IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120011871 


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 correction of his record to show he received a medical retirement.

2.  The applicant states he should have been medically retired at the time of his separation.  He contends he did not receive medical attention after he returned from a 15 month deployment in Iraq because he only had three months remaining on active duty.  In addition, Army physicians told him to go through the Veterans Affairs (VA) to address his combat related wounds/disease.  The VA initially awarded him a disability rating of 80 percent but he currently has a disability rating of 100 percent, unemployability, with an effective date equal to the date of his release from active duty, 10 June 2009.

3.  The applicant provides:

* Department of the Army Identification Card
* VA Rating decisions dated 23 August 2010; 24 August 2010; 21 October 2011; 19 January 2012; and 23 February 2012

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 26 February 2003.
On 10 June 2009, he was honorably released from active duty by reason of completion of required active service and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining Reserve obligation.

3.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Iraq from 6 December 2004 through 28 March 2005; and 
6 December 2007 through 26 February 2009.

4.  His service medical records are not available for review with this case.  Additionally, there is no evidence in his available records that indicate he suffered from an injury, illness, or any medical condition that rendered him physically unfit or unable to perform the duties required by his grade or military specialty, or that would have warranted his entry into the Army's physical disability evaluation system (PDES).

5.  He submitted VA documents, dated between 2010 and 2012 that reveal he received a service connected disability rating and/or compensation for various medical conditions including post traumatic stress disorder, tinnitus, thoacolumbar strain, bilateral hip strain, hypertension, traumatic brain injury with residual migraine headaches, and reflux esophagitis.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  It provides for medical evaluation boards (MEBs), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation     40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).



7.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA's Schedule for Rating Disabilities (VASRD).

8.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent 

9.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 percent of service and a disability rating at less than 30 percent.

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 a higher VA rating does not establish error or injustice in the Army rating.  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 requests correction of his record to show he received a medical retirement.

2.  On 26 February 2003, he entered active duty and he was honorably released from active duty upon completion of his enlistment commitment on 10 June 2009.

3.  There is no evidence in the available records and he did not provide any evidence that shows he was diagnosed with a medical condition that rendered him physically unfit or unable to perform the duties required by his grade or military specialty, or that would have warranted his entry into the Army's PDES. The Army’s PDES is dependent on the existence and severity of a condition at the time of separation.

4.  The record does not contain and the applicant did not provide any evidence to support his contention he was denied medical attention, to include an opportunity to have his medical conditions reviewed by a MEB or PEB.

5.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

6.  When identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Therefore, he is not entitled to the 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)                                         AR20120011871





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ABCMR Record of Proceedings (cont)                                         AR20120011871



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