IN THE CASE OF:	  

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110013937


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, in effect, correction of his records to show he was medically discharged instead of honorably discharged.

2.  The applicant states:

* his complete medical records were not present at the time of his separation physical exam due to his recent return from deployment
* his separation physical consisted of a brief examination by U.S. Air Force personnel who showed their lack of professionalism by failing to use U.S. Army paperwork, record his complaints, or examine him thoroughly
* the Department of Veterans Affairs (VA) granted him a 40-percent service-connected disability effective the day after his date of separation
* the physical exams he underwent to determine his percentage of disability were conducted at the same time as his separation physical exam
* he continues to require care from his local VA medical center

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 February 2010
* VA Rating Decision, dated 15 June 2010
* 58 pages of medical documentation from the Veterans Health Information Systems and Technology Architecture (VistA) medical database [essentially, his electronic treatment record maintained by the VA]
* volumes of military medical documentation in the form of Department of Defense forms, Department of the Army forms, Standard Forms, local forms, and photocopied images of an unknown source

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 May 2001.  He completed training and was awarded military occupational specialty (MOS) 68W (Health Care Specialist).  The highest rank/grade he attained while serving on active duty was staff sergeant/E-6.

2.  His records show he deployed to Iraq in support of Operation Iraqi Freedom during the period 11 December 2008 through 25 November 2009.

3.  His record contains a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) covering the rated period 1 November 2008 through 31 October 2009 while assigned to Medical Task Force 10 forward deployed to Iraq.  This report shows:

* he served as an emergency care NCO; specifically, as the Assistant NCO in Charge (NCOIC) of a combat support hospital (CSH)
* his rater rated his competence, physical fitness and military bearing, leadership, and training as excellent
* he met the height and weight standards and he passed the Army Physical Fitness Test by achieving the maximum possible score of 300
* his rater rated his overall performance and potential as "Among the Best"
* his senior rater rated his overall performance and potential as successful and superior

4.  He was honorably discharged on 9 February 2010 by reason of having completed his required active service.  His DD Form 214 shows he was credited with completion of 8 years, 8 months, and 18 days of net active service during this period of enlistment.

5.  His service medical records are not available for review with this case.  Additionally, his available records do not show he was injured or wounded, received treatment, issued a permanent physical profile, or had any conditions that warranted his entry into the Physical Disability Evaluation System (PDES).

6.  The applicant submits his VA Rating Decision, his VistA electronic treatment record, and a portion of his Army medical record as evidence.

	a.  His VA rating decision, dated 15 June 2010, shows he was granted service-connected disability compensation for:

* post-traumatic stress disorder
* status post-anterior cruciate ligament/medial collateral ligament reconstruction of his left knee with scar and degenerative joint disease
* degenerative arthritis of his right knee
* degenerative arthritis of his lumbar spine

	b.  His VistA electronic treatment record documents the treatment he received at VA medical centers since his discharge from the Army.

	c.  His active duty health record does not contain any documents that direct his referral to an MOS Medical Retention Board, medical evaluation board (MEB), or physical evaluation board (PEB).

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.

8.  Army Regulation 635-40 defines "physically unfit" as unfitness due to physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states 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(Standards of Medical Fitness), chapter 3.  These guidelines are used to refer Soldiers to an MEB.

9.  Army Regulation 40-501 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 PEB rates all disabilities using the VA Schedule of Rating Disabilities.

10.  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.

11.  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.  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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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 separated by reason of physical disability upon his discharge from active duty in February 2010.

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 he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral to the PDES.

3.  The available evidence shows he served on active duty from May 2001 to February 2010.  His service medical records are not available for review with this case.  His available records do not show he was injured or wounded, received treatment, issued a permanent physical profile, or had any conditions severe enough to warrant his entry into the PDES.

4.  On the contrary, the NCO evaluation report rendered by his chain of command clearly shows him as a fully-capable Soldier who excelled in the performance of his MOS.  His rater rated his competence as excellent and his senior rater rated his overall performance or potential as successful and superior. 
Nowhere in his service records does it show he suffered an injury/wound or illness that rendered him physically unfit or unable to reasonably perform the duties required of his military grade and specialty or that warranted processing through the PDES.

5.  There is no evidence in his records and he did not provide any evidence that shows he was determined not to meet the medical retention standards of Army Regulation 40-501 during a service medical examination.

6.  In any case, an award of a rating by another agency does not establish an 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 may award ratings because of a medical condition related to service (service-connected) that affects an individual's potential for civilian employability.

7.  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.

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 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)                                         AR20090011583



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013937



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1