BOARD DATE:	    22 December 2011

		DOCKET NUMBER:  AR20110009737 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 October 2009 to show he was medically retired due to a permanent disability instead of released from active duty upon completion of required active service.

2.  The applicant states following his second deployment to Iraq, he was placed on medical hold for evaluation.  He further states he has service-connected and combat-related injuries dating back to 2000 which were incurred during his first tour in Iraq.  The injuries were further aggravated and required treatment before being released from active duty.  The treatment he received while on medical hold was inadequate and his symptoms and injuries were not properly diagnosed.  Following his release he was diagnosed and treated by civilian practitioners.  In addition, the Department of Veterans Affairs (DVA) evaluated his injuries and awarded a commensurate disability rating.  Based on the DVA's medical examinations, he believes a Physical Evaluation Board (PEB) should have been convened during his demobilization and he should have been awarded a medical retirement.

3.  The applicant provides:

* Orders 10-320-00012
* DD Form 214 
* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* ARPC Form 249-E (Chronological Statement of Retirement Points)

* Miscellaneous Health Records
* DVA Rating Decisions

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant’s records show he was appointed/commissioned as a warrant officer in the U.S. Army Reserve and entered an active duty status effective 3 August 1995.  He was honorably released from active duty on 20 September 2003 in the rank of chief warrant officer two (CW2)/W-2.  His DD Form 214 shows he was released from active duty due to completion of required active service.  He completed 8 years,
1 month, and 18 days of creditable active service during this period.

2.  On 25 January 2009, the applicant was mobilized in support of Operation Iraqi Freedom in the rank/grade of chief warrant officer three (CW3)/W-3 and subsequently served in Iraq for the period 3 April through 9 August 2009.

3.  His record contains a DA Form 67-9 (Officer Evaluation Report) with a reporting period of 25 January 2009 through 14 July 2009.  This form was used to evaluate the applicant while he was mobilized in support of Operation Iraqi Freedom.  The report shows the applicant was exempt from the Army Physical Fitness Test due to receiving a physical profile effective 6 July 2009.  His records do not contain nor did he provide a copy of the profile.  The applicant received an “outstanding performance, must promote” rating from his rater and was rated as “best qualified” by his senior rater during this period.  

4.  On 10 September 2009, the applicant received his notification of eligibility for retired pay at age 60 (Twenty Year Letter).  On 16 December 2010, the applicant was assigned to the Retired Reserve.  Orders 10-320-00012, dated                    16 November 2010, show the applicant had completed 20 or more years of qualified service for retired pay at age 60.  

5.  The applicant's service medical records are not available for review and there is no evidence in the available service records which show he sustained a disabling medical condition, was issued a permanent physical profile, or that he underwent a medical evaluation with subsequent referral to a medical board; however, he submits selected documents as follows:

	a.  A DVA rating decision, dated 25 March 2010, awarding him 10% service connected disability compensation for degenerative disk disease, cervical spine, with herniation and stenosis, effective 7 October 2009.  Service connected disability compensation for degenerative disk disease, and lumbar spine, rated at 10%, effective 7 October 2009; and 20% service connected disability compensation for sciatica, left lower extremity, effective 7 October 2009. 

	b.  DA Form 3349 (Physical Profile), dated 14 December 2009, which indicates a temporary 90-day profile for a bulging disk.   

	c.  Multiple Standard Forms (SF) 600 (Chronological Record of Medical Care) from the period 2006 through 2009 which reveal the applicant was seen for a number of ailments to include but not limited to a back injury.  The applicant received treatment to include physical therapy and received periodic temporary physical profiles.

    d.  Clinical documentation from the Mayo Clinic which summarizes a diagnosis of chronic pain syndrome, mechanical neck, and lower back pain, and ulnar impaction syndrome on the left.

6.  The applicant’s physical data resident on the Army Human Resources Command Integrated Web Services portal shows his last physical was taken on 14 December 2009 and contained a Military Physical Profile Serial System rating of “112111.”

7.  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.  It provides for Medical Evaluation Boards (MEB) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  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 a physical disability incurred or aggravated in service.  This regulation also states the following:

	a.  Paragraph 2-1 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  Paragraph 2-2b(1) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty (until he is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraph 2-2b(2) states that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.

8.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in the military service

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 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.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA 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 DVA 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 DVA 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’s contention that based on the findings of the DVA and medical examinations, a PEB should have been convened and potentially a medical retirement should have been awarded has been carefully considered.  However, there is insufficient evidence to support his claims.  

2.  There is no evidence in the available records and the applicant did not provide sufficient evidence which shows he was diagnosed with a medical condition which would have warranted his entry into the PDES.  

3.  He now believes he should have received a medical discharge for various medical conditions due to being granted a DVA disability rating for service connected injuries.  However, an award of a rating by another agency, such as the DVA, does not establish error on the part of the Army.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical fitness for military service.  The DVA may award ratings because of a medical condition related to service (service connected) that affects the individual's civilian employability.  For example, the DVA may award an applicant a disability rating for bronchitis even though the condition may not have rendered him unable to perform his Army duties.

4.  The PDES provides that 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 a physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform based on the Soldiers office, grade, rank, or rating.
5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant appears to have been physically or medically fit at the time of his release from active duty (as shown by his Officer Evaluation Report for the period ending 14 July 2009 and the physical data resident on the Army Human Resources Command Integrated Web Services portal which shows his last physical was performed on 14 December 2009 and contained a Military Physical Profile Serial System rating of “112111”) and at the time of his December 2010 assignment to the Retired Reserve.  In view of the lack of sufficient medical documents and the overall circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20110009737



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ABCMR Record of Proceedings (cont)                                         AR20110009737



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