IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110018555 


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 to have a medical board and entitlement to full retirement.

2.  The applicant states:

* he had disabilities that made him non-deployable
* he completed over 32 years of service with more than 7,200 retirement points
* he requested this action when applying for retirement
* he was informed by his higher command that his retirement packet had been misplaced and had to be resent
* by this time items were missing and his unit rushed to get it done
* he was transferred to the Retired Reserve and told nothing could be done

3.  The applicant provides:

* Orders 10-145-00051 (Retired Reserve)
* DA Form 4651 (Request for Reserve Component (RC) Assignment or Attachment - Request for Assignment to the Retired Reserve Checklist)
* memorandum transferring him to the Individual Ready Reserve (IRR)
* Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points)
* Personnel Qualification Record
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* 
DA Form 4856 (Developmental Counseling Form)
* Department of Veterans Affairs (VA) rating decision with allied documents, medical forms, evaluations, checklists, and various civilian and/or service medical records throughout his military service

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 23 March 1957.

2.  Having prior enlisted service, he was appointed as a Reserve warrant officer of the Army and executed an oath of office on 11 January 1991.  He held military occupational specialties (MOS) 140D (Hawk Missile System Technician) and 140E (Patriot Missile System Technician).

3.  He was appointed in the New Mexico Army National Guard (ARNG) on 14 May 1994.  He was later discharged from the ARNG on 22 April 1997 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

4.  He served in a variety of stateside and/or overseas assignments in MOS 915 (Maintenance Officer) and he attained the rank of chief warrant officer four.

5.  On 17 March 2005, the U.S. Army Human Resources Command, St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60.

6.  He was ordered to active duty in support of Operation Iraqi Freedom on 3 July 2006 and served in Kuwait/Iraq from 7 September 2006 to 25 August 2007.  He was honorably released from active duty on 25 September 2007 by reason of completion of his required service.

7.  On 20 November 2009, he requested to be medically retired effective 14 February 2010 due to medical disabilities that rendered him non-deployable.

8.  Consistent with his chain of command's recommendations, Headquarters, 63rd Regional Support Command, Moffett Field, CA, published 
Orders 10-145-00051, dated 25 May 2010, transferring him to the Retired Reserve effective 25 May 2010.

9.  Between January 2003 and May 2010, the applicant:

* received multiple officer evaluation reports – in each case his rater rated his performance as outstanding and his senior rater rated him as best qualified
* mostly passed the Army Physical Fitness Test and met the height and weight standards
* received multiple awards and decorations for achievement or service
* deployed to Kuwait/Iraq
* performed duties in various troop program units and was actively participating in unit training assemblies and annual training
* accrued sufficient points for each retirement year to be designated as a qualifying year for retirement

10.  The VA awarded him service-connected disability compensation at the rate of:

* coronary artery disease associated with diabetes – 60 percent, effective March 2008
* type II diabetes – 20 percent, effective March 2008
* left knee degenerative arthritis – 10 percent, effective September 2007
* tinnitus – 10 percent, effective September 2007
* hypertension – 10 percent, effective March 2008
* erectile dysfunction – 0 percent, effective March 2008

11.  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.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits:

* the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training
* the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence

	a.  Paragraph 3-1(d) states that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (worldwide deployability) will not serve as the sole basis for a finding of unfitness.

	b.  Paragraph 3-2b states that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of a disability.

12.  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, a physical evaluation board rates all disabilities using the VA Schedule of Rating Disabilities.

13.  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 of less than 30 percent.

14.  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 VA does not have the 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 served in the USAR as a warrant officer between January 1991 and May 2010.  There is no evidence in his records that shows he suffered an injury or an illness that was incurred in the line of duty and was later determined to have rendered him unable to perform the duties required of his grade or military specialty.  On the contrary, his officer evaluation reports, deployment, awards, and overall record clearly show his performance was outstanding and his potential was among the best.

2.  The VA awarded him service-connected disability for various conditions.  However, unlike the VA, 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.  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 a medical condition related to service (service connected) affects the individual's civilian employability.

3.  In view of the foregoing evidence, the applicant is not entitled to 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)                                         AR20110018555



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ABCMR Record of Proceedings (cont)                                         AR20110018555



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