IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120017854 


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 military record by overturning his resignation and showing he should be considered for a physical disability retirement.

2.  The applicant states he received injuries to his back during intense combat operations in Iraq.  In November 2008, after his return from Iraq and assignment to Fort Benning, GA, he sought medical treatment from the Army's medical treatment facilities.  Because the Army was unable to provide treatment in a timely manner, he used personal funds and resources to arrange for civilian chiropractic care and over the counter medications to gain some temporary relief.

3.  Despite the constant level of pain, he was able to perform his duties as an instructor at the Ranger School at Fort Benning.  However, by September 2011, during his assignment to the 82nd Airborne Division at Fort Bragg, NC, he realized he could not sustain the high level of physical fitness required of an infantry officer.

4.  His family heritage of military officers was the reason he attended West Point.  It was a difficult decision for him to leave the military.  He realized that due to his physical limitations, he needed to seek another pathway and requested separation from active duty.

5.  As part of his out-processing, he received a medical examination.  During this examination, he informed the physician of his extensive injuries.  At the time, the 


applicant was unaware of the policies and procedures governing a medical evaluation board (MEB) so he did not question his subsequent clearance by the doctor nor his release from active duty without a referral to an MEB.

6.  He felt a profound sense of loss after leaving the military.  He became aware of a Range Control Officer position with the New York Army National Guard (NYARNG).  He thought he could make a significant contribution in this less physically demanding administrative job.  However, he simply could not achieve a passing score on the Army Physical Fitness Test.  He had to accept that he was a non-deployable Soldier and respectfully resigned from this short-lived assignment.

7.  The applicant provides no additional documentary evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's military records by overturning his separation and considering him for a physical disability retirement.

2.  In a 7-page brief, counsel essentially states the applicant was injured during a combat operation when he fell into a large well dug into the ground.  He was transported to the casualty collection point for medical care.  As a result of the fall he received physical therapy in Iraq.  He subsequently received medical treatment in the United States by a civilian provider.  Upon realizing he could no long perform his duties as an infantry officer he decided to resign.  In April 2011, prior to his separation physical, the applicant submitted a claim to the VA that subsequently resulted in a combined disability rating of 80 percent.  The applicant's numerous unfitting conditions were identified during his separation physical examination but the physician either ignored or downplayed their symptomatology.  The physician never opined as to the effect of the multiple impairments on the applicant's ability to perform the functions of his office, grade, rank, or rating.  There was no recommendation for further examination by the Disability Evaluation System.

3.  Counsel provides copies of:

* Exhibit A:  DA Form 2823 (Sworn Statement) dated 21 October 2011
* Exhibit B:  DA Form 2823 dated 20 October 2011
* Exhibit C:  Not received
* Exhibit D:  Photograph of large hole in the ground beside a block wall
* Exhibit E:  Standard Form 600 (Chronological Record of Medical Care) dated 30 November, 1 December 2007, and 17 October 2008
* Exhibit F:  Confidential Patient Information, Chiropractic Examination, and Patient Daily Notes, Pine Mountain Chiropractic Center, dated 23 March 2009
* Exhibit G:  DA Form 2823 dated 22 October 2011
* Exhibit H:  DD Form 2807-1 (Report of Medical History) dated 12 May 2011
* Exhibit H:  DD Form 2808 (Report of Medical Examination) 2011, undated
* Exhibit H:  DD Form 2216E (Hearing Conservation Data)
* Exhibit H:  Standard Form 600, dated 26 May 2011
* Exhibit I:  Letter, Disabled American Veterans, dated 29 April 2011
* Exhibit I:  Letter, Department of Veterans Affairs (VA) dated 12 October 2011
* Exhibit I:  VA Rating Decision, dated 7 October 2011

CONSIDERATION OF EVIDENCE:

1.  On 28 May 2005, the applicant entered the Regular Army as 2nd lieutenant, Infantry branch.  On 28 November 2006, he was promoted to 1st lieutenant in the same branch.

2.  A Standard Form 600, dated 30 November 2007, states the applicant had fallen into a 20-foot deep well about 4 or 5 weeks earlier and now complains of wrist pain.  He initially applied ice for the first couple of days and did not require medication.

3.  A Standard Form 600, dated 17 October 2008, reports the applicant had fallen into a well during a combat patrol on or about 23 October 2007.  He suffered a wrist sprain that required physical therapy.

4.  A DD Form 2807-1, dated 12 May 2011, shows the applicant identified 24 of the possible 85 medical conditions/concerns listed in blocks 10 through 28.

5.  On 21 August 2011, the applicant signed his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 11 January through 15 June 2011.  This OER documents he had performed his military duties in an outstanding manner and was considered "best qualified."  His senior rater stated he was both mentally and physically fit and recommended him for promotion and further schooling.

6.  An undated DD Form 2808 reports that he underwent a physical examination for the purpose of separation.  The physician found the applicant to be qualified 


for service.  His physical profile was shown as 111111.  The physician listed the following summary of defects:

* Headaches
* Tinnitus
* Reactive airway disease
* Knee pain
* Neck pain

7.  On 1 September 2011, the applicant was honorably discharged from the Regular Army due to resignation.  He completed 6 years, 3 months, and 4 days of creditable active service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows the narrative reason for his separation was "miscellaneous/general reasons."

8.  A National Guard Bureau (NGB) Form 23A (Army National Guard Current Annual Statement), dated 1 June 2012, shows the applicant entered the NYARNG on 2 September 2011.  This document does not show him with any military service after 30 October 2011.

9.  In a rating decision dated 7 October 2011, the Department of Veterans Affairs (VA) awarded the applicant service-connection for the following service connected medical conditions:

* Intervertebral disc syndrome, lumbar spine, with status post vertebral fracture, thoracic spine at T8, 20 percent
* Left ankle strain, 10 percent
* Status post fracture, left wrist, 10 percent
* Left shoulder strain, 10 percent
* Right shoulder strain, 10 percent
* Status post vertebral fracture, cervical spine, at C5-C6, 10 percent
* Knee strain with instability, 10 percent
* Right knee strain with instability, 10 percent
* Tinnitus, 10 percent
* Obstructive lung disease secondary to exercise induced asthma,
10 percent
* Carpal tunnel syndrome, left wrist, 10 percent
* Neuralgia, left lower extremity, 10 percent
* Neuralgia, left lower extremity, 10 percent
* Left hamstring strain, 0 percent


* Right hamstring strain, 0 percent
* Allergic rhinitis, 0 percent
* Scars, nose and right upper lip, 0 percent

10.  Records show that in March 2013, the applicant discussed with his career manager an interest in another assignment.  However, he was informed that he would have to first be placed in the Individual Ready Reserve and update his records, to include taking an Army Physical Fitness Test.

11.  Title 10, U.S Code, chapter 61, provides 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.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

14.  Army Regulation 40-501 (Standards of Medical Fitness) provides the standards for medical fitness for retention and separation, including retirement.

	a.  This regulation provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):

		P - physical capacity or stamina
		U - upper extremities
		L - lower extremities
		H - hearing and ears
		E – eyes
		S - psychiatric

	b.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.


	c.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.

	d.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

15.  Army Regulation 635-40, paragraph 3-1, 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 reasonably may be expected to perform because of his or her office, rank, grade or rating.

16.  Title 38, U.S. Code, sections 310 and 331, 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 physically unfit 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 contends his military records should be corrected by overturning his resignation and considering him for a physical disability retirement because he received injuries to his back during intense combat operations in Iraq.

2.  The available evidence clearly shows the applicant was discharged from the Regular Army based on his voluntary resignation.  In conjunction with his separation, he underwent a physical examination wherein he was found medically qualified for service.  His physical profile did not indicate any medical conditions that would have prevented him from performing his military duties.

3.  There is no available documentary evidence that shows the applicant's fall in 2007 resulted in any medical condition that rose to the level of preventing him from performing his military duties.  There are no clinical notes, x-rays, or other medical documents to substantiate the applicant's claims of having a disability rising to the level of a retirement due to such medical condition.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, 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.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

5.  Because the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

6.  The applicant's OER ending just 3 months prior to his honorable discharge clearly reports that he was mentally and physically fit and he had performed his military duties in an outstanding manner.  He was recommended for promotion and further schooling.

7.  Records also show that in March 2013, after the submission of his request to this Board, that he had discussed with his career manger a desire for another military assignment.  This action appears to be contradictory to this request for a disability retirement.

8.  The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

9. 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:

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)                                         AR20120017854



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ABCMR Record of Proceedings (cont)                                         AR20120017854



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