IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110014866 


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) to show he was discharged for medical reasons. 

2.  The applicant states:

* He was assaulted on 9 August 2009 by another Soldier and he received severe head trauma that caused severe headaches and memory loss
* He was treated by a military doctor at Landstuhl Regional Medical Center in Germany and he was also treated by a doctor for traumatic brain injury (TBI)
* He has also been on many different medications and treatments at the Department of Veterans Affairs (VA) which awarded him a 40-percent (%) service-connected disability rating
* He still suffers from memory loss and severe headaches
* He was never given an opportunity to appear before a medical board

3.  The applicant provides his DD Form 214 and VA rating decision.

CONSIDERATION OF EVIDENCE:

1.  On 9 January 2007, the applicant enlisted in the Regular Army for 3 years and 17 weeks and held military occupational specialty (MOS) 13B (Cannon Crewmember).  

2.  He completed 2 years, 11 months, and 9 days of foreign service in Europe during which time he deployed to Kuwait/Iraq from 10 April 2008 to 22 May 2009. He was promoted to sergeant (SGT)/E-5 on 1 May 2009. 

3.  His annual Noncommissioned Officer Evaluation Report (NCOER) covering the rated period 1 May 2009 through 28 March 2010 for his duties as an Operations NCO in Charge, Service Battery, 1st Battalion, 84th Field Artillery shows:

* His rater rated his competence (duty proficiency, MOS competency, and technical and tactical skills) as excellent
* His rater also rated his performance (Values/NCO Responsibilities) as successful or excellent and his overall potential as "Among the Best"
* He met the height and weight standards and passed the Army Physical Fitness Test
* His senior rater rated his overall performance or potential as successful and superior

4.  He was honorably released from active duty on 7 May 2010 by reason of having completed his required active service and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation. 

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.  He submitted a copy of his VA rating decision, dated 4 November 2010, that awarded him a 40% service-connected disability rating for TBI, claimed as migraine headaches and memory loss.  

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 office, grade, rank, or rating.  

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

9.  Army Regulation 40-501 (Standards of Medical Fitness) 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 physical evaluation board rates all disabilities using the VA Schedule of Rating Disabilities.  

10.  Title 10, U.S. Code (USC), 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%.  Title 10, USC, 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%.

11.  Title 38, USC, 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 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 release from active duty in May 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 disability evaluation if otherwise eligible for referral into the disability system. 

3.  The available evidence shows he served on active duty from January 2007 to May 2010.  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 PDES.

4.  On the contrary, the evaluation report rendered by his chain 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 his VA diagnosis of TBI was made during a service medical examination and he was determined not to have met the medical retention standards of Army Regulation 40-501.  In any case, an award of a rating by another agency does not establish 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 for example may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

6.  In view of the absence 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 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)                                         AR20110014866



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110014866



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1