IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120004707 


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 change of his honorable discharge to a medical retirement in the rank/grade of sergeant (SGT)/E-5 by reason of permanent disability.

2.  The applicant states his post-traumatic stress disorder (PTSD) symptoms manifested well before his second combat tour.  It should have been recognized by his fourth combat tour and he should have been medically retired.

3.  The applicant provides:

* a four-page statement explaining his application
* copies of his Department of Veterans Affairs (VA) medical records and rating decisions
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a copy of his DA Form 2166-8 (Noncommissioned (NCO) Evaluation Report) for the period January through April 2006
* copies of awards

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 17 September 2002 for a period of 4 years, training under the airborne ranger training option, and a $17,000.00 enlistment bonus.

3.  He completed his training at Fort Benning, GA and he was transferred to Fort Stewart, GA.  He was then transferred to Fort Bragg, NC.  He deployed to Iraq twice and to Afghanistan twice for a total of 1 year, 1 month, and 20 days of foreign service.  He was promoted to SGT/E-5 on 1 January 2006.

4.  On 19 June 2006, he was honorably released from active duty (REFRAD) to attend school.  He completed 4 years, 2 months, and 25 days of creditable active service.

5.  A review of his DA Form 2166-8 for the period ending April 2006 shows he received a maximum rating and he was recommended for promotion ahead of his peers.

6.  On 3 June 2008, the VA granted the applicant a combined disability rating of 20% for post-traumatic stress disorder (PTSD), degenerative disc disease of the thoracic spine, and tinnitus.  It was increased to 40% on 1 October 2008 and to 70% on 20 July 2010.   On 22 November 2011, he was granted an 80% disability rating at the 100% rate due to unemployability.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states 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.  It provides that 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 member may reasonably be expected to perform because of his or her office, rank, grade or rating.
8.  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.

9.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was should be medically retired because he had PTSD and it should have been recognized after his second deployment has been noted.  There are no provisions that provide for automatic processing under medical processing simply because an individual has been deployed to a hostile fire zone or has a medical condition.

2.  Referral to a medical board through medical processing occurs only when an individual is deemed to be unfit to perform the duties of his/her military occupational specialty (MOS) and there is no evidence to show that at any time the applicant was unable to perform the duties of his MOS.  His last NCO Evaluation Report shows he was fully capable of performing his duties.

3.  Based on the available evidence, he was not entitled to or eligible for processing under medical processing for a disability separation.  Records show he was properly discharged per his request in accordance with the applicable regulations in effect at the time with no indication of any of the applicant’s rights.


4.  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 the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his 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)                                         AR20120004707



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ABCMR Record of Proceedings (cont)                                         AR20120004707



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