BOARD DATE: 1 December 2011
DOCKET NUMBER: AR20110008556
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 his release from active duty (REFRAD) be changed to retirement by reason of physical disability.
2. The applicant states:
* he was deployed to Iraq for 15 months
* upon redeployment, he wanted a medical retirement
* his chain of command would not assist him, telling him the Department of Veterans Affairs (VA) would take care of him
* he was REFRAD
3. The applicant provides:
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two VA Rating Decisions, dated 24 and 30 November 2009
* VA letter, dated 16 September 2009
* VA letter, dated 3 March 2011
CONSIDERATION OF EVIDENCE:
1. The applicant served in the Regular Army from 9 October 2003 through 7 May 2008, a period of 4 years, 6 months, and 29 days. He was an Automated Logistical Specialist, military occupational specialty (MOS) 92A2O.
2. The applicant served in Iraq from 8 August 2004 through 25 July 2005, and from 15 October 2006 through 29 December 2007.
3. His noncommissioned Officer Evaluation Report (NCOER) for the period ending 31 October 2007 shows he was noted as "success" or "excellence" in all areas of NCO values/responsibilities.
4. The applicant's DD Form 214 shows:
* in item 23 (Type of Separation) REFRAD
* in item 25 (Separation Authority) AR 635-200, Chap 4
* in item 26 (Separation (SPD) Code) MBK
* in item 27 (Reentry Code) 1
* in item 28 (Narrative Reason for Separation) Completion of Required Service
5. In a DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDRB) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States) the applicant claims to have been assaulted by a fellow Soldier in October 2005 who struck him in the face, knocking him unconscious and knocking out his front teeth. He also claims he jumped "six flights of stairs" during a mortar/rocket attack and tore his right knee, fell and struck the back of his head, knocking himself unconscious.
6. The applicant's Interactive Personnel Electronic Records Management System (iPERMS) files do not contain any information concerning his medical condition or any injuries he may have suffered. His account of his injuries cannot be verified by his service records.
7. The applicant provides VA documents showing evaluation for:
* post traumatic stress disorder (PTSD) rated 50% as of 5 February 2009
* asthma rated 30%
* sprained anterior cruciate ligament and medial meniscus rated 10%
* traumatic brain injury (TBI) rated 0%
* scar status post facial laceration rated 0%
* overall rating of 70%
8. Title 10, U.S. Code, chapter 61, 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, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in
chapter 61 and in accordance with Department of Defense 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 service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected
b. Soldiers are referred to the PDES:
* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, Human Resources Command
c. The PDES assessment process involves two distinct stages: the Medical Evaluation Board (MEB) and the Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service members injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of unfit for duty is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.
d. 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 reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.
9. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. 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, these two Government agencies, operating under different policies, may arrive at a different results for disability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability up or down based upon that agency's examinations and findings.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests his REFRAD be changed to physical disability retirement.
2. Every document in the applicant's iPERMS file shows he was separated without any hint of a disability. There are no documents in his iPERMS file to show he was ever referred to the PDES for disability evaluation.
3. The applicant contends he sought PDES evaluation, but was rebuffed by his chain of command. Individual Soldiers do not self-refer to the PDES; they are referred into the PDES system when they no longer meet Medical Retention Standards as evidenced in a medical evaluation board; receive a permanent medical profile, and are referred by an MOS/Medical Retention Board; are command-referred for a fitness for duty medical examination; or referred by the Commander, Human Resources Command. None of this occurred in the applicant's case.
4. The applicant's post-service rating by the VA does not mean he was disabled while he was on active duty and is not grounds for approving his request.
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) AR20110008556
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