IN THE CASE OF:	  

		BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120002525 


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 that his discharge be voided and that he be retired by reason of permanent disability.

2.  The applicant states that he should have been retired at the time of his injury due to the damage done by the doctor at Cutler Army Hospital.  He goes on to state that he was injured on active duty and due to the treatment given at the time his condition worsened and it made it harder for him to function for the next 22 years; however, he was never offered any type of explanation or retirement. 

3.  The applicant provides various documents from his personnel records and copies of medical treatment records from the Department of Veterans Affairs (VA).

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 Massachusetts Army National Guard (MAARNG) on 17 October 1973 for a period of 6 years.  He was ordered to initial active duty training (IADT) on 5 July 1974 and completed his training as an infantryman at Fort Polk, Louisiana before being released from IADT on 4 November 1974 and being returned to his MAARNG unit.  On 19 January 1975, he was honorably discharged from the MAARNG to enlist in the Regular Army.

3.  On 20 January 1975, he enlisted in the Regular Army for a period of 3 years.  He remained on active duty through a series of continuous reenlistments until he was honorably discharged in the pay grade of E-4 on 3 October 1980.  He had served 6 years and 5 days of active service. 

4.  On 1 August 1984, he again enlisted in the MAARNG and was assigned to a unit in Natick, Massachusetts.

5.  On 1 October 1988, the applicant slipped on the barracks steps and sprained his left ankle.  He was sent to Cutler Army Hospital, Fort Devens, Massachusetts on 2 October 1988 for treatment.   

6.  The applicant’s injury was determined to be in the line of duty and he was granted incapacitation pay for the period of 11 October to 18 October 1988.

7.  On 8 December 1989, the applicant submitted a request to be transferred to the inactive MAARNG effective 1 January 1990.  He contended that his employment as a power lineman was essential to the community interests and due to manpower shortages he was on call nights and weekends 7 days a week with little or no notice.  His request was approved and he was transferred to the inactive MAARNG for the period 1 March to 27 May 1990.  On an unknown date, he was apparently returned to the active ARNG.

8.  On 20 September 1998, the applicant’s commander submitted a recommendation to bar the applicant from reenlistment and a request to discharge the applicant from the MAARNG due to unsatisfactory participation.  He indicated that the applicant displayed chronic absence without leave (AWOL) and had 42 unexcused absences within a 1-year period as the basis for his recommendation.

9.  The recommendation for discharge was approved and he was discharged from the MAARNG under honorable conditions on 1 October 1998 and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).
10.  On 26 October 2004, he was honorably discharged from the USAR.  He had 18 years and 4 month of creditable service for retired pay purposes.

11.   Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, 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.  This regulation also provides, in pertinent part, 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.  

12.  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.  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.

13.  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 or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the Physical Evaluation Board (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.

14.  Army Regulation 40-400 (Medical Services – Patient Administration), paragraph 7-1, provides, in pertinent part, that physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 referring them to the Physical Disability Evaluation System (PDES).  Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the military occupational specialty (MOS) medical retention board (MMRB).  If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the PEB liaison officer.  MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the member’s medical status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  

2.  In order to be eligible for an MEB or processing under the PDES, an individual must have at least one unfitting condition and there is no evidence to show that such was the case.   

3.  While his official records show that he suffered an ankle sprain in 1988, there is no evidence to show that the injury was unfitting or that improper medical treatment was rendered at the time.  The applicant continued to perform his duties until such time as he was administratively discharged as an unsatisfactory participant.  

4.  The fact that the VA, in its discretion, may have awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army.

5.  Therefore, since there is no evidence of error or injustice in his case, there appears to be no basis to grant his request for a medical separation or retirement.  

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)                                         AR20120002525





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002525



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1