BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110006380 


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, through his Member of Congress, correction of his
DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 21 December 2004 to show he was medically retired from active duty.

2.  The applicant states:

* He was on medical hold at Fort Polk, LA
* He should have been medically retired but he was summarily released from active duty and returned to the Army National Guard (ARNG)
* His Department of Veterans Affairs (VA) service-connected disability rating confirms his disabilities were "Gulf War" incurred
* The VA awarded him a 60 percent (%) disability rating for Gulf War incurred components during Operation Enduring Freedom

3.  The applicant provides:

* DD Forms 214, for the periods ending 10 July 1990 and 21 December 2004
* VA rating decision, dated 10 June 2009
* National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) for the periods ending 1 August 1990 and 15 April 2005
* 
DA Form 2173 (Statement of Medical Examination and Duty Status)
* Operation Report and allied medical documents
* Mobilization orders 

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's records show he was born on 29 July 1972.

3.  Having had prior service in the ARNG, the applicant enlisted in the Louisiana Army National Guard (LAARNG) on 25 August 1994 and held military occupational specialty (MOS) 88M (Motor Transport Operator).  He served through multiple extensions and attained the rank/grade of sergeant/E-5.

4.  On 1 March 2004, he was ordered to active duty in support of Operation Enduring Freedom for 545 days. 

5.  On 17 March 2004, he was treated in an outpatient status at Bayne-Jones Army Community Hospital, Fort Polk, LA, for an adjustment disorder.  His DA Form 2173 shows he was dealing with legal and domestic issues prior to and during mobilization that created a stressful environment.  His stress worsened as other issues arose during mobilization.  He finally sought medical treatment during sick call in March 2004.  

6.  He was seen at the Behavioral Health Department for a mental status evaluation and he was diagnosed with an adjustment disorder that did not warrant disposition through medical channels.  

7.  On 11 August 2004, he was treated in an outpatient status at Bayne-Jones Army Community Hospital, Fort Polk, LA, for chronic anal fissure.  His DA Form 

2173 shows he had had issues with hemorrhoids since 1996.  His pain became more chronic since mobilization and he finally sought medical treatment during sick call in March 2004.  

8.  He underwent right lateral anal sphincterotomy on 8 September 2004 and he responded well to the surgery and follow-on care.

9.  There is no indication his condition worsened or rendered him unable to reasonably perform the duties required of his grade and military specialty or warranted entry into the Army physical disability evaluation system.

10.  His annual Noncommissioned Officer Evaluation Report (NCOER) covering the rated period December 2003 through November 2004 for his duties as a Heavy Equipment Operator shows:

* His rater rated his performance (Values/NCO Responsibilities) as successful and his overall potential as "Fully Capable"
* He met the height and weight standards but he did not take the Army Physical Fitness Test (APFT)
* His senior rater rated his overall performance or potential as successful and superior

11.  He was honorably released from active duty on 21 December 2004 by reason of having completed his required active service.  He was transferred back to State control. 

12.  On 26 May 2005, Joint Forces Headquarters, LAARNG, published Orders 146-017 honorably discharging him from the ARNG, effective 15 April 2005, in accordance with paragraph 8-26i (expiration of term of enlistment) of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).  

13.  He received another annual NCOER covering the rated period December 2004 through November 2005 for his duties as a Heavy Equipment Operator that shows:

* His rater rated his performance (Values/NCO Responsibilities) as successful and his overall potential as "Fully Capable"
* He maintained weight fitness within Army limits
* He did not take the APFT 
* His senior rater rated his overall performance or potential as successful and superior

14.  The applicant submits his VA rating decision, dated 10 June 2006, awarding him 60% service-connected disability compensation for anxiety disorder, status post fistulotomy, and cold weather injury to his right foot. 

15.  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.  

16.  Army Regulation 635-40 defines "physically unfit" as unfitness due to physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3.  These guidelines are used to refer soldiers to a Medical Evaluation Board.  

17.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the Physical Evaluation Board rates all disabilities using the VA Schedule of Rating Disabilities.  

18.  Title 10, U.S. Code (USC), 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%.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating less than 30%.

19.  Army Regulation 135-178 establishes the policies, standard, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components (RC).  Chapter 3 states discharge will be accomplished when it has been determined that an enlisted member is no longer qualified for retention by reason of medical unfitness unless the member requests and is granted a waiver or is eligible for transfer to the Retired Reserve.  RC members who do not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, requires reservists who are eligible 

for retention on active duty due to a physical disability to submit an affidavit requesting retention on active duty.  This affidavit must be submitted prior to a reservist’s release from active duty, must be endorsed by the Medical Treatment Facility Commander, and must be approved by the commander exercising general court-martial authority.

20.  NGR 600-200 prescribes the criteria, policies, processes, procedures and responsibilities to classify; assign; utilize; transfer within and between states; provides Special Duty Assignment Pay; and separate ARNG enlisted Soldiers.  Chapter 8 provides for separation of enlisted Soldiers.  Paragraph 8-27l provides for the discharge from State ARNG and/or Reserve of the Army of Soldiers medically unfit for retention standards of chapter 3, Army Regulation 40-501.  This document provides, in pertinent part, that if a commander suspects a Soldier may not be medically qualified for retention, he or she will direct the Soldier to present him or herself for a medical examination in accordance with NGR 40-501 (Standards of Medical Fitness).  If retention is not recommended, a request for discharge will be submitted to the State Adjutant General.  

21.  Title 38, USC, 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 any VA rating does not establish error or injustice by 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.  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 contends his records should be corrected to show he was medically retired by reason of physical disability upon his release from active duty in December 2004.

2.  The purpose of the PDES is 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, and provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until the Soldier has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system. 

3.  The available evidence shows the applicant was ordered to active duty on 
1 March 2004.  During his service, he was subjected to various ailments, specifically adjustment disorder and chronic anal fissure that required attention by medical personnel.  However, nowhere in his service records does it show he suffered an injury/wound or illness that rendered him physically unfit that warranted processing through the PDES.

4.  On the contrary, upon demobilization, his assessment was that of Soldier who was fit for duty and he was able to perform his military duties.  This was further confirmed by his NCOERs for the period December 2003 through November 2004 and December 2004 through November 2005 (although it cannot be determined if the second NCOER is valid) which clearly show his rater rated his performance successful and his overall potential as fully capable and his senior rater rated his overall performance or potential as successful and superior.  Additionally, he continued to drill after his release from active duty.  These are clear indicators that show he was able to perform the duties required of his MOS and grade at the time of release from active service.  

5.  There is no evidence in his records and he did not provide any evidence that shows his VA diagnosis of anxiety disorder, status post fistulotomy, and cold weather injury to his right foot was made during a service medical examination and he was determined not to have met the medical retention standards of Army Regulation 40-501.  

6.  In any case, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and its own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA for example may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

7.  In view of the absence of sufficient medical documents and the overall circumstances in this case, there is insufficient evidence to grant the 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 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)                                         AR20110006380



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ABCMR Record of Proceedings (cont)                                         AR20110006380



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