BOARD DATE:	5 June 2012

		DOCKET NUMBER:  AR20120004748 


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, a medical retirement.

2.  The applicant states:

   a.  on 6 January 2008, he filed for a medical discharge indicating he was unfit for duty due to post traumatic stress disorder (PTSD);
   
b.  his request was discarded and he was discharged from the military after
18 years of service with a general discharge and without retirement benefits or the ability to reenter the military; and

   c.  he needs his military retirement to support himself due to his military related disabilities.
   
3.  The applicant provides:

* Discharge order
* Document titled "MMRB (Military Occupational Specialty (MOS) Medical Retention Board) Documents Checklist"
* Department of Veterans Affairs (VA) Rating Decision
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Prescription listing
* DA Form 3349 (Physical Profile)
* 
Memorandum, dated 5 October 2005
* Three self-authored statements
* VA letters, dated 25 October 2011 and 24 February 2012
* DA Form 1559 (Inspector General Action Request)
* Numerous Medical Record extracts
* National Personnel Records Center letter, dated 19 January 2012
* Numerous Official Military Personnel File (OMPF) extracts

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record confirms he initially enlisted in the U.S. Army Reserve (USAR) on 6 August 1986.  He intermittently served in the USAR and on active duty through several periods of reenlistment.

2.  A DA Form 2166-8 (Noncommissioned Officer Evaluation Report NCOER)) covering the period 17 July 2007 through 16 July 2008, shows in Section IVc (Physical Fitness and Military Bearing) the applicant passed the Army Physical Fitness Test on 13 October 2007.  Part Ve (Senior Rater Bullet Comments) shows the applicant was unavailable to sign this report due to his recent incarceration.  It also shows he was rated as “success” in all areas of NCO responsibilities and the senior rater commented, “fully capable soldier.”

3.  On 23 November 2009, Orders 09-327-00004, issued by Headquarters,
316th Sustainment Command, Coraopolis, Pennsylvania, directed the applicant’s general discharge from the USAR under the authority of Army Regulation 
135-178 (Enlisted Administrative Separations), effective 30 November 2009.  It does not indicate the specific facts and circumstances surrounding his discharge.

4.  The applicant's official military personnel file (OMPF) includes 154th Legal Support Organization, United States Army Trial Defense Service, Memorandum, dated 31 January 2010.  It indicates he was involuntarily separated from the USAR under the provisions of Army Regulation 135-178, chapter 12, paragraph 12-2 as a result of a civil conviction.

5.  On 26 August 2011, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade. 

6.  The applicant provides a VA Rating Decision, dated 28 January 2008, and a VA Letter, dated 25 October 2011, which shows he was granted service connected disability for the following conditions:

Medical Description
Percent (%) Assigned
PTSD
50%
Degenerative Joint Disease, L4-5
40%
Degenerative Joint Disease, L4-5
40%
Chronic Fatigue Syndrome
60%
Tinnitus
10%
Traumatic Brain Injury
10%
7.  The applicant provides numerous medical record extracts evidencing the medical treatment he received throughout and subsequent to military service.  There is no evidence that shows he suffered from a disabling medical condition that warranted discharge processing through medical channels.

8.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) prescribes the policies for the separation of enlisted Soldiers from the Reserve Components.  Service may be characterized as under other than honorable conditions when discharge is for misconduct.

   a.  Paragraph 12-2 of this regulation provides a Soldier may be discharged for misconduct when it is determined under the guidance set forth in chapter 2, section I, that the Soldier is unqualified for further military service by reason of a civil conviction.
   
   b.  Chapter 15 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness.

9.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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.

   a.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.
   b.  Paragraph 4-3a states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. 
10.  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 any VA rating does not establish error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive a medical retirement.

2.  The evidence of record shows official orders directed the applicant's discharge under the provisions of Army Regulation 135-178.  Although these orders did not provide the specific chapter or paragraph to state the reason for his discharge, his latest NCOER confirms he was not available for its signature due to his recent incarceration.  This corroborates the information shown in 154th Legal Support Organization Memorandum which shows he was discharged under the provisions of Army Regulation 135-178, chapter 12, paragraph 12-2, as a result of civil conviction.  While the applicant was granted a general discharge, under this provision of the regulation, an under other than honorable conditions discharge was and still is authorized.

3.  By regulation, Soldiers may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. Therefore, there is no basis to grant the requested relief in this case.

4.  In addition, his last NCOER showed that he was fully capable of performing his duties.

5.  The evidence submitted by the applicant confirms the VA assigned him a disability rating for service connected medical conditions and he is being provided medical care and benefits based on those medical conditions.  However, his VA rated disabilities do not mean his conditions were medically unfitting for retention, or separation, or that those conditions supported processing him through medical channels at the time of discharge.

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)                                         AR20120004748



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ABCMR Record of Proceedings (cont)                                         AR20120004748



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