BOARD DATE: 1 August 2013
DOCKET NUMBER: AR20130000371
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was separated due to "Disability-other."
2. The applicant states that his DD Form 214 shows the reason for his separation as "Completion of Required Active Service." Chapter 33, GI Benefits requires he have greater than 6 months of active duty service and service-connected disability of 30%. He has both of these but St. Louis records will not update his eligibility for the program benefits because of the current reason for his separation. The reason he was separated is on his DD Form 214-Medical, Walter Reed Hospital, D.C. He was separated from active service due to injuries and inability to perform duties.
3. The applicant provides:
* 12 August 2012, Department of Veterans Affairs (VA) letter
* his 13 December 2012 memorandum to VA Benefits
* DD Form 214
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, a staff sergeant (SSG) in the Wisconsin Army National Guard (WIARNG), last entered into active duty on 10 August 2005. He held military occupational specialty 74D (Chemical Operations Specialist).
3. The applicant was honorably released from active duty on 7 July 2006 as a SSG. He had completed 10 months and 28 days during the period covered by the DD Form 214 and had 1 year, 10 months, and 28 days of prior active duty service. His DD Form 214 shows in:
a. item 8a (Last Duty Assignment and Major Command): Medical Holdover Company HS,
b. item 8b (Station Where Separated): Walter Reed, DC 20307-5001,
c. item 23 (Type of Separation): Release from Active Duty; and
d. item 28 (Narrative Reason for Separation): Completion of Required Active Service.
4. The applicant's medical records are not available for review.
5. He provides a 12 April 2012 VA letter showing he has a 30% rating for service-connected disability.
6. His record contains:
a. 17 April 2006, U.S. Army Human Resources Command, Alexandria, Virginia, AHRC-PDZ-RC-M Orders A-04-608935, showing he was to be retained to participate in the Reserve Component medical holdover medical retention processing program for completion of medical care and treatment. The reporting date is listed as 12 April 2006 and the period is for 179 days.
b. 6 July 2006, Headquarters, Walter Reed Army Medical Center, Washington, D.C., Orders 187-001. These orders show that effective 7 July 2006 he was released from active duty, not by reason of physical disability.
7. Title 38, U.S. Code, sections 1110 and 1131, permits 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 was held over for medical treatment and when that treatment was completed, he was honorably released from active duty on 7 July 2006. The reason for his separation is "Completion of Required Active Service."
2. The award of VA compensation does not mandate disability retirement or separation from the Army. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before he can be medically retired or separated.
3. There is no evidence showing the applicant was medically unfit at the time of his release from active duty. As such, the narrative reason for separation shown on his DD Form 214 appears to be correct and there is insufficient evidence to change it.
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 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) AR20120022117
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ABCMR Record of Proceedings (cont) AR20120000371
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