BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110004802 


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 reconsideration of his previously-denied request that his discharge be changed from Expiration of Term of Service (ETS) to early medical retirement.

2.  The applicant states, in effect:

* the agreement between him and the Army was broken when the Department of Veterans Affairs (VA) withheld compensation to offset the Special Separation Benefit (SSB) he received
* he was unfairly denied Concurrent Retirement and Disability Pay (CRDP) and VA compensation, and SSB 
* the VA awarded him a 60-percent disability rating based on his service medical records; therefore, the Army should have made him eligible for disability at the time of discharge
* the Army should have sent him to a Medical Evaluation Board (MEB)
* the earliest Noncommissioned Officer Evaluation Report (NCOER) speaks to the severity of his medical condition in 1982
* the latest NCOER was during the most challenging position of his career

3.  The applicant provides:

* three self-authored statements
* a document explaining Concurrent Department of Defense (DOD) and VA pay and CRDP
* separation orders
* a copy of orders releasing him from the Army Reserve
* two NCOERs

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100012005, on 25 January 2011.

2.  The applicant enlisted in the Regular Army on 13 July 1977.  He was honorably discharged from active duty on 30 August 1995 under the Early Release Program – Special Separation Benefit (SSB).  He enlisted in the U.S. Army Reserve (USAR), effective 31 August June 1995, for a term of 3 years.

3.  The applicant's separation orders state "Soldier's who receive VSI/SSB based on service in the Armed Forces and who subsequently qualify under 10 USC or 14 USC [Coast Guard] for retired or retainer pay shall have deducted an amount equal to the total amount of VSI/SSB pay not previously recouped.  This amount will be recouped from each payment of the retired or retainer pay until the total amount deducted is equal to the total amount of VSI/SSB received."

4.  The applicant's medical records contain no evidence to show he was medically unfit, disabled, or unable to perform his military duties.

5.  The applicant received a physical examination on 18 July 1996, while in the USAR.  The physical shows he received a Physical capacity or stamina, Upper extremities, Lower extremities, Hearing, Eyes, and Psychiatric (PULHES) rating of 111111.  This profile rating shows no limitations in any of the PULHES categories.

6.  The applicant provided a NCOER with the ending date of January 1983.  The NCOER states, in effect, that the applicant was not performing his duties in accordance with the standards expected of a non-commissioned officer.  He gave less than his potential and demonstrated poor leadership qualities.  It also stated that with vigorous military training he had the potential to become a better NCO.

7.  The applicant provided an NCOER with the ending date of November 1994.  The NCOER shows that he was rated as successful or excellence in all rated areas.  Additionally his rating chain recommended he be promoted to master 


sergeant, selected for the sergeant major academy, and serve as a first sergeant.

8.  The Voluntary Separation Incentive (VSI) and SSB programs were established by the National Defense Authorization Act in 1992 to assist with the Army's drawdown.  The VSI and SSB were programs used to encourage Soldiers to voluntarily leave military service.  Soldiers who qualified for these programs received benefits based on their salary and years of service at the time of separation.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, contains guidance on the standards of unfitness because of physical disability.  It states 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  

10.  Title 38, U.S. Code, sections 1110 and 1131, 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.

11.  Title 10, U.S. Code, section1174(h)(2) states a member who has received separation pay under this section, or severance or readjustment pay under any other provision of law, shall not be deprived, by reason of his receipt of such pay, of any disability compensation to which he is entitled under the laws administered by the VA, but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay, severance pay, and readjustment pay received.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be changed from ETS to early retirement was carefully considered and determined to be without merit.

2.  Evidence shows the applicant had served 18 years on active duty when he voluntarily elected to participate in the SSB early release program.

3.  The VA does not have the authority to determine eligibility for military service, fitness for military duty, or to make a determination that a service member's medical condition qualifies for a military disability rating or medical retirement.

4.  The VA is permitted to award veterans compensation based on medical conditions that reduce or impair the social or industrial adaptability of the individual concerned.  These benefits are based on an evaluation by the VA.  The VA and the Army are separate entities.  The VA's determinations of disability are based on the conditions the VA merits as sufficient to qualify for benefits.

5.  There is no evidence in the applicant's medical record, and the applicant has not provided any evidence, to show he should have been sent through a medical evaluation board prior to discharge.  His record shows no evidence and he has not provided sufficient evidence to show that a specific injury or medical condition rendered him unfit for duty in the Regular Army or USAR.  Further, the applicant's records show that after enlisting in the USAR he received a physical showing he had no physical limitations.

6.  The applicant provided two NCOERs.  The first NCOER shows he was not performing well in his assigned duties.  The applicant argues that his poor performance is a clear indication of a medical condition.  That NCOER is not a clear indication that a medical condition rendered him unfit to perform his duties.  To the contrary, it stated that with vigorous military training he had the potential to become a better NCO.  It appears the applicant did become a better NCO since he remained in the RA for an additional 12 years.  

7.  The second NCOER the applicant provided was near the end of his active duty time.  This NCOER indicated he was performing well and was being recommended for positions of increasing responsibility.  

8.  The evaluations provided by the applicant show professional growth during the course of his career.  There is no evidence in either evaluation to indicate the applicant had a medical condition that hindered his ability to perform as a Soldier.

9.  Based on the forgoing, there is insufficient evidence to grant the applicant's requested relief.  



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 to amend the decision of the ABCMR set forth in Docket Number AR20100012005, dated 25 January 2011.




      _______ _ 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)                                         AR20110004802



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ABCMR Record of Proceedings (cont)                                         AR20110004802



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