IN THE CASE OF:	  

		BOARD DATE:	    18 July 2013

		DOCKET NUMBER:  AR20130000628 


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 records to show he was medically discharged with medical retirement pay instead of discharged for miscellaneous/
general reasons with an under honorable conditions (general) discharge.

2.  The applicant states he was suffering from a mental illness that is service-connected.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 April 2003
* Department of Veterans Affairs (VA) rating decision, dated 2 August 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.  Having had prior enlisted service (April 1989 through December 1996), the applicant was appointed as a Reserve warrant officer of the Army, executed an oath of office on 13 December 1996, and entered active duty that date.

3.  He held military occupational specialty (MOS) 250N (Network Management Technician).  He served in a variety of staff assignments and he was promoted to chief warrant officer two (CW2) on 13 December 1998.

4.  During March 2001, he received a referred officer evaluation report (OER) covering the rating period 1 September 2000 through 12 March 2001 for his duties as Network Management Technician while assigned to the 235th Signal Company, Fort Gordon, GA.  This OER shows:

	a.  He passed the Army Physical Fitness Test (APFT) and met the height and weight standards.

	b.  His rater described his technical performance as of the highest quality; however, he displayed poor judgment in that he exhibited candid disrespect to his company commander.

	c.  His senior rater also described his technical performance as that of the highest caliber; however, his disrespect of his company commander led to his relief from duty.

5.  During March 2002, he received another referred OER covering the rating period 13 March 2001 through 12 March 2002 for his duties as Network Management Technician while assigned to Headquarters and Headquarters Company, 93rd Signal Brigade, Fort Gordon.  This OER shows:

	a.  He passed the APFT and met the height and weight standards.

	b.  His rater stated he (the applicant) was a capable performer with above average technical skills when working in his functional area.  However, he had difficulty reporting to duty, concentrating on tasks, and/or following oral and written guidance from superiors.  He would not live up to his commitment to perform up to standards.

	c.  His senior rater also concurred that the applicant had the requisite skills to serve in this capacity.  However, his personal and professional conduct revealed he lacked the overall skills to serve in the Army.  The senior rater recommended his immediate elimination.

6.  The complete facts and circumstances surrounding his elimination from the Army are not available for review with this case.  However, his service record contains:

	a.  Orders 080-0900, issued by Headquarters, U.S. Army Signal Center, Fort Gordon, dated 21 March 2003, ordering the applicant's reassignment to the U.S. Army Transition Center for outprocessing and discharge effective 17 April 2003 in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-5 (Unqualified Resignation).

	b.  A DD Form 214 that shows he was discharged on 17 April 2003 under the provisions of Army Regulation 600-8-24, paragraph 5-3 for miscellaneous/
general reasons with an under honorable conditions (general) characterization of service.  He was further assigned a separation code of "KND."

7.  His service medical records, including his separation physical and Report of Mental Status Evaluation, are not available for review with this case.  There is no indication in his available military record that shows:

* he was issued a permanent physical profile
* he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS
* he was referred to the Army Physical Disability Evaluation System (PDES)

8.  He provides a copy of his VA rating decision, dated 2 August 2012, that shows the VA awarded him service-connected disability compensation for schizophrenia (paranoid type), cervical degenerative joint disease, and left and right knee strain.

9.  Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve component and discharge functions for all officers on active duty for 30 days or more.  It provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  Paragraph 3-5 (Rules for processing unqualified resignation) states any officer on active duty for more than 90 calendar days may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the Service; officer is under a 
suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in part, that the SPD code of KND is the appropriate code to assign to Soldiers who voluntarily resign under the provisions of Army Regulation 600-8-24, paragraph 3-5.

11.  Title 10, U.S. Code, 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 635-40 (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 (Standards of Medical Fitness), 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 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 or not 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 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.

12.  Title 10, U.S. Code, 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, U.S. Code, 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.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties; may compromise or aggravate the Soldier's health or well-being if they were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; and/or may prejudice the best interests of the government if the individual were to remain in the military service.

14.  Department of Defense Instruction (DODI) 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for members with service-incurred or service-aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve.

15.  DODI 1332.38, section E3.P3.4, states that determining whether a member can reasonably perform his or her duties includes consideration of:

	a.  common military tasks – duties, for example, whether the member is routinely required to fire his/her weapon, perform field duty, or wear load bearing equipment or protective gear.

	b.  physical fitness test – whether the member is medically prohibited from taking the respective service's required physical fitness test.

	c.  deployability – when a member's office, grade, rank or rating requires deployability, whether a member's medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the continental United States.

	d.  special qualifications – for members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment, or the member has an alternate branch or specialty, or whether reclassification or reassignment is feasible

16.  Title 38, U.S. Code, 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 on the part of the Army.  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.  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.  The applicant served on active duty as a warrant officer from 13 December 1996 through 17 April 2003.  His record is void of the facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged under the provisions of Army Regulation 600-8-24, paragraph 3-5, for miscellaneous/general reasons, with an an under honorable conditions (general) character of service.

2.  The issuance of a discharge under the provisions of Regulation 600-8-24, paragraph 3-5, required the applicant to have voluntarily, willingly, and in writing, request a voluntary resignation.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no evidence that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.

3.  There is no evidence of record and he provides none that shows he was physically unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  He does not provide any service medical records to corroborate his mental unfitness at the time of his discharge in 2003.

4.  The available record shows he received multiple evaluations that clearly show he was competent, successfully performed his MOS, passed the APFT, met height/height standards, and noted for his high quality/caliber technical performance.

5.  He provides his VA rating decision that shows the VA awarded him service-connected disability compensation for schizophrenia (paranoid type), cervical degenerative joint disease, and left and right knee strain, and therefore the Army should have, in effect, done the same.  There are two important concepts of clarification.

	a.  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	b.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA could potentially rate all service-connected conditions.  In the applicant's case, there was no disabling condition to be identified, evaluated, or rated.
6.  The applicant failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability.

7.  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)                                         AR20130000628



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ABCMR Record of Proceedings (cont)                                         AR20130000628



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