IN THE CASE OF:	  

		BOARD DATE:	 15 October 2013 

		DOCKET NUMBER:  AR20130003755 


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 he be afforded due process, in effect, the opportunity to undergo separation processing under the physical disability evaluation system (PDES).  

2.  The applicant states he was wrongly discharged from the Puerto Rico Army National Guard (PRARNG) in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).  This did not allow him due process for a final disposition through the medical evaluation board/physical evaluation board (MEB/PEB) in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The PRARNG acted in an unjustified and arbitrary manner which prevented his medical discharge.  He was informed by the unit administrator that his condition of sleep apnea and the fact that he was awarded 50-percent (50%) service-connected disability compensation by the Department of Veterans Affairs (VA) prevented him from continuing his service in the ARNG.  His July 2003 line of duty (LOD) investigation should have been considered as evidence.  

3.  The applicant provides:

* Reconstructed DA Form 2173 (Statement of Medical Examination and Duty Status), dated 20 March 2012
* Letter, dated 19 February 2013, from the PRARNG G-1
* LOD letters, dated 14 May 2012
* Fit For Duty Determination Board (FFDDB) memorandum
* DA Form 3349 (Physical Profile), dated 7 June 2006
* DA Form 7349 (Initial Medical Review - Annual Medical Certificate)
* VA rating decision, dated 28 March 2006
* Mobilization orders
* Orders 093-509, dated 3 April 2007, transfer to the Retired Reserve
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

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's service records including his personnel and medical records are not available for review with this case.  An exhaustive search was undertaken to locate his complete military records.  Unfortunately, they could not be found.  However, the applicant submitted sufficient documents for the Board to conduct a fair and impartial review of this case.

3.  The applicant's available records show he was born on XX February 1958 and initially enlisted in the Regular Army on 9 May 1979.  On 28 August 1982, he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.

4.  He served in the USAR from 10 May 1983 to 10 May 1984 and after a break in service through 9 April 1994, he enlisted in the PRARNG on 18 April 1995.  He held military occupational specialties 92A (Automated Logistical Specialist) and 13B (Cannon Crewmember).  

5.  He appears to have served through multiple extensions in the PRARNG and he attained the rank/grade of sergeant (SGT)/E-5 in May 2002. 

6.  He was ordered to active duty on 14 January 2003 and subsequently served in Italy/Kuwait/Spain/Diego Garcia/United Arab Emirates from 7 May to 1 October 2003.  He was honorably released from active duty to the control of his state on 15 January 2004 by reason of completion of his required active service.
7.  The complete facts and circumstances surrounding the applicant's injury or illness are not available nor is there evidence of what occurred.  There is no evidence that:

* he was issued a permanent physical profile for an injury or illness that occurred while on active duty
* he suffered a condition that failed retention standards and led to a finding of unfitness at the time he was released from active duty
* he underwent an MOS Medical Retention Board (MMRB) or was referred for entry into the PDES
* There are no medical documents or correspondence available relating his disposition at the time

8.  He provides the following documents:  

	a.  DA Form 2173, constructed by Master Sergeant WLV of the PRARNG, on 20 March 2013, which shows that on 31 July 2003, during mobilization, the applicant presented a history of treatment for sleeping, respiratory, and snoring problems.  After his release from active duty, he continued to follow up with the local VA and he was diagnosed with mild obstructive sleep.  He was awarded 50% service-connected disability compensation by the VA.  An LOD was not completed.  He was erroneously discharged without referral to an MEB or a PEB.   

	b.  Standard Form 600 (Chronological Record of Medical Care), dated 7 June 2006, which shows he was seen for sleep apnea.  Also, a DA Form 3349 (Physical Profile), dated 7 June 2006, signed by a medical officer but not approved by the profiling officer or the approving authority.  It contains the entry "Y" under "Permanent Profile" and the reason is indicated as sleep apnea and left medial meniscus tear. 

	c.  DA Form 7349, dated 7 June 2006, which shows he had left knee “operation meniscus” and sleep apnea.  An official indicated the applicant was unfit for service due to sleep apnea rated at 50% and attached the VA rating decision, dated 28 March 2006, which shows he received service-connected disability compensation at the rate of 50%. 

	d.  PRARNG FFDDB Acknowledgement Statement, dated 7 June 2006, which shows he was informed he had received a permanent physical profile and he would be transferred to the Retired Reserve.  He acknowledged receipt of this statement. 

	e.  Memorandum, dated 2 August 2006, initiated by the PRARNG Deputy Chief of Staff for Personnel who states an FFDDB convened on 7 June 2006 at Camp Santiago Training Center, PR.  The applicant was evaluated for sleep apnea and left meniscus tear.  He is unable to comply with his MOS.  He has 17 years of service and he requested to transfer to the Retired Reserve.  A permanent profile was assigned under the P-4 and L-2 of his PULHES with assignment limitations of unfit for service.

	f.  Orders 093-509, issued by the PRARNG on 3 April 2007, transferring him to the Retired Reserve effective 9 June 2006.  

	g.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) which shows he was honorably discharged from the ARNG on 9 June 2006.  The authority for discharge is shown as paragraph 8-39a, National Guard Regulation (NGR 600-200) Implementation Policy, Retired Not Yet Age 60. 

9.  On 3 January 2007, the PRARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (15-year letter).  This letter notified him that he had completed at least 15 but less than 20 years of qualifying service for retired pay at age 60, due to his medical disqualification, and that he had requested transfer to the Retired Reserve.

10.  He also submitted a memorandum, dated 19 February 2013, from the PRARNG G-1 who opines that the applicant's request should be approved.  The PRARNG G-1 adds that:

	a.  After reviewing and conducting detailed research of his case, this office agrees and recommends approval of his request.  The evidence clearly shows that the condition used as the basis for the administrative medical discharge was incurred "In the Line of Duty" while on active duty in support of Operation Noble Eagle in the year 2003.  There was no evidence showing his referral to an MEB as documented on his DA Form 3349 and "Fit for Duty Board" conducted by the PRARNG.  Instead, he was wrongfully issued an administrative Honorable Discharge.

	b.  There is no evidence that shows he was properly counseled as to his rights to referral to an MEB/PEB for the purpose of disability benefits determination as a result of the injuries clearly incurred while entitled to basic pay.  It was the commander’s and PRARNG leadership’s responsibility to ensure he was evaluated through the PDES in order to determine if retirement for permanent/temporary physical disability was merited.

	c.  It is the opinion of this office that the applicant's request be approved and adjudicated by the proper authority level (ABCMR) in the interest of justice on his behalf.  Unfortunately, since he is no longer a member of PRARNG, this command does not have the authority to order reinstatement or to change his retirement status to disability retirement.  The PRARNG recommends that his PRARNG and Department of the Army records be corrected by: 

		(1)  directing the Office of The Surgeon General (OTSG) to contact [Applicant] and arrange, via appropriate medical facilities, a physical evaluation; and if appropriate, by referral to an MEB and PEB; 

		(2)  That OTSG is directed to use appropriate invitational travel orders to accomplish the MEB/PEB if necessary, and PRARNG-G1-HSSB; 

		(3)  In the event a formal PEB becomes necessary, the individual is issued invitational travel orders to prepare for and participate in consideration of his case by formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB, and

		(4)  Should a determination be made that the applicant should have been separated under the PDES that the ABCMR proceedings serve as the authority to void his administrative discharge and to issue him the appropriate disability separation retroactive to his original ARNG separation date with entitlements to all back pay and allowances, less any entitlements already received. 

	d.  This office is in the best position to ensure that all those actions not completed at the time of his discharge are completed.  This is in the best interest of the Government and, most importantly, the Soldier. 

11.  An advisory opinion was obtained on 22 April 2013 from the NGB in the processing of this case.  An NGB official recommended approval of the applicant's request.  The official stated: 

	a.  Summary: Applicant requests that he be given an opportunity to have an MEB and a PEB review his Line of Duty (LOD)/medical documentation in order for him to receive a proper medical disposition upon his discharge from the PRARNG.  

	b.  Recommendation: Approval.  The applicant's medical records should be sent before an MMRB; an MEB for disability evaluation processing; and then be referred for a PEB as necessary.  If a determination cannot be made by reviewing the Soldier's available medical records, OTSG should contact the Soldier and provide invitational travel orders to arrange for the evaluation to be conducted via the appropriate medical facilities.  Should a determination be made that the applicant should have been separated under the PDES that the ABCMR proceedings serve as the authority to void his administrative discharge and to issue him the appropriate disability separation retroactive to his original discharge date; if not, then the applicant be so notified with entitlement to back pay and allowances that may be due as a result of this correction; less any entitlements already received.

	c.  Discussion:  He states that he was wrongly discharged from the PRARNG. He also suggests that the State did not follow the proper regulations/guidelines concerning his medical condition by having his records reviewed and thus having a decision made by the appropriate MEB/PEB.  Additionally, his LOD dated 31 July 2003 was not considered as evidence in order to allow the medical boards to make an informed determination regarding his medical condition.  

		(1)  The PRARNG has provided a memorandum, dated 19 February 2013, supporting his request.  The State indicates that they reviewed and researched the concerns addressed by the Soldier.  The memorandum states, "The evidence clearly shows that the condition used as the basis for the administrative medical discharge was incurred "In the Line of Duty" while on active duty in support of Operation Noble Eagle in the year 2003.  There was no evidence showing Soldier referral to MEB as documented on DA Form 3349 and Fit for Duty Board conducted by PRARNG.  Instead, he was wrongfully issued an administrative Honorable discharge."

		(2)  Additionally, PRARNG states there is no evidence that shows the Soldier was properly counseled as to his rights to accept a referral to an MEB/PEB for purpose of disability benefits determination as a result of the injuries incurred while on active duty.  The Soldier was ordered to active duty on 14 February 2003 per PRARNG state order 048-262 dated 25 February 2003.  His DD Form 214 shows he was released from active duty on 15 January 2004.

		(3)  DA Form 2173, dated 31 July 2003, shows the Soldier developed a medical condition while on active duty.  DA Form 2173 shows that the injury was considered to be in the LOD; and the LOD documentation had not been processed according to regulations prior to the Soldier being released from active duty.  

		(4)  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), section 2-8, states, "the commander, Medical Treatment Facility (MTF) will (a) provide a thorough and prompt evaluation when a Soldier's medical condition becomes questionable in respect to physical ability to perform duty; (b) appoint a PEB Liaison officer (PEBLO) to counsel Soldiers undergoing physical disability processing; (c) ensure MEB proceedings referred to the PEB are complete, accurate, and fully documented as outlined in            AR 40-400 (Patient Administration), chapter 7, and chapter 4 of this regulation."  The unit’s actions should have been in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3, Section 3-3, "Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB as defined in AR 40-400 and will be referred to a PEB as defined in AR 635-40 with the following caveats: (b) Soldiers pending separation in accordance with provisions of AR 635-200 (Active Duty Administrative Separations) or AR 600-8-24 (Officer Discharges) authorizing separation under other than honorable conditions who do not meet medical retention standards will be referred to an MEB."

		(5)  In regard to the procedures followed when the Soldier was separated from the ARNG, the case file does not include documentation showing a notification memorandum from the separation board or receipt of this memorandum by the Soldier.  DOD Directive 1332.18 dated 4 November 1996, part 3, section 3.9, states in part, "Service members who are otherwise eligible for, and who have the minimum number of years of service to qualify for, military retirement under any law in effect at the time of their physical disability evaluation, and who are pending separation for unfitness because of physical disability or medical disqualification, shall be afforded the opportunity to elect disability separation or to apply for, and, if approved, be retired for length of service.  Section 3.13 states Service members referred for physical disability evaluation shall be afforded, at appropriate stages of processing, comprehensive counseling on the significance of the actions proposed and the related rights, entitlements and benefits."  The memorandum from PRARNG, dated 13 February 2013, indicates that the Soldier was not afforded this opportunity.

	d.  The PRARNG concurs with this recommendation.

12.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

13.  NGR 600-200 prescribes the criteria, policies, processes, procedures and responsibilities to classify, assign, utilize, and transfer within and between states, enlisted Soldiers of the ARNG.  Chapter 8 lists reasons, applicability, codes, and board requirements for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both.  Paragraph 6-35l(8) states Soldiers may be discharged for being medically unfit for retention per Army Regulation  40-501.  

14.  AR 635-40 establishes the 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.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several LOD criteria to be eligible to receive retirement or severance pay benefits.  One of the criteria is 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.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

	a.  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. 

	b.  Paragraph 3-1 states 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.

	c.  Paragraph 3-2b (processing for separation or retirement from active duty) states 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.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that—

		(1)  The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

		(2)  An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.

15.  DOD Directive 1332.18 covers separations or retirement for physical disability.  Paragraph 3.3 states the sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank, or rating because of disease or injury.  Any member of the Ready Reserve who is pending separation for a non-duty related impairment or condition shall be afforded the opportunity to enter the PDES for a determination of fitness.  If determined fit, the Secretary concerned may deem the member medically qualified for retention in the Ready Reserve in the specialty for which he was found fit.

16.  DOD Instruction 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for service members with service-incurred or service aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.  Paragraph E2.P2.3 states members of the Ready Reserve with non-duty related impairments and who are otherwise eligible will be referred into the PDES upon the request of the member or when directed under service regulations.  Referral will be solely for a determination of fitness for duty.

17.  AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.

	a.  Paragraph 3-3 (Disposition) states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635-40 with the following caveat:  U.S. Army Reserve (USAR) or ARNG Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 9 and chapter 10 of this regulation.

	b.  Paragraph 3-30 (neurological Disorders) concerns narcolepsy, sleepwalking, or similar sleep disorders. (See paragraph 3–41).  The evaluation and treatment of these diagnoses by a neurologist or other sleep specialist should be routinely sufficient.

	c.  Paragraph 3-41 (General and miscellaneous conditions and defects) states one of the causes for referral to an MEB is sleep apnea.  Obstructive sleep apnea or sleep-disordered breathing that causes daytime hypersomnolence or snoring that interferes with the sleep of others and that cannot be corrected with medical therapy, nasal continuous positive airway pressure (CPAP), surgery, or an oral appliance is a cause for referral.  The diagnosis must be based upon a nocturnal polysomnogram and the evaluation of a pulmonologist, neurologist, or a privileged provider with expertise in sleep medicine.

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 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.

19.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with the lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was medically separated from the PRARNG in 2006 and transferred to the Retired Reserve after having completed more than 15 but less 20 qualifying years of service.  He contends that he was denied due process and that his disqualifying condition was incurred while he was serving in an active duty status. 

2.  The evidence he provides shows he served on active duty from 14 January 2003 to 15 January 2004.  Nothing in the available evidence shows he incurred an injury or an illness while on active duty that failed retention standards or led to a finding of unfitness.  As such, he was properly released from active duty to the control of his state ARNG.  

3.  Nearly 2 years and 5 months after his release from active duty, it appears he provided a copy of his VA rating decision to his state ARNG.  This triggered an FFDDB by the PRARNG.  The applicant was so notified and he was ultimately discharged from the ARNG and transferred to the Retired Reserve on 9 June 2006.  

4.  The FFDDB notification letter to the Soldier routinely asks the Soldier for line of duty evidence regarding his disqualifying medical condition.  In the absence of such evidence, the Soldier is informed that he may request a non-duty related PEB (NDR PEB) or, if he has the requisite number of qualifying years of service, he may elect to be placed in the retired Reserve.  Placement in the Retired Reserve is not a default position and must be elected by the Soldier.  The applicant did so which suggests he did not want consideration of his case by an NDR PEB. 

5.  The PRARNG statement that "there is no evidence that Soldier was properly counseled … " is unclear and misleading.  Since the applicant was transferred to the Retired Reserve, it is apparent that he was notified of his disqualifying condition, did not submit documents to show that his malady was incurred in line of duty, did not elect to undergo an NDR PEB (to argue that he was fit), and in effect elected to be placed in the Retired Reserve.  It is unclear whether the PRARNG is stating that they cannot document that the applicant was properly counseled, or if they are stating that the notification system represents inadequate counseling.

6.  There are no medical records to trace back his medical condition of sleep apnea.  A DA Form 2173, reconstructed some 10 years after his release from active , is insufficient by itself to show he was unfit.  If the applicant did in fact suffer from sleep-disordered breathing that causes daytime hypersomnolence or snoring that interferes with the sleep of others, the question that arises is whether such condition was corrected with medical therapy, nasal continuous positive airway pressure (CPAP), surgery, or an oral appliance.  Furthermore, such diagnosis and potential treatment must be based upon a nocturnal polysomnogram and the evaluation of a pulmonologist, neurologist, or a privileged provider with expertise in sleep medicine.  The recreation of a DA Form 2173 and stamping it as an LOD is does not take the place of a neurological evaluation.  

7.  The key to the applicant's case is that both the PRARNG and NGB based their decisions on rather inaccurate or incomplete information.  For example, there are no records whatsoever from the applicant's deployment or from any period during his mobilization that shows he had neurological symptoms.  

	a.  First, his 2004 separation physical which would have listed his medical status upon separation is not available for review with this case.  It is unknown what injuries or illnesses he sustained during his deployment.  Nevertheless, his records show he was qualified for service from the date of his release from active duty (2004) until the date the FFDDB notified him of his disqualification in June 2006. 

	b.  Second, his 2006 permanent physical profile does not translate to an automatic consideration by an MEB.  The key element in the disability system is the presence of a medical condition that renders a Soldier unable to reasonably perform the duties required of his grade and military specialty.  The applicant was released from active duty in January 2004 and from the ARNG in June 2006.  

	c.  Third, 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.  The applicant's service was not interrupted by a physical condition or medical necessity.  He simply completed his required active service and he was honorably released from active duty

	d.  Fourth, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions or an acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.  

	e.  Fifth, the assumption that since the VA awarded him service-connected disability for sleep apnea, the Army should have, in effect, done the same.  There are two important concepts that require clarification.  

		(1)  One, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and an award of a rating by another agency do 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.

		(2)  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. 

	f.  Sixth, in the applicant's case, there wasn't a single condition actively limiting his ability to perform his military duties.  There was no diagnosis of any conditions being disabling at the time of his separation.  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.  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. 

8.  Notwithstanding the favorable advisory opinion, there is insufficient evidence to grant him the requested relief.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  Additionally, it has now been over 9 years since the applicant was released from active duty.  An arbitrary ruling in his favor, without knowing what his records would have shown, would cause prejudice to the Government.  The doctrine of laches is invoked in his case.  In view of the foregoing, there is insufficient evidence to grant him 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)                                         AR20130003755



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130003755



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1