IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120012035 


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 medical discharge/retirement at the highest rank he ever held.  

2.  The applicant states the Department of Veterans Affairs (VA) granted him a disability rating for the service connected condition of Hepatitis C.  He states there was no diagnosis by the Army in his discharge examination.  He claims as a result of the VA determination, he should be medically retired as a sergeant/E-5 with the 80 percent disability rating assigned by the VA.  

3.  The applicant provides a VA letter, dated 18 May 2012 in support of his request. 

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’s record shows he served in the Regular Army for 1 year, 
11 months, and 25 days between 2 March 1982 and 6 March 1984, at which time he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) in the grade of private first class (PFC)/E-3.  

3.  The applicant served in the USAR through 2 May 1989.  On 31 August 1994, after a break in service between 3 May 1989 and 30 August 1994, the applicant enlisted in the National Guard (ARNG).  

4.  The applicant’s Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), is void of any medical records that indicate the applicant was suffering from a disabling physical or mental condition at anytime during his military service.  

5.  99th Troop Command, Reno, Nevada, Orders 347-005, directed the applicant’s discharge from the ARNG and as a Reserve of the Army, effective 
30 August 1995.  

6.  On 30 August 1995, the applicant was honorably discharged from the ARNG and as a Reserve of the Army, in the rank of PFC/E-3.  The NGB Form 22 (Report of Separation and Record of Service) he was issued at the time shows he was separated under the provisions of paragraph 8-26x, by reason of expiration of term of service.  The NGB Form 22 shows he completed a total of
8 years, 2 months, and 15 days of service for pay and 1 year, 11 months, and
25 days of prior active Federal service.  

7.  The applicant provides a VA letter, dated 18 May 2012, which shows he is receiving service-connected disability compensation from the VA in the amount of $1,478.00 per month based on a combined disability rating of 80 percent.  The applicant failed to provide the VA rating decision or any related VA or military medical treatment records.  

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's 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.  



9.  Paragraph 3-1 of Army Regulation 635-40 outlines the standards of unfitness because of physical disability.  It states 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.  When a Soldier is being processed for separation or retirement 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 creates a presumption that the Soldier is fit.

10.  Title 38, U.S. Code, sections 1110 and 1131, permit 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for medical retirement has been carefully considered.  The applicant provides only the VA letter confirming compensation for service connected condition(s).  He fails to provide VA or military medical treatment records upon which the combined disability rating is based.  

2.  There is no evidence of record or independent evidence provided by the applicant that would support a conclusion the applicant's service-connected medical conditions rendered him unfit for further service and supported his processing through the PDES at the time of his REFRAD on 6 March 1984, or at the time of his discharge from the ARNG and as a Reserve of the Army on 
30 August 1995.   This is supported by his continued satisfactory performance of duty while remaining in an active Reserve status through the date of his discharge.  

3.  Absent evidence to the contrary, there is a presumption the applicant's separation processing was accomplished in accordance with the applicable regulation and that he received all required medical examinations and screening necessary prior to his discharge in 1995.  
4.  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 or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the conditions(s) exist(s) at the time of his or her processing through the PDES.  On the other hand, 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.  The VA is the appropriate agency to provide compensation and treatment for service-connected conditions that were not found to be unfitting for further military service at the time of a member's separation, retirement, or discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis to support granting 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)                                         AR20120012035



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012035



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1