IN THE CASE OF: 

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20110020441 


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, in effect, correction of her records to show:

* she was discharged due to a service-connected disability
* entitlement to Post-9/11 GI Bill benefits

2.  The applicant states that:

* her Army National Guard (ARNG) discharge orders need to be amended or some type of report needs to be given to the Department of Defense (DOD) so it can correct her information on file
* her separation orders only state she has a medical discharge with entitlement to disability severance pay with a 20-percent disability rating because this is stated on the Army orders
* she has a 20-percent disability rating from the Army and currently a 
0-percent disability rating from the Department of Veterans Affairs (VA) for service connection
* in order for her to receive benefits as a "service-connected Soldier," the DOD system and her orders need to be properly documented showing "service-connected," not just a general medical discharge
* on 19 October 2010, the VA was advised by DOD that "claimant received a medical discharge on 18 February 2010"
* the VA does not have enough proof from DOD showing she should be approved for the Post-9/11 GI Bill for 100 percent of the benefits due as a result of her service-connected disability
* it is quite frustrating to have such a small problem holding her back from receiving the benefits to which she is entitled
* it has been 2 years and 3 months since she requested Post-9/11 GI Bill benefits
* she has several months' worth of unnecessary school loans and at least a year's worth of the housing stipend that could have been received had things been handled properly the first time

3.  The applicant provides:

* self-authored statements
* DD Form 214 (Certificate of Release or Discharge from Active Duty) effective 16 October 2006
* Brooke Army Medical Center (BAMC) Form 1030 (Notification of Patient's Medical Status), dated 12 July 2007
* DA Form 3349 (Physical Profile), dated 19 September 2007
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 October 2007
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 4 December 2008
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 14 January 2009
* discharge authorization memorandum, dated 14 January 2009
* Orders D014-04, U.S. Army Physical Disability Agency, Washington, DC, dated 14 January 2009
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) effective 14 February 2009
* VA Rating Decision, dated 8 January 2010
* Orders 110-1052, Texas ARNG, Austin, TX, dated 20 April 2010
* VA Letter, dated 20 October 2010
* undated self-authored notice of disagreement with denial of Post-9/11 GI Bill benefits
* 8-page medical records extract

CONSIDERATION OF EVIDENCE:

1.  On 17 January 2006, the applicant enlisted in the Texas ARNG with a medical waiver.  She completed training and was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  The highest rank/grade she attained while on active duty was private first class/E-3.

2.  A DA Form 5435 (Statement of Understanding – The Selected Reserve Montgomery GI Bill), dated 17 January 2006, shows the applicant acknowledged she would not be eligible for assistance under the Montgomery GI Bill until she completed a 10-year period of service, except as provided for by the VA.

3.  On 22 May 2006, the applicant entered active duty for training (ADT).  She was released from ADT on 16 October 2006.  Her DD Form 214 shows she completed 4 months and 25 days of creditable active military service.

4.  A DD Form 2384-1 (Notice of Basic Eligibility), dated 8 November 2006, shows the applicant acknowledged she understood the requirements for her eligibility for Selected Reserve educational assistance benefits.

5.  On 19 September 2007, the applicant was issued a DA Form 3349 for bilateral leg stress reaction.  Her physical profile was annotated as permanent and coded "113111" of the physical profile serial system factors (PULHES – (P)hysical capacity or stamina, (U)pper extremities, (L)ower extremities, (H)earing and ears, (E)yes, and p(S)ychiatric).  This form also shows she was undergoing an MEB.

6.  The applicant's MEB proceedings, dated 4 December 2008, show the following medical conditions existed prior to service (EPTS):

* she had a history of right brachial plexopathy with elbow contracture and rupture of the long head of the biceps since infancy
* a summary of care from the Scottish Rite Hospital for Children, Dallas, Texas, revealed a history of right brachial plexopathy prior to age 14
* she learned to perform most activities using her left arm as a child due to pain, weakness, and decreased motion on the right
* her records show she experienced chronic daily right shoulder and biceps pain from at least 1999 through the duration of her treatment at Scottish Rite Hospital
* physician notes indicated the need for adaptive equipment and chronic glenohumeral joint crepitus and pain
* she received routine physical therapy and follow-up care until age 18

7.  The applicant's MEB proceedings show the following with regard to her military service:

* her initial entry of service was marked by recurrent physical profiles for the combination of right arm and shoulder symptoms plus lower extremity pains which have never fully resolved
* on 15 June 2006, she was placed on profile for modified pushups and no lifting over 15 pounds
* physical therapy was initiated on 28 June 2006
* she reported the onset of bilateral plantar pain along with arches that "fell" during basic combat training
* she was allowed to continue on to advanced individual training (AIT) because she passed the initial physical fitness test
* her leg pains reportedly started in August 2006 while running during AIT
* she required profiles and physical therapy for her shoulder, elbow, and wrist through September 2006

8.  The MEB's final diagnoses and recommendation were as follows:

* bilateral lower extremity stress reaction

* service related/line of duty – yes
* does not meet retention standards

* right brachial plexopathy

* EPTS
* does not meet retention standards

* congenital rupture of the long head of the biceps

* EPTS
* meets retention standards

* congenital foot deformity, pes planus

* EPTS
* not permanently service aggravated
* meets retention standards

9.  The MEB determined the applicant's case should be referred to a PEB.

10.  On 12 December 2008, a PEB convened and found the applicant remained medically unfit for right and left tibial stress reaction since May 2006.  The PEB recommended separation with severance pay and determined the following:

	a.  She was rated 10-percent disabled for right tibial stress reaction and 
10-percent disabled for left tibial stress reaction.

	b.  There was no evidence her right (dominant) brachial plexopathy with hypoplasia of right extremity since infancy was permanently aggravated by military service beyond natural progression by such service.  There was compelling evidence that the condition was EPTS.

	c.  Her congenital rupture of the long head of the biceps and congenital foot deformity (pes planus) were not unfitting conditions, met medical retention standards, and did not pose significant physical profile restrictions.

11.  On 14 January 2009, the PEB's findings and recommendations were approved.

12.  Orders D014-04, U.S. Army Physical Disability Agency, Washington, DC, dated 14 January 2009, directed the applicant's discharge with severance pay.

13.  The applicant's NGB Form 22 shows she was honorably discharged on 18 February 2009 due to being medically unfit for retention.  She was credited with 3 years, 1 month, and 2 days of creditable military service.

14.  The applicant provides a copy of her VA rating decision, dated 8 January 2010, which shows no service-connected disabilities.

15.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, Arlington, VA, dated 9 October 2012.  The Personnel Policy Division Chief recommended denial of the applicant's request and stated the Texas ARNG concurred.  The advisory opinion stated the following:

	a.  The applicant does not meet the requirements set aside for Post-9/11 GI Bill benefits as stated in Title 10, U.S. Code (USC), section 16163(b) or subsection (a)(1) or (a)(2).  The reasons for discharge annotated on discharge documents are limited by regulation and "honorable – medical (service connected)" is not an option.

	b.  The applicant's narrative reason for separation on her DD Form 214 was "completion of required active service," not for medical reasons.  Therefore, she does not qualify under the auspices of the law for veteran's status with the VA for educational benefits.

	c.  Title 10, USC, section 16163(a), establishes eligibility for educational assistance (Post-9/11 GI Bill) for members of the Reserve Component if they meet the following:

		(1)  subsection 16163(a)(1), served on active duty in support of contingency operations for 90 consecutive days or more; or

		(2)  subsection 16163(a)(2), in the case of a member of the ARNG of the United States or Air National Guard of the United States, performed Full Time National Guard Duty under Title 32, USC, section 502(f), for 90 consecutive days or more when authorized by the President or Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds.

	d.  The applicant was serving in an initial ADT status; therefore, she does not qualify for Post-9/11 GI Bill benefits.

16.  The applicant was provided with a copy of this advisory opinion to allow her to submit comments, but she did not respond.

17.  Title 10, 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 percent.  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 of less than 30 percent.

18.  Title 38, USC, sections 310 and 331, permit 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.

19.  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 PEB rates all disabilities using the VA Schedule for Rating Disabilities.  Paragraph 9-12 states that Reserve Component Soldiers with medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.

20.  Army Regulation 600-8-105 (Military Orders) states orders are required for certain personnel actions, promotion, and separation.  The entry "service-connected" is not an authorized entry on military orders.  Service connection is a determination made by the VA.
21.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public 
Law 110-252, House of Representatives, 2642.  In July 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

	a.  The program is for individuals who served on active duty after 10 September 2001.  Individuals are eligible if they served at least 90 aggregate days on active duty after 10 September 2001 and are still on active duty or were honorably discharged from active duty for a service-connected disability after serving 30 continuous days after 10 September 2001.

	b.  Eligibility includes active service as a National Guard member under Title 32, USC, for the purpose of organizing, administering, recruiting, instructing, or training, and active service under Title 32, USC, section 502(f), for the purpose of responding to a national emergency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of her records to show she was discharged with a "service-connected disability" and entitlement to the Post-9/11 GI Bill benefits was carefully considered.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Her narrative reason for separation is correctly shown on documents affecting her separation.  

3.  Her DD Form 214 is correct because there is no evidence to show she was unable to perform her duties due to any medical condition until September 2007, when she received a physical profile.  

4.  She was discharged due to disability with severance pay (indicating the Army found that at least one unfitting medical condition was incurred in the line of duty), and her NGB Form 22 shows she was separated for being medically unfit for retention.

5.  Her separation orders, DD Form 214, and NGB Form 22 were prepared in accordance with governing regulations and she has provided insufficient evidence to warrant changing her narrative reason for separation.

6.  Although the applicant requests a statement indicating "service-connected disability" to be shown in her military records, the VA makes this determination in accordance with its own policies and regulations.  In the applicant's case, the VA reviewed her medical records and determined she had no service-connected disabilities.

7.  Requests for changes to narrative reasons for separation are not granted solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change to his or her reason for separation.   Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for VA benefits should be addressed to the VA.

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)                                         AR20110020441



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ABCMR Record of Proceedings (cont)                                         AR20110020441



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