IN THE CASE OF:	  

		BOARD DATE:  27 March 2012

		DOCKET NUMBER:  AR20110023586 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired instead of honorably released from active duty.

2.  The applicant states, in effect, he should have been medically retired due to post-traumatic stress disorder, two knee surgeries, migraines, and traumatic brain Injury (TBI).  He was rushed out of the military after his second tour in Iraq due to stop loss.  He believes he was eligible for a medical retirement according to military standards and regulations because all of his illnesses and injuries had they been spotted before he was rushed out.

3.  The applicant provides various Department of Veterans Affairs (VA) medical records, progress notes, discharge summaries, and a listing of medications. 

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's records show he enlisted in the Regular Army on 17 September 2001 and he held military occupational specialty 92F (Petroleum Supply Specialist).  He served in Kuwait/Iraq from 1 March 2003 to 12 February 2004 and from 30 November 2004 to 17 November 2005.  

3.  On 17 February 2006, he was honorably released from active duty by reason of completion of required active service and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining Reserve obligation.

4.  His service medical records are not available for review with this case.  Additionally, there is no evidence in his available records that indicate he suffered from an injury, illness, or any medical condition that rendered him physically unfit or unable to perform the duties required by his grade or military specialty, or that would have warranted his entry into the Army's physical disability evaluation system (PDES).

5.  After his release from active duty, he enlisted in the Tennessee Army National Guard (TNARNG) for 1 year.  He was assigned to Company A, 1st Battalion, 151st Aviation where he performed his duties as a petroleum supply specialist and participated in unit training.  

6.  On 6 February 2008, he was honorably separated from the ARNG upon expiration of his term of service.

7.  He submitted VA medical records, dated between 2010 and 2011 that reveal treatment and/or diagnosis for various medical conditions including pain in the joint of the lower leg and osteoarthritis, post-traumatic stress disorder, alcohol dependence, chronic sinusitis, and gastroesophageal reflux disorder.  

8.  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 (MEBs), 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.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).  

9.  Army Regulation 40-501 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's Schedule for Rating Disabilities (VASRD).

10.  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%. 

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20% of service and a disability rating at less than 30%.

12.  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 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 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.  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.  On 17 September 2001, the applicant entered active duty and he was honorably released from active duty upon completion of his enlistment commitment on 17 February 2006.  

2.  There is no evidence he was diagnosed with any medical condition while he was on active duty.  The Army’s PDES is dependent on the existence and severity of a condition at the time of separation.  In fact, after his release from active duty in February 2006 he enlisted in the TNARNG on 7 February 2007 and participated in unit training.  This indicates he was fully capable of performing his military duties up through his separation date.  
3.  There is no evidence in the available records and he did not provide any evidence that shows he was diagnosed with a medical condition that rendered him physically unfit or unable to perform the duties required by his grade or military specialty, or that would have warranted his entry into the Army's PDES. 

4.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and their 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.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

5.  When identified, diagnosed, evaluated, and rated, 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.  Therefore, he 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 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)                                         AR20110023586



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ABCMR Record of Proceedings (cont)                                         AR20110023586



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