IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120011612 


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.  his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 October 2003 be corrected to show he served in Iraq;

	b.  his honorable discharge be changed to a medical discharge; and

	c.  all awards and decorations to which he may be entitled for his service in Iraq. 

2.  The applicant states: 

* He would like his DD Form 214 to reflect his service in Iraq not just Kuwait
* He was quickly discharged due to matters that occurred while he was in Iraq
* He was never medically examined even though he was sent to Walter Reed for surgery due to an injury he sustained on active duty in Iraq
* His unit was still in Iraq so proper information was not available
* His injuries sustained in Iraq were far worse than what was diagnosed
* He feels he is entitled to the same medals as his company (998th Quartermaster Company) as he served honorably in Iraq with them
* He believes he was incorrectly diagnosed and his main injuries were to his neck and doctors notes from the Department of Veterans Affairs (VA) prove it    

3.  The applicant provides:

* Service medical records
* Service personnel records
* VA medical documents and medical record
* DD Form 214

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 was ordered to active duty on 31 January 2003 from the U.S. Army Reserve in support of Operation Enduring Freedom.  He served as a petroleum supply specialist.  He arrived in Kuwait on 26 March 2003.  

3.  He provided a DA Form 2173 (Statement of Medical Examination and Duty Status) that state he injured his left arm in Iraq on 12 May 2003.  

4.  He provided an AF Form 3899 (Aeromedical Evacuation Patient Record), dated June 2003, which indicates, other than his left arm/hand injury, he "Denies any other medical problems at this time."

5.  A medical record, dated 26 June 2003, shows he underwent hand surgery at Walter Reed Army Medical Center.   

6.  On 3 October 2003, his request for a hardship discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 6-3b(2) (sole parent), was approved.  He was honorably discharged on 17 October 2003 for parenthood.

7.  His DD Form 214 shows he was awarded the:

* National Defense Service Medal
* Armed Forces Expeditionary Medal
* Armed Forces Reserve Medal with "M" Device
* Army Service Ribbon  

8.  Item 18 (Remarks) of his DD Form 214 shows, among other entries, the entry "SERVICE IN KUWAIT 20030326-20030701."

9.  He provided VA documentation, dated 9 December 2010, which shows service connection was granted for degenerative joint disease of cervical spine and neck scar, residual of cervical fusion.  His overall evaluation was 70%.   

10.  He also provided VA documentation, dated 28 May 2012, which shows he was 70% service connected.    

11.  A DD Form 215 (Correction to DD Form 214), dated 16 February 2011, added the Global War on Terrorism Expeditionary Medal and Global War on Terrorism Service Medal to his DD Form 214.

12.  Title 10, U.S. Code, chapter 61, provides for 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.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states 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, or rank.  It 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.  When a Soldier is being processed for separation 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 indicates that a Soldier is fit.


14.  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.

DISCUSSION AND CONCLUSIONS:

1.  Since evidence shows he served in Kuwait and Iraq, his DD Form 214 should be corrected to show he served in Kuwait/Iraq from 26 March 2003 to 1 July 2003.

2.  He contends the injuries he sustained in Iraq were far worse than diagnosed, his main injury was to his neck, and he should have been medically discharged.  However, medical evidence shows he injured his left arm in Iraq and when he was evacuated in June 2003 he denied any other medical problems at the time.  Medical evidence also shows he had surgery on his left arm/hand in June 2003.

3.  There is no evidence to show the applicant could not perform his duties while on active duty and he was never referred for physical disability processing.  Therefore, there is insufficient evidence to show a medical discharge was warranted.  

4.  It is acknowledged the VA has granted him a 70% disability rating.  However, an award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

5.  Evidence shows the Global War on Terrorism Expeditionary Medal and Global War on Terrorism Service Medal were added to his DD Form 214 for the period ending 17 October 2003 in 2011.  Therefore, there is no basis for adding any other awards or decorations to his DD Form 214.  A copy of the DD Form 215 will be provided to the applicant.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented Is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the entry "SERVICE IN KUWAIT 20030326-20030701" from item 18 of his DD Form 214 and replacing it with the entry "SERVICE IN KUWAIT/IRAQ FROM 20030326-20030701."  

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a medical discharge or adding any other awards and decorations to his DD Form 214.



      _____________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)                                         AR20120011612



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ABCMR Record of Proceedings (cont)                                         AR20120011612



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