IN THE CASE OF:	  

		BOARD DATE:  27 March 2012

		DOCKET NUMBER:  AR20110018119 


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 separated instead of honorably discharged.

2.  The applicant states:

* he was injured by an Improvised Explosive Device (IED) in Iraq and he was subsequently evacuated out of theater
* he did not understand the medical process and he was in a haste to get out of the medical holding unit
* he was ultimately honorably released from active duty to the control of the State Army National Guard (ARNG)
* when he returned home, he was awarded a 100-percent (%) service-connected disability compensation by the Department of Veterans Affairs (VA)
* a year later, the VA lowered his rating to 40%; but neither rating allowed him to return to his ARNG unit or in an active drilling status
* he was placed on medical non-drilling status until his contract expired and he was ultimately discharged from the ARNG
* he recently took up school and tried to use his VA benefits

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Various medical forms related to his IED injury and subsequent evacuation
* Memorandum, subject:  Release from Medical Attention
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* VA rating decision

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.  The applicant was born on 10 January 1981.  He enlisted in the California ARNG (CAARNG) on 17 May 2001 and he held military occupational specialty (MOS) 31B (Military Police (MP)).  He was assigned to the 670th MP Company, CAARNG.

3.  He was ordered to active duty on 21 January 2003 and he subsequently served in support of Operation Iraqi Freedom (OIF) with the 649th MP Company.

4.  He suffered shrapnel wound to his left buttock in Iraq on 11 January 2004 and he was transferred through Landstuhl Regional Medical Center, Germany, to Madigan Army Medical Center, Fort Lewis, WA, where he was hospitalized from 19 to 21 January 2004.

5.  He was discharged from the hospital and placed on a 4-week convalescence leave with instructions regarding dressing changes by parents/nurses.  He was also placed in the Medical Holding Detachment and instructed to follow up with the General Surgery Clinic at Fort Lewis upon conclusion of his leave.

6.  A medical document, dated 25 February 2004 shows he was seen at Madigan Army Medical Center where a military doctor determined his shrapnel injury was healed and he had minimal leg symptoms of numbness.  The form also shows the applicant was doing well and could return to the ARNG but he would require additional time to become fully functional.

7.  Additionally, on 25 February 2004, the applicant’s military doctor recommended:

* It was in the best interest of the Soldier that the Army not allow the applicant to rejoin his active duty unit
* The risk to the Soldier to re-aggravate his injury was still too high
* Although he was able to perform his military MOS within the confines of his physical profile, he needed to return to his ARNG unit of record
* He also needed follow-up medical care under TRICARE, VA, and INCAP System and he was issued a temporary physical profile

8.  He was honorably released from active duty on 8 May 2004 to the control of his State ARNG.

9.  On 27 July 2004, the CAARNG published Orders 209-1052 releasing him from the 649th MP Company and reassigning him to the 560th MP Company, both of the CAARNG.

10.  He was released from the ARNG on 1 August 2006 as an unsatisfactory participant and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation (MSO).

11.  He was honorably discharged from the USAR on 19 May 2009 upon the conclusion of his MSO.

12.  The VA awarded him service-connected disability at the rates of 10% for status post-shrapnel wound, left posterior neck with residual scar; 10% for status post-shrapnel wound, left buttock; 10% status shrapnel wound, left thigh; and 10% status post-shrapnel wound, left hip.

13.  There is no indication in the applicant's record that show he suffered any illness/injury that rendered him unable to perform the duties required of his grade and/or military specialty and warranted his entry into the physical disability evaluation system (PDES). 

14.  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.  It provides for medical evaluation boards, 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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  

16.  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.

17.  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 a higher VA rating does not establish error or injustice in the Army rating.  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 does not have authority or responsibility for determining physical fitness for military service.  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.  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 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 sustained a shrapnel injury to his left buttock.  He was evacuated from theater through Landstuhl Regional Medical Center to Fort Lewis where he received treatment for his injury and he was placed on convalescence leave.

2.  A follow-up visit to the surgery clinic determined his shrapnel injury completely healed with minimal leg symptoms consisting of numbness that was migratory.  He was returned his State ARNG with the expectation of return to full function.

3.  The applicant’s injury did not render him unable to perform the duties of his grade or military specialty.  There is no evidence of record and he has not provided any evidence that shows this injury or any other medical condition, illness, or injury was diagnosed during a medical examination and he was determined not to have met the medical retention standards of Army Regulation 40-501.

4.  He now believes he should have received a disability separation because the VA granted him a service-connected disability.  However, 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 may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

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.  Here, he was rated by the VA for scaring and having been wounded.  He was not rated for any dysfunction.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110018119



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ABCMR Record of Proceedings (cont)                                         AR20110018119



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