BOARD DATE:	  31 October 2013

		DOCKET NUMBER:  AR20130002786 


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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to show he was discharged by reason of permanent disability.

2.  The applicant defers his comments to counsel. 

3.  The applicant allows counsel to provide supporting documents. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s DD Form 214 be corrected to show he was discharged or retired by reason of permanent disability.

2.  Counsel states, in effect, that the applicant should have been discharged or retired by reason of permanent disability due to injuries he sustained during his deployment to Iraq.  He goes on to state that the applicant has remained homebound since his deployment in July 2006 and was unable to meet his drilling requirements despite being threatened with disciplinary action.  

3.  Counsel provides a two-page extension of the applicant's DD Form 149 (Application for Correction of Military Records) explaining his position and a list of attachments provided with his application.



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.  On 24 April 2002, the applicant enlisted in the Pennsylvania Army National Guard (PAARNG) and completed his training as an M1 Abrams Crewman.  He was promoted to the rank of sergeant on 17 August 2004.

3.  On 4 January 2005, he was ordered to active duty in support of Operation Iraqi Freedom.  He deployed to Iraq during the period 27 June 2005 through 
13 July 2006.

4.  On 13 July 2006, he was honorably released from active duty (REFRAD) due to completion of required service.

5.  On 21 April 2008, he was honorably discharged from the PAARNG due to the expiration of his term of service.  He was assigned a reenlistment eligibility (RE) code of “1.”

6.  A review of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File, failed to show any evidence indicating that the applicant was unable to perform his duties.  However, the medical documents provided by the applicant with his application show he was treated for Post-Traumatic Stress Disorder (PTSD) and other complaints while in Iraq and in each instance he was returned to duty.  

7.  A review of the documents provided by the applicant show he is currently receiving service-connected disability from the Department of Veterans Affairs (VA) for PTSD and other disorders.

8.  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.
9.  Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

10.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a VA rating does not establish error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affects the individual's employability.

DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, it appears the applicant was properly REFRAD in accordance with the applicable laws and regulations with no indication of any violations of his rights.

2.  Accordingly, he was properly returned to his PAARNG unit where he continued to serve until he was honorably discharged due to the expiration of his term of service and he was assigned an RE code of “1” which indicates he was eligible for reenlistment. 

3.  The totality of the evidence, including the medical records most proximate to the applicant’s discharge, overwhelmingly support the conclusion that the applicant, upon separation from active duty, met medical retention standards and did not have a condition warranting a Medical Evaluation Board/Physical Evaluation Board or entry into the Physical Disability Evaluation System.  

4.  There is no evidence to show he was not properly diagnosed at the time or that his discharge was not conducted in accordance with the applicable laws and regulations then in effect.

5.  Accordingly, there appears to be no basis to grant the applicant's request.




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)                                         AR20130002786



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130002786



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1