IN THE CASE OF:	  

		BOARD DATE:	  23 May 2013

		DOCKET NUMBER:  AR20120019966 


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 honorable discharge from the U.S. Army Reserve (USAR) to a medical retirement. 

2.  The applicant states he was injured in the line of duty.  He requested his unit complete a medical discharge; however, when the administrative office submitted the discharge paperwork, it was submitted as just an honorable discharge only.  He continuously called and requested the paperwork be done and it took so long. He was very frustrated and at the time they called him to let him know that a discharge was being done.  He was told it was sent in as an honorable discharge only and not a medical discharge.  He was informed that it would take another 2 years to get a medical discharge.  He had been waiting for almost 18 months and 2 more years just seemed like an eternity.  He needed closure.  He has now come to believe that because the administrative personnel did not do their job to begin with properly, he is being cheated out of what he deserves which is to be recognized as a decorated, combat wounded Soldier - and not just as an honorable one.

3.  The applicant provides his USAR discharge orders, a memorandum form the Command Surgeon, and Department of Veterans Affairs (VA) rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Army National Guard (ARNG) on 25 March 2003 and he held military occupational specialty (MOS) 11B (Infantryman). 
2.  He was honorably released from the ARNG as an unsatisfactory participant and he was transferred to the USAR Control Group (Reinforcement) to complete his remaining service obligation.  

3.  He entered active duty on 18 June 2007 and subsequently served in Kuwait/Iraq from 28 August 2007 to 9 June 2008.  He was honorably released from active duty on 4 July 2008 to the control of the USAR. 

4.  He was trained in and held MOS 88M (Motor Transport Operator) and he was promoted to sergeant/E-5 on 1 May 2010 in MOS 88M.  He was assigned to the 296th Transportation Company.  

5.  He again entered active duty on 9 July 2009 and subsequently served in Kuwait/Iraq from 30 August 2009 to 25 June 2010.  He was honorably released from active duty on 19 August 2010 to the control of the USAR. 

6.  He received an annual Noncommissioned Officer Evaluation Report (NCOER) covering the rating period 1 May 2010 through 30 April 2011.  His rater rated his performance as "Success" and "Fully Capable" in all values and NCO responsibilities as well as overall potential.  He passed the Army Physical Fitness Test (APFT) and met the height and weight standards.   His senior rater rated his performance and potential as superior.  

7.  On 3 May 2011, by letter, the Chief Health Services Branch, 81st Regional Support Command (RSC) notified the applicant that he recently received a permanent physical profile that disqualified him from continued service in the USAR.  He was further advised that by law, he had options related to adjudicating his medical fitness:  

* Transfer to the Retired Reserve, 20-year or 15-year letter, if otherwise eligible
* Honorable discharge
* Consideration by a non-duty related physical evaluation board (PEB)
* Consideration by a PEB if he could produce a valid line of duty determination for the profiled condition

8.  On 6 December 2011, the applicant acknowledged he had been counseled regarding receipt of the notification of medical unfitness and retention, the options available to him, and his rights under the law and regulation.  He elected an honorable transfer. 

9.  On 26 March 2012, the 81st RSC, Fort Jackson, SC, published orders honorably discharging him from the USAR for medical unfitness.  
10.  The applicant was counseled by various individuals regarding his options, including the company commander and the U.S. Army Reserve Career Counselor.

11.  He provides:

	a.  A memorandum, dated 22 March 2011, from the 81st RSC Command Surgeon informing him that a review of his medical records indicated he did not meet retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) for post-traumatic stress disorder (PTSD), claustrophobia, hearing loss, and shoulder pain.

	b.  VA rating decision, dated 8 July 2011, awarding him service-connected disability compensation for PTSD and a second decision, dated 17 May 2012, awarding him service-connected disability compensation for right rotator cuff tendonitis. 

12.  His service medical records are not available for review with this case.  Similarly, his separation physical examination is also not available for review.  Additionally, his service records do not contain:

* a permanent physical profile
* A DA Form 2173 (Statement of Medical Examination and Duty Status)
* A line of duty determination
* a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade
* a mental status evaluation that confirms a diagnosis of PTSD or any mental health problem, illnesses, or disease
* a medical examination that warranted his entry into the Army Physical Disability Evaluation System (PDES)

13.  Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-4 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS/Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages:  the medical evaluation board (MEB) and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

14.  Army Regulation 635-40 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 office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

15.  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 Schedule of Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

16.  Title 10, USC, 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.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

17.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

18.  Title 38, USC, 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 an 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.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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.  Most of the applicant's medical records are not available for review with this case.  However, he contends he sustained a line of duty injury but does not provide any medical evidence to support his contention.  It appears the Command Surgeon reviewed his medical records and determined he was unfit for retention in the USAR.  He was notified, counseled, advised, and presented with four options, indicated below, and he elected an honorable discharge:

* Transfer to the Retired Reserve 
* A non-duty related PEB (NDR-PEB)
* Presenting evidence of a disabling condition that was incurred while on active duty
* An honorable discharge

2.  Referral to the Army PDES requires that a designation of "unfit for duty" be determined before an individual can be separated from the military because of an injury or medical condition.  Here, neither his medical records nor the 81st RSC's packet that shows what conditions were unfitting, are available for review.  Nevertheless, he made a choice. 

3.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.  Since the applicant’s service medical records and the documents the Command Surgeon reviewed to determine he was unfit for retention in the USAR are not available, there is insufficient evidence to grant 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)                                         AR20120019966





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ABCMR Record of Proceedings (cont)                                         AR20120019966



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