IN THE CASE OF:	 

		BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110018330 


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 reconsideration of his earlier petition to correct his record to show he was medically retired instead of released from active duty (REFRAD).

2.  The applicant states:

	a.  he was denied consideration by a medical evaluation board (MEB) and physical evaluation board (PEB);

	b.  the Department of Veteran Affairs (VA) awarded him a combined 
70 percent (%) service connected disability rating; and

	c.  he recently received a letter that claims he requires MEB/PEB processing due to his medical issues and a physical profile.  This confirms his belief that appropriate action was not taken upon his REFRAD.

3.  The applicant provides:
 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Memorandum, dated 29 May 2011
* DA Form 3349 (Physical Profile)
* Army Discharge Review Board (ADRB) Letter, dated 15 December 2010
* VA Rating Decision, dated 3 March 2010
* Numerous medical documents

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110000479, on 25 August 2011.

2.  During its original review of this case, the Board determined:

	a.  Contrary to the applicant's claim, his available records did not contain any evidence to show he suffered from any medically unfitting conditions that warranted his separation processing through medical channels.

   b.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exist and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  As a result of the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of his or her medical separation processing, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.
   
   c.  Although the applicant was placed on a physical profile, his records contained no evidence to show he was unable to perform the duties of his office, grade, rank, or rating as evidenced by his continued performance of active and inactive duty training and his latest Officer Evaluation Report which showed he performed his duties in an outstanding manner.
   
3.  The applicant's military record shows he was appointed a Reserve commissioned officer in the rank of second lieutenant (2LT) in the Field Artillery Branch on 21 May 2004.  He entered the Regular Army on 10 June 2004 and he was honorably released under the provisions of Army Regulation 600-8-24, paragraph 3-5 on 30 September 2009.

4.  The DD Form 214 issued to the applicant on 30 September 2009 shows:

* he completed 5 years, 3 months, and 21 days of creditable active duty service
* he had a Reserve Obligation Termination Date of 20 May 2012
* he was transferred to a Troop Program Unit


5.  The applicant's record is void of any medical treatment records or other documents that indicate he was treated for any disabling or disqualifying (unfitting) conditions prior to discharge from active duty.

6.  His new evidence includes:

   a.  Numerous medical record extracts that document the medical treatment he received while on active duty.  A Standard Form 600 (Chronological Record of Medical Care), dated 21July 2009, includes the results of his separation examination physical which shows:
   
* he was released without limitations
* he was instructed to follow up with his primary care manager as needed
* he denied any listed medical conditions would limit his functional capacity within his military specialty or deployability
* he was cleared for separation and recommended for VA evaluation

b.  A VA rating decision, dated 3 March 2010, which shows he was denied service connection for major depressive disorder, tinnitus, and "deviated nasal septum, status post septoplasty."  However, he was granted an overall combined disability rating of 70% based on the following conditions:

sleep apnea with restless leg syndrome
10%
left shoulder subacromial bursitis and mild impingement syndrome, dominant
10%
lumbar strain, L5-S1, with spondylosis, 
10%
left wrists de Quervain's tenosynovitis, dominant
10%
left knee retropatellar pain syndrome
10%
left hip torchanteric bursitis
10%
anxiety disorder 
10%
irritable bowel syndrome (IBS) and gastroesphageal reflux disease (GERD)
0%
topical perioral dermatitis 
0%
left foot plantar mid-dorsum strain
0%

   c.  A DA Form 3349, dated 11 May 2010, shows he was issued a permanent profile based on "low back, joint pain, sleep apnea, and depression and anxiety.
   
   d.  Headquarters, 88th Regional Support Command (RSC), Memorandum, dated 29 April 2011, which shows the RSC's Surgeon's office indicated he
might have a medically disqualifying condition in accordance with Army Regulation 40-501.  It shows, among other options, the applicant was authorized processing through the Army Physical Disability Evaluation System (PDES) which he elected on 8 May 2011.

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 or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

8.  Paragraph 2-2b of the same regulation provides guidance on presumptions of fitness and states, in pertinent part, that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness that can be overcome only by clear and convincing evidence that he was unable to perform his duties.

9.  Title 38, U.S. Code, 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 he should have been medically retired from active duty.  However, there is insufficient evidence to support this claim.

2.  By regulation, a member's continued performance of duty creates a presumption of fitness that can be overcome only by clear and convincing evidence that he was unable to perform his duties, and separation/retirement by reason of disability requires processing through the PDES.

3.  The evidence of record includes the applicant's separation physical examination report that confirms he was cleared for separation.  In addition, the medical documents and records provided by the applicant confirm he was treated for multiple medical conditions; however, the available evidence failed to show that any of his medical conditions rendered him unfit to perform his military duties or that he was disqualified for further service at the time of release from active duty.  Further, the applicant confirmed none of his listed medical conditions limited his functional ability to perform his duties or rendered him non-deployable.

4.  Further, it appears the applicant believes he should have received a medical retirement because the VA granted him service-connected disability compensation with a 70% disability rating.  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.  Finally, the new evidence confirms the applicant was informed he has medical conditions that could possibly disqualify him for retention in the USAR.  Accordingly, he was offered and elected medical processing through the PDES.  The applicant is advised to make every effort to ensure he receives this processing through his chain of command prior to his anticipated discharge from the USAR on 20 May 2012.

6.  In view of the forgoing, there is no basis upon which to grant the requested relief in this case.


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 to amend the decision of the ABCMR set forth in Docket Number AR20110004769, dated 25 August 2011.




      _______ _   _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)                                         AR20110018330



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ABCMR Record of Proceedings (cont)                                         AR20110018330



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