IN THE CASE OF:	  

		BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110019513 


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 his honorable discharge be changed to a medical discharge. 

2.  The applicant states:

* He is 70% service connected from the Department of Veterans Affairs (VA)
* He had shoulder surgery that prevented him from performing his occupation while in his Army National Guard (ARNG) unit 

3.  The applicant provides:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Letters, dated 15 July 2010 and 7 September 2011, from a Member of Congress
* Letter, dated 20 May 2010, from the NGB to a Member of Congress
* Memoranda, dated 12 June 2011 and 5 April 2011, from the State Surgeon South Dakota ARNG (SDARNG)






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 enlisted in the SDARNG on 29 March 2002 for a period of 
6 years.  He trained as a combat engineer.  He served in Kuwait/Iraq from 
21 February 2004 to 20 February 2005.  

3.  He was issued a temporary profile for left shoulder pain on 5 November 2005.

4.  On 28 March 2008, he was honorably discharged for expiration of active status commitment in the Selected Reserve.

5.  He provided a letter, dated 20 May 2010, from the NGB to a Member of Congress which states that prior to the applicant's discharge, the SDARNG made several requests for medical documentation from the applicant.  The third and final request was sent by certified mail to the applicant on 6 March 2008.  He did not respond to these requests making it impossible to determine whether his condition was medically disqualifying.  Subsequently, he reached his expiration term of service (ETS) date and he was separated from the ARNG.

6.  On 15 December 2010, the ABCMR returned the applicant's application (for a medical discharge) without action because he had not appealed his request to his State Adjutant General/State Surgeon before he applied to the ABCMR. 

7.  He provided a memorandum, dated 5 April 2011, from the State Surgeon, SDARNG which states:

	a.  an administrative review of the applicant's records was conducted to include the post-deployment heath assessment, past temporary profiles, and clinical notes provided.  He underwent surgical correction for his shoulder pain on 27 February 2007.

	b.  the applicant also provided notes from the Regional Rehabilitation Institute, dated 6 March 2007, which indicated he had improving range of motion and the goal for his plan of therapy was noted as reduction of pain and improved function.  The only other document provided by the applicant was at "6 weeks post-op and doing well."  Given the notes that they had it is reasonable to state that the applicant may have some minor limitations which would have met the retention standards in accordance with (IAW) Army Regulation (AR) 40-501 (Standards of Medical Fitness).  Soldiers with limitations are "profiled" to protect further aggravation or injury.  It may have been reasonable to profile the applicant for "no pushups" or have advised his commander not to have him perform certain aspects of his duties as assigned.  Historically, Soldiers with similar conditions have been retained.

	c.  it is evident from a review of the documentation provided that the applicant at a time just prior to his ETS had an apparent limited physical impairment and strong command support implying a demonstrated ability to perform in his assigned military occupational specialty.  Taking this into consideration it is unlikely that a board process would have found him "unfit" for continued service in the SDARNG. 

8.  He provided a memorandum, dated 12 June 2011, from the State Surgeon SDARNG which states:

	a.  an administrative review of the records submitted for the applicant was conducted on 12 June 2011.

	b.  given all the clinical and administrative notes provided on behalf of the applicant it is probable that a profile restricting the "push up" event for the Army Physical Fitness Test (APFT) would have been appropriate.  There is no evidence to support that he did not meet the standards IAW AR 40-501, 
chapter 3.

	c.  it is also of interest to note that on 6 May 2007 the applicant was counseled and declined the Medical Retention Processing program which was created to assist Soldiers with ongoing medical conditions from their deployment.

	d.  the applicant's commander considered him "mission essential" in February 2007 and it is certain this continued support of the applicant would have resulted in retention in the SDARNG. 	   

9.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  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, or rank.  It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation 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 indicates that a Soldier is fit.

11.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is 70% service connected.  However, the rating action by the VA does not demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

2.  He contends he had shoulder surgery that prevented him from completing his occupation while in the ARNG unit.  Although evidence shows he underwent surgical correction for his shoulder pain on 27 February 2007, the SDARNG State Surgeon indicated there was no evidence to support he did not meet the standards IAW AR 40-501.  There is no evidence of record to show he ever had a permanent physical profile.

3.  The SDARNG State Surgeon also stated:

* it was probable that a profile restricting the "push up" event for the APFT would have been appropriate
* historically, Soldiers with similar conditions would have been retained
* the applicant had strong command support implying a demonstrated ability to perform in his assigned MOS
* it was unlikely that a board process would have found him "unfit" for continued service in the SDARNG
* on 6 May 2007, the applicant declined the Medical Retention Processing program
* his commander considered him "mission essential" in February 2007 and it is certain this continued support of the applicant would have resulted in retention in the SDARNG  

4.  Evidence shows he was honorably discharged from the SDARNG for ETS on 28 March 2008.  

5.  There is insufficient evidence to show the applicant was unable to perform his duties or he was eligible for physical disability processing prior to his discharge on 28 March 2008.  Therefore, there is insufficient evidence to show a medical discharge was warranted.

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)                                         AR20110019513



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ABCMR Record of Proceedings (cont)                                         AR20110019513



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