IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110011674 


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 records to show he was medically retired.

2.  The applicant states an injustice was done because even though he was in medical hold for 6 months and his injuries were determined to be in the line of duty, he was never offered the opportunity to be processed through the Physical Disability Evaluation System (PDES).

3.  The applicant provides:

* Orders Number 041-271, issued by the State of South Carolina Military Department, Office of the Adjutant General, Columbia, SC, dated
10 February 2003
* U.S. Army Medical Department Activity, Fort Stewart, GA memorandum, dated 15 March 2004
* Orders Number 85-435, issued by Headquarters, 3rd Infantry Division (Mechanized), Fort Stewart, dated 25 March 2004
* Standard Form (SF) 600 (Chronological Record of Medical Care), dated 
9 April 2004
* DA Form 4187 (Personnel Action), dated 20 May 2004
* Orders A-06-406146, issued by the U.S. Army Human Resources Command, Alexandria, VA, dated 24 June 2004
* Memorandum, subject:  Line of Duty (LOD) Investigation, dated 15 July 2004
* 1st Endorsement, subject:  Delegation of LOD Investigation Final Approval, dated 22 July 1998
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 September 2004
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 10 September 2005
* Department of Veterans Affairs (VA) letter (rating decision), dated 
3 August 2010

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. On 11 September 1984, the applicant enlisted in the South Carolina Army National Guard (SCARNG).

3.  The applicant's medical records were not available for review; however, the applicant provided extracts of medical documents with his application.

4.  He provided documents that show during his period of service he:

	a.  On or about 17 February 2003, he deployed in support of Operation Enduring Freedom;

	b.  On 15 March 2004, he was assigned to the U.S. Army Garrison Holding Battalion, Fort Stewart, for medical processing;

	c.  On 9 April 2004, he was seen at the Outpatient Psychiatry/Psychology Clinic, Fort Stewart;


	d.  On 16 June 2004, his duty status was changed from "partial mobilization" to "medical retention processing" in order to complete medical treatment and care and he was retained on active duty effective 17 June 2004; 

	e.  On 15 July 2004, his injury/medical condition was determined to be in the LOD;
	
   f.  On 22 September 2004, he was honorably released from active duty at the completion of required service and he was transferred back to his SCARNG unit.  He was issued a DD Form 214 for his period of active service from 10 February 2003 through 22 September 2004; and

	g.  He was honorably discharged from the SCARNG effective 10 September 2005 and he was transferred to the Retired Reserve.

5.  In addition, he provided a VA letter that shows he received a combined rating of 80 percent (%) for the following service-connected disabilities:

* Degenerative Arthritis of the Spine						20%
* Residuals of Foot Injury									10%
* Post Traumatic Stress Disorder							50%
* Limitation of Motion, Index or Long Finger				10%
* Limited Motion of Wrist										10%

6.  There is no evidence in the available records showing he had a medical condition warranting appearance before either a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB).

7.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

8.  Title 38, U.S. Code, sections 310 and 331, permit 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 physically 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.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that those members who do not meet medical retention standards will be referred to a PEB to determine whether they are physically unfit to perform their duties and if found unfit, to determine the percentage of disability to be awarded.  This regulation also states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

10.  Army Regulation 635-40 further provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments.

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances of his discharge/medical processing are not available for review.  Lacking evidence to the contrary, it must be presumed that his discharge was conducted in accordance with law and regulations.

2.  The applicant contends he was not offered the opportunity to have his medical condition evaluated by the PDES; however, he has provided no evidence which shows his medical condition was considered physically unfitting for military service at the time of processing for separation, or that said conditions warranted further evaluation through the PDES.

3.  It is acknowledged that medical conditions may worsen over time and the VA has the responsibility and jurisdiction to recognize any changes in conditions over time by awarding a disability rating; however, VA's rating does not entitle an individual to a medical retirement.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110011674



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ABCMR Record of Proceedings (cont)                                         AR20110011674



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