BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120002842 


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 a disability discharge.

2.  He states he wants to be granted a disability discharge so he may receive "appropriate benefits."  He states he was granted 100 percent (%) disability, which was backdated to the date of his discharge.

3.  He provides:

* a self-authored Notice of Disagreement to the Department of Veterans Affairs (VA),St. Louis, MO, for benefits pertaining to the Post 9/11 GI Bill education benefits, dated 10 October 2011
* a response letter from the VA, dated 23 January 2012
* a VA Decision Review Officer Decision, dated 8 December 2003

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 Regular Army on 20 October 1981.  After completing initial entry training, he was awarded military occupational specialty 94B (cook) that was later redesignated as 92G (food service specialist).

3.  His DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period ending July 2001 shows he was rated as "fully capable."  In item IVc (Physical Fitness and Military Bearing), his rater gave him a "success" rating and entered the following notes:

* "profile does not affect duty performance"
* "medication precludes weight loss"

4.  His record is void of documentation showing he was denied reenlistment.

5.  On 31 December 2001, he retired under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 12, by reason of sufficient service for retirement in the rank/grade of sergeant first class (SFC)/
E-7.  He completed 20 years, 2 months, and 11 days of creditable active service.

6.  His service medical records are not available for review.

7.  He provides a VA Decision Review Officer Decision, dated 8 December 2003, that shows he was granted an increase in his service-connected disability rating in response to a Notice of Disagreement he filed.  The decision shows he received service-connected disability ratings for:

* degenerative disease of the cervical spine – rated at 30% and increased to 60% effective 1 January 2002
* adjustment disorder with depressive features – rated at 70% and increased to 100% effective 1 January 2002
* epididyectomy with orchialgia – continued at 10%
* hemorrhoids – continued at 10%

8.  He provides a Notice of Disagreement he submitted to the VA.  In this document, he argues he should be eligible for full Post 9-11 GI Bill education 
benefits due to his "30 continuous days (active duty) and discharged due to service-connected disability."  He states:
* he was 100% disabled when he was discharged on 31 December 2001
* because he was disabled on active duty, he was unable to do his job in a satisfactory manner
* he attempted to reenlist but was denied because of his disability

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  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 his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

10.  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 empowered 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 may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:
1.  The evidence of record does not support the applicant's request for a disability discharge.

2.  The ABCMR does not change the reason and authority for a discharge solely for the purpose of making an individual eligible for benefits.

3.  The evidence of record shows that, shortly before his retirement, he received an NCOER rating him as "fully capable."  The NCOER also noted his duty performance was unaffected by a physical profile.  Contrary to his own statement, it appears he was fit to perform his duties.  Accordingly, there would have been no cause to refer him to the PDES to be processed for separation for disability. 
4.  The evidence of record does not show, nor has he provided evidence showing, he was denied reenlistment due to a disabling condition.

5.  The fact that the VA granted service-connected disability ratings for several conditions effective the day after he left active duty has no bearing on the question of his fitness while he was on active duty.  The VA 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.  Receiving a rating from the VA for one or more medical conditions is not evidence that those conditions rendered him unfit to perform his duties prior to his retirement.

6.  In view of the foregoing, there is no 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:

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)                                         AR20120002842



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ABCMR Record of Proceedings (cont)                                         AR20120002842



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