IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20110006789 


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 change of the narrative reason for his 1999 discharge on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from "honorable" to "medical." 

2.  The applicant states that the change is needed to correct an injustice caused by the Army in order to reflect his permanent and total disability based on the individual un-employability awarded by the Department of Veterans Affairs (VA).  It will help compensate him for those years that the VA does not cover on what is owed to him and his family.

3.  The applicant provides:

* VA rating decisions, dated 18 December 2009, 17 March 2010, 12 April 2010, and 6 January 2011
* VA letter, dated 9 February 2011
* VA Forms 21-4138 (Statements in Support of Claim), dated 10 March 2011
* VA Form 21-674 (Request for Approval of School Attendance), dated 28 January 2011
* VA Forms 21-4140 (Employment Questionnaire)
* VA neurology consultation reports, dated throughout 2010
* VA orthopedic consults, dated throughout 2010
* Civilian emergency room record, dated 15 December 2010
* Social Security Administration letter, dated 15 December 2010
* VA Form 9 (Appeal to Board of Veterans Appeals)
* VA diagnostic radiology reports, dated throughout 2010
* VA compensation and pension (C&P) reports
* VA Forms 21-4192 (Request for Employment Information in Connection with Claim for Disability Compensation)
* VA Form 21-526 (Veterans Application for Compensation and/or Pension), dated 30 July 2009
* Various civilian medical documents (Busch Agricultural Resources), dated throughout 2009
* Various civilian medical documents (MeritCare Medical Center), dated throughout 2009
* Other civilian medical documents, charts, cardiovascular diagnosis, blood work, screening records, and x-ray readings (Cooperstown Medical Center), dated throughout 2007
* Son's death certificate
* Standard Form (SF) 88 (Report of Medical Examination), dated 19 May 1999
* SF 93 (Report of Medical History), dated 19 May 1999
* Radiological examination report, dated 2 June 1999
* Patient laboratory inquiry from 2 February to 2 June 1999
* DD Form 2697 (Report of Medical Assessment), dated 19 May 1999

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 19 September 1989 and held military occupational specialty (MOS) 45B (Small Arms Repairer).  He served through multiple extensions or reenlistments, within and outside continental United States, including Southwest Asia from August 1990 to April 1991 and Germany from September 1991 to September 1993.

3.  He was promoted to specialist (SPC)/E-4 on 1 December 1991, reduced to private first class/E-3 on 4 August 1993, and again promoted to SPC/E-4 on     19 February 1994.

4.  On 16 April 1999, the applicant's son died.  The death certificate shows the cause of death of the minor child was entanglement in tethering leash of a neighbor's pet dog.

5.  On 19 May 1999, the applicant completed a report of medical assessment.  He indicated that he previously had a cat bite and had surgery on his left hand.  He also had back pains, colds, vasectomy, and stitches.  He indicated he had frequent trouble sleeping, depression or excessive worry, and nervous trouble.  

6.  Also on 19 May 1999, he underwent a separation physical at Womack Army Community Hospital (WAMC), Fort Bragg, NC.  He indicated he had a scar to his left hand middle finger and other scars to his hands and knuckles.  The attending physician noted, "Recent death of child - often is depressed but appropriate not suicidal" but found the applicant was medically qualified for separation.

7.  On 2 June 1999, he underwent chest x-rays at WAMC.  His radiological examination report noted normal screening of the chest.

8.  The complete facts and circumstances of his discharge are not available for review with this case.  He may have reached his retention control point.  He was honorably discharged under the provisions of paragraph 16-5b of Army Regulation 635-200 by reason of non-retention on active duty.  He was honorably discharged on 18 October 1999.  He had completed 10 years, 1 month, and      18 days of creditable service.   

9.  There is no indication in his records that shows he sustained a disabling illness or injury or that he was issued a permanent physical profile that restricted his duties and/or assignments or that warranted his referral to the Physical Disability Evaluation System (PDES).  

10.  After a break in service, in November 2004, he underwent an entrance physical examination at the Des Moines Military Entrance Processing Station for the purpose of reentering the service.  His DD Form 2808 (Report of Medical Examination) shows he was fully qualified for service.

11.  He enlisted in the U.S. Army Reserve (USAR) for a period of 3 years on 10 February 2005.  He was assigned to a troop program unit, the 372nd Engineer Group, Des Moines, IA.

12.  He successfully completed the 7-week Human Resources Specialist Course from 8 April to 26 May 2005, and he was awarded MOS 42A.  He also completed, exceeding the course standards, the 2-week Primary Leadership Development Course (PLDC) from 16 July to 30 July 2005. 

13.  On 28 July 2005, while attending PLDC, he received ant bites on his elbow.  He went on sick call and he was seen by medical personnel.  The stung area was cleaned and he was given instructions regarding follow-up.  He was released to duty with no further complications. 

14.  On 25 August 2008, he was honorably discharged from the USAR by reason of completing his enlistment commitment.  He had been held beyond his expiration term of service for the convenience of the government.  

15.  He submitted a copy of his son's death certificate, and: 

	a.  Multiple VA rating decisions, dated 18 December 2009, 12 April 2010, 17 March 2010, and 6 January 2011 that show he was awarded service-connected disability compensation based on individual civilian unemployability.  The most recent VA rating decision, dated 6 January 2011, shows award of service-connected disability compensation for post-traumatic stress disorder (PTSD) and major depressive disorder, tinnitus, migraine headaches, and left hand pain.  He was granted an 80% combined evaluation for compensation for individual un-employability effective 31 July 2009.

	b.  Multiple VA letters, statements, claims, questionnaires, neurology consultation reports, orthopedic consults, civilian emergency room record, 
diagnostic radiology reports, compensation and pension (C&P) reports, various civilian medical documents, charts, cardiovascular diagnosis, blood work, screening records, and x-ray readings related to his VA applications. 

16.  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 or her office, grade, rank, or rating.  

17.  Army Regulation 635-40 states 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 physical disability incurred or aggravated in service.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

18.  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 rating of at least 30 percent.  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 rating at less than 30 percent.

19.  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 higher VA rating does not establish an error or injustice on the part of 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.  As a result, the VA may grant a disability rating even if the Army never found the member was unfit for duty.  Also 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 served on active duty from 19 September 1989 to 18 October 1999.  Prior to his discharge, he underwent a separation physical.  It is acknowledged that he indicated he had frequent trouble sleeping, depression or excessive worry, and nervous trouble and the attending physician noted, "Recent death of child - often is depressed but appropriate not suicidal."  However, the applicant was found to be medically qualified for separation.  There is no evidence to show he ever had such a disabling medical condition that it prevented him from performing his military duties.  

2.  In fact, the applicant was sufficiently medically fit to enlist in the USAR in February 2005.  He successfully served in the USAR, completing two military courses during this service and even completing a leadership course by exceeding course standards.

3.  It is acknowledged that the applicant served in Southwest Asia during Operation Desert Storm and that he suffered the tragic death of his young son.  However, there is no evidence in the available records and the applicant did not provide any evidence that shows he was diagnosed with a medical condition or impairment that restricted him from performing the duties required of his grade or specialty at any time and that would have warranted his entry into the PDES.  

4.  The applicant petitioned the VA for award of service-connected disability compensation for various conditions, and after undergoing several VA-sponsored or civilian medical examinations the VA awarded him disability compensation for PTSD and major depressive disorder, tinnitus, migraine headaches, and left hand pain, based on individual civilian unemployability.  However, the Army’s disability processing is dependent on the existence and severity of a condition at the time of separation.  

5.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time, or any new conditions that arise, by adjusting or granting a disability rating.  However, military 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 physical disability incurred or aggravated in service.  There simply is no evidence to show the applicant's military service was affected by any medical conditions he may have had.

6.  Regrettably, the applicant failed to submit evidence that shows he was physically unfit during his active service.  He has not shown error, injustice, or inequity for the relief he requests.  Therefore, there is insufficient evidence on which to base the relief requested.

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.




      _______ _ XXX_____   ___
               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)                                         AR20110006789



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ABCMR Record of Proceedings (cont)                                         AR20110006789



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