IN THE CASE OF:	  

		BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20120022515 


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, in effect, correction of his military records to show he was retired due to physical disability.

2.  The applicant states, in effect, that his Obstructive Sleep Apnea (OSA) was found to be a medically disqualifying condition by the North Carolina Army National Guard (NCARNG).  He was subsequently discharged and transferred to the Retired Reserve.  After his discharge from the NCARNG the Department of Veterans Affairs (VA) awarded him a 50-percent disability rating for his OSA.  He contends that because his VA disability rating exceeds the 30-percent rating required for a medical retirement he should be medically retired.

3.  The applicant provides:

* Gaston County, Department of Veterans Services brief, dated 
28 November 2012
* Two DD Forms 214 (Report of Separation from Active Duty/Certificate of Release or Discharge from Active Duty)
* VA Form 21-526 (Veteran's Application for Compensation and/or Pension) with allied documents
* Medical Disqualification for Retention memorandum, dated 10 April 2010
* DA Form 3349 (Physical Profile), dated 10 April 2010
* Notification of Medical Disqualification for Retention, dated 29 April 2010
* Notification of Eligibility for Retired Pay at Age 60 with 15 Years of Service, dated 25 May 2010
* Orders 145-801, dated 25 May 2010
* National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement), prepared 7 January 2011
* VA Service Connected Compensation Decision, dated 11 April 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 was born on 3 April 1966.  Having prior active duty and reserve service in the U.S. Navy, he enlisted in the ARNG, on 27 July 2004, and served as a Food Service Specialist during this period of service.

3.  His Army Military Human Resource Record (AMHRR) contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that on 
6 August 2005 he was ordered to active duty in support of Operation Iraqi Freedom with service in Iraq for the period 1 October 2005 to 25 September 2006.  

4.  He was released from active duty on 20 November 2006 at the completion of required active service and he was returned to his ARNG unit.  He completed 
1 year, 3 months and 15 days of net active service this period.  

5.  His complete medical records are not available for review; however, his Army Military Human Resource Record (AMHRR) contains a DA Form 3349, dated 
10 April 2010, which shows he was issued a permanent 3 (P3) profile for OSA.  The examining physician indicated that the applicant did not meet the medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) paragraph 3-41(c)(1).

6.  On 29 April 2010, the applicant was notified by the personnel officer for the Department of Crime Control and Public Safety, Joint Force Headquarters, NCARNG, that he no longer met the Army medical standard for retention based on his current medical condition of OSA.
7.  In response to the notification of medical disqualification, he acknowledged receipt of the notification that he did not meet retention standards.  This document also shows he was counseled and presented with three options: (1) an honorable discharge; (2) transfer to the Retired Reserve (if qualified); or (3) non-concur and have his case referred to a non-duty related physical evaluation board (PEB).  He elected to be transferred to the Retired Reserve.

8.  On 25 May 2010, he was notified of his eligibility for Retired Pay at Age 60 with 15 years of service and the Department of Crime Control and Public Safety, Joint Force Headquarters, published Orders 145-801 ordering his discharge from the ARNG effective 29 June 2010, in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-351(8) by reason of being medically unfit for retention.

9.  He was honorably discharged on 29 June 2010 and transferred to the Retired Reserve.  His NGB Form 22 shows he completed 17 years, 11 months and 
3 days of total service for retired pay. 

10.  He submits:

	a.  A VA Compensation Decision, dated 11 April 2012, which shows the applicant had several medical conditions evaluated.  His sleep apnea condition was rated at 50-percent service-connected disability, effective 26 August 2009.

	b.  A brief in support of his request written by his VA Service Administrator.  This official stated that on 11 April 2012, nearly two years after the applicant was discharged, the VA granted the applicant a 50-percent disability rating for his service connected sleep apnea.  Accordingly, it was clear that the applicant was medically disqualified from further service in the NCARNG by a service-connected condition that was responsible for greater than 30-percent disability.  The applicant should therefore be "medically retired" with an effective date of 
29 June 2010.

11.  Army Regulation 135-178 (Army National Guard and Army Reserve Separation of Enlisted Personnel), paragraph 12-1 (Medically Unfit for Retention), states Reserve enlisted Soldiers who are no longer qualified for retention by reason of medical unfitness under the standards of Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation Including Retirement), will be discharged unless they are granted a waiver of the medical disqualification or are eligible and request transfer to the Retired Reserve under the provisions of Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), paragraph 6-1 (Eligibility).

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement or severance pay benefits.  One of the criteria is to have a disability and that the disability must have incurred or been aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his military records to show he was retired due to physical disability was carefully considered and determined to lack merit.

2.  The available evidence shows that on 10 April 2010 he was issued a permanent profile for OSA.  Regulatory guidance requires that the disability must have incurred or been aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  There is insufficient evidence to show his unfitting condition was incurred while entitled to basic pay; therefore, he was not entitled to a medical separation.

3.  The evidence of record confirms he elected to be discharged from the ARNG and transferred to the Retired Reserves having completed 17 years of qualifying service for non-regular retirement.  As such, he met the statutory requirement for receipt of a 15-year letter.  On 25 May 2010, he was issued his 15-year letter which notified him that he was eligible to receive non-regular retired pay upon attaining age 60.

4.  Subsequent to his discharge the VA awarded the applicant a 50-percent disability rating for his OSA.  The applicant and his VA Services representative contend that because he was medically disqualified from further service in the NCARNG by a service-connected condition that was responsible for greater than 30-percent disability, the applicant should be "medically retired" with an effective date of 29 June 2010.

5.  A VA rating does not establish entitlement to medical retirement or separation.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency's examinations and findings.

6.  In view of the above, his request should be denied.

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)                                         AR20120022515





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022515



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1