BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120003991 


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

2.  The applicant states:

* he was not able to reenlist due to his injuries and he was involuntarily extended to heal before he was able to reach his expiration of term of service (ETS)
* he left the Army in a walking cane and he does not understand why he never got a medical review to see if he was fit for continued service
* the Department of Veterans Affairs (VA) has taken care of him and his injuries in the form of medications and therapy
* he still has problems with his leg and he feels the pins holding the titanium in place
* he does not understand why he was not medically retired because he could no longer do his job as an infantryman
* he was injured in Iraq and he spent from August 2003 to May 2004 on special medical status
* he did not fully understand why people got medical review boards, but he knew his career was over the night he shattered his femur
* he definitely believes he deserves more than he is receiving from the VA
* the Army should not have kicked the can down the road
* he was no longer an infantryman and did not do any physical training due to his femur fracture

3.  The applicant provides:

* Air Force Review Boards Agency letter, dated 28 June 2011
* DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States)
* DD Form 214
* Army Review Boards Agency letter, dated 17 August 2011
* DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty)
* VA Rating Decision, dated 25 October 2005
* Army Medical Records
* Self-authored Affidavit, dated 28 April 2010
* Stars and Stripes Story, dated 21 March 2004
* A copy of a photograph of his leg
* Information from the Journal of Bone & Joint Surgery (JB&JS)

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 (RA) on 16 August 1999 for a period of 3 years.  He completed training as an infantryman.  He reenlisted in the RA for 2 years on 28 November 2001.  His record shows he arrived in Iraq on
26 March 2003.

3.  His Air Force (AF) Form 3899 (Aeromedical Evacuation Patient Record), dated 20 August 2003, shows the applicant sustained a right femur fracture when a vehicle rolled over his leg on 16 August 2003.  The medical records he provides show he was the driver of a humvee and he was on a hill.  He left the humvee to assist another Soldier who was wrestling with an Iraqi.  The humvee 

rolled downhill and ran over his leg.  He was evacuated to Landstuhl Regional Medical Center, Germany, and he underwent surgery on 21 August 2003.

4.  The applicant was medically evacuated to Italy on 15 September 2003.

5.  The applicant provides a photocopy of his leg and information from JB&JS describing intramedullary nailing of femoral shaft fractures.  He provides a Stars and Stripes article, dated 21 March 2004, wherein he stated he believed he was unfit to continue in the military and that he was due to go before a medical evaluation board (MEB) sometime during that month.

6.  On 30 May 2004, the applicant was honorably released from active duty (REFRAD) and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) at the completion of his required active service.  He completed 4 years, 9 months, and 15 days of creditable active service.  He received a reentry eligibility (RE) code of "1."

7.  The applicant provides a VA Rating Decision, dated 25 October 2005, that shows a service-connected disability rating for the following:

* post traumatic stress disorder that had been rated at 30% and was increased to 100% (temporary), effective 1 June 2004
* residuals, status post right femur fracture and external fixation that had been rated at 10% and was increased to 20%, effective 1 June 2004
* lumbosacral strain that was rated at 10%, effective 1 June 2004
* right knee strain that was rated at 0%, effective 1 June 2004
* left knee strain that was rated at 0%, effective 1 June 2004

8.  The available records do not contain evidence that shows the applicant had any medically unfitting conditions at the time of his REFRAD.

9.  Army Regulation 40-501 (Standards of Medical Fitness) governs the medical fitness standards for enlistment, induction, and appointment; and the medical fitness standards for retention and separation, including retirement.  Chapter 3 pertains to medical fitness standards for retention and separation and gives the various medical conditions and physical defects which may render a Soldier unfit for further military service.  It states that Soldiers with conditions listed in that chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a Physical Evaluation Board (PEB).

10.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

11.  Title 10, U.S. Code, section 1202, provides for the placement of a member on the Temporary Disability Retired List (TDRL) when the disability may be permanent.  Placement on the TDRL requires that the member meet the criteria of Title 10, U.S. Code, section 1201.

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.

	a.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.

	b.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

	c.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states that prior to discharge or REFRAD, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, USAR, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  An RE code 1 applies to persons who are fully qualified for reenlistment in the RA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  The available evidence shows the applicant fractured his femur and he was evacuated to Landstuhl Regional Medical Center.  He underwent surgery on
21 August 2003.  He was REFRAD on 30 May 2004 and he was assigned an RE code 1.  He was awarded a service-connected disability rating of 10% for this injury by the VA sometime in 2005 (effective 1 June 2004), that was increased to 20% in his VA Rating Decision, dated 25 October 2005.  Neither of these ratings would have been sufficient to warrant his medical retirement from the Army.  There is no evidence of record and he makes no claim that any of the other conditions for which the VA rated him rendered him unfit for duty.

3.  His records do not show why he was extended, whether it was involuntarily for medical reasons as he contends or perhaps due to Stop Loss.  However, there is no evidence in the available record, nor has the applicant submitted sufficient evidence to show the fractured femur he sustained while he was in the Army was medically unfitting or that at the time of his separation he was not healing in an appropriate manner.  

4.  There is insufficient evidence available to support the applicant's contentions. Even if he was not fit for REFRAD, the evidence shows his leg condition merited a 10% disability rating or at most a 20% disability rating at the time of his REFRAD.  His condition, if unfitting, would have resulted in separation pay that would have been recouped by the VA.

5.  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:

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)                                         AR20120003991



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ABCMR Record of Proceedings (cont)                                         AR20120003991



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