 documents

CONSIDERATION OF EVIDENCE:

1.  With prior service in the Army National Guard, the applicant enlisted in the Regular Army for 3 years and served from 1 June 2004 through 12 February 2008.  He served in Iraq from 4 October 2006 through 30 December 2007.  He served in military occupational specialty (MOS) 19K2O (M1 Armor Crewman).

2.  The applicant was retained 243 days beyond his expiration term of service (ETS) date due to "STOP LOSS."

3.  The record shows the applicant was separated at Fort Hood, TX under the provisions of Army Regulation 635-200, chapter 4 by reason of completion of required active service.  His DD Form 214 shows a separation code of "MBK" meaning his release from active duty was voluntary.

4.  The applicant's available service medical records do not show any physically or mentally disabling conditions that would have warranted referral to the PDES.  The applicant's final DA Form 2166-8 (NCO Evaluation Report), for the period ending 31 July 2007, contained in his Interactive Personnel Electronic Records Management System (iPERMS) file shows a fully capable Soldier who was physically fit and "mentally tough."

5.  VA medical documents show the applicant is rated 10 percent disabled for left knee limited flexion.  He had his knee surgically repaired at the Louis Stokes VA Medical Center, Cleveland, OH after his release from active duty.

6.  There are two MRP programs, MRP and MRP2.

	a.  The MRP program is designed to compassionately evaluate and treat the Reserve Component (RC) Warrior in Transition (WT) with an “in the line of duty” incurred illness, injury, disease or an aggravated pre-existing medical condition which prevent them from performing the duties required by their MOS and/or position:

* to, as soon as possible, return the Soldiers back to duty within their respective RC
* if a return to duty is not possible, process the WT through PDES


   b.  The MRP program applies to outpatient and in-patient WT on active duty who are mobilized under 10 USC 12302 partial mobilization orders for operations in support of the Global War on Terror (GWOT).  Soldiers on active duty in support of the GWOT under another authority will be handled on a case-by-case basis.

   c.  The MRP2 program is designed to voluntarily return Soldiers back to temporary active duty, to evaluate or treat RC WT with an unresolved mobilization connected medical condition that either was not identified or did not reach optimal medical benefit prior to their REFRAD.  This program applies to WT previously released from active duty while mobilized under 10 USC 12302 partial mobilization orders for operations in support of the GWOT.  Soldiers previously on active duty orders in support of the GWOT under another authority will be handled on a case-by-case basis.  Soldiers on active duty orders not in support of the GWOT might be eligible for an Active Duty Medical Extension.  A Medical Review Board must determine that the Soldier is eligible for MRP2.

7.  Chapter 61, Title 10, U.S. Code provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, US Army Human Resources Command (HRC), Fort Knox, KY, is responsible for operating the PDES and executes Secretary of Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with DoD Directive 1332.18 and Army Regulation 635-40.

   a.  The objectives of the system are 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
* provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected

   b.  A Soldier is referred into the PDES system when the Soldier no longer meets Medical Retention Standards in accordance with Army Regulation 40-501, chapter 3:

* as evidenced in an MEB


* receive a permanent medical profile, P3 or P4, and is referred by an MOS/Medical Retention Board or by the Commander, HRC
* is command-referred for a fitness for duty medical examination

   c.  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 office, grade, rank or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.

   d.  The PDES relies heavily on the performance data provided by the Soldier's immediate chain of command.  Variance in case findings is often the result of inadequate information being provided relative to the Soldier's duty performance.

8.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish a concurrent award of an Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

9.  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 rated at least 30 percent.

10.  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 rated less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests medical retirement. 

2.  The applicant was voluntarily separated at ETS for completion of required active service.  He states he never wanted to separate, but his Retention NCO was too busy to reenlist him.  Even if true, the applicant could have gone to the Post Retention NCO and reenlisted; however, despite his current claims, it appears he wanted to ETS.

3.  The applicant did not have any disabilities which would have referred him to the PDES for disability processing.  The left knee problem he cites in his application was repaired by the VA and warranted only a 10 percent disability rating by that agency.  Even if the applicant had been evaluated by the Army for his left knee condition, he would not have been medically retired based on a 
10 percent disability rating.

4.  The applicant applied for return to duty through the MRP2 program.  Although the results of that application are unavailable, based on a review of program eligibility requirements, it appears he did not qualify and therefore was rejected.

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)                                         AR20110003750



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ABCMR Record of Proceedings (cont)                                         AR20110003750



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