IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120002336 


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 his record to show he was retired by reason of physical disability instead of separated by reason of reduction in force.

2.  The applicant states he was given a regular discharge and he was not put on the medical retired list.  He is requesting correction of his record to show he was eligible for medical retirement.

3.  The applicant provides the following documents in support of the request:

* Self-Authored Statement
* Honorable Discharge Certificate
* Separation Orders

4.  Subsequent to receipt of this application and during the processing of the case, the applicant died.  Hereinafter he will be referred to as the former service member (FSM).  This case is being processed to completion and will be provided to the FSM's estate at the request of his son.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests proper resolution of any error or injustice related to the FSM's case and that the ABCMR's final decision reflect sound equitable principles consistent in law, regulation, policy and discretion in accordance with the applicable law.
2.  Counsel states the issues raised by the FSM amply advance his contentions and substantially reflect the probative facts needed for equitable review.  

3.  Counsel provides a letter in support of its position.

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 FSM's record shows he enlisted in the Regular Army on 8 March 1982 and continuously served for 15 years, 5 months, and 12 days until being honorably discharged on 22 August 1997, in the rank/grade of sergeant (SGT)/
E-5, by reason of reduction in force.

3.  The FSM's official military personnel file (OMPF) is void of any medical treatment records indicating the applicant was suffering from a disabling condition that would have warranted his separation processing through medical channels at the time of his discharge.  The record does contain a DD Form 214 (Certificate of Release or Discharge from Active duty) issued to the FSM for the period ending 22 August 1997.  This document confirms the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8, by reason of reduction in force.  It also shows he received $31,163.47 in separation pay.

4.  The FSM provided a VA Rating Decision, dated 6 October 2008.  This document indicates he was granted service-connection for the following conditions and granted the disability rating percentages (%) indicated effective 
23 August 1997:

•	Graves Disease with Hypothyroidism, 60%
•	Lumbosacral Strain, 10%
•	Hypertension, 10%
•	Pseudofolliculitis Barbae, 10%
•	Subepidermal Cysts, 0%

5.  The VA Rating Decision provided by the FSM does not include the supporting narrative summary with rationale for the rating decisions.  It also does not include the service medical records or VA treatment records used in arriving at these rating decisions.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's 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.

7.  Paragraph 3-1 of the disability regulation outlines the standards of unfitness because of physical disability.  It states the mere presence of 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 their office, grade, rank, or rating.

8.  Title 38, U.S. Code, sections 1110 and 1131, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's request to correct his record to show he was retired by reason of disability instead of separated by reason of reduction in force has been carefully considered.  However, there is an insufficient evidentiary basis to support this claim.

2.  The evidence of record confirms the FSM was separated by reason of reduction in force with separation pay.  The record is void of any medical records 


or other documents indicating he was suffering from a disabling medical condition that interfered with his performance of military duties.  Further, the VA rating decision provided fails to provide any supporting service medical treatment records supporting the determination that these conditions would have supported the FSM's processing through medical channels at the time of his discharge.

3.  Procedurally, the FSM would have been required to undergo a separation medical examination at the time of his discharge processing after being determined medically qualified for retention/separation by competent medical authority.  However, there is no medical evidence confirming the FSM's medical conditions rendered him unfit for further service at the time of his discharge.

4.  Absent evidence to the contrary, there is a presumption the FSM's separation processing was accomplished in accordance with the applicable regulation.  

5.  As a matter of information, the VA may grant disability ratings for service connected conditions and their determinations on whether a condition is service-connected rests solely with that agency.  Additionally, there is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based upon the individual's ability to perform the duties of his/her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating if awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rater as the conditions(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA's ratings are based upon an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants those concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  All Americans should be justifiably proud of the FSM's service in arms.



      ___________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)                                         AR20120002336



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ABCMR Record of Proceedings (cont)                                         AR20120002336



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