IN THE CASE OF:	  

		BOARD DATE:	  27 March 27, 2014

		DOCKET NUMBER:  AR20130006833 


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 his record be corrected to show he was placed on the Permanent Disability Retired List.

2.  The applicant states:

   a.  He is a 100 percent service-connected disabled veteran who served in Bosnia, Afghanistan, and Iraq.  During his service he told his commanders about his combat stress, neck pain, headaches, and his inability to see and breathe after nuclear, biological, and chemical exposure.  

   b.  He requested a medical retirement while still in service and was told he should go to the Department of Veterans Affairs (VA).  He further states he did not receive a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB).

3.  The applicant provides copious amounts of his service records in addition to  his service and post-service medical records. 

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 enlisted in the Mississippi Army National Guard (MSARNG) on                  30 November 1999.  He completed training and was awarded military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).  

3.  The applicant served in Bosnia for the period 16 September 2001 to 23 March 2002.  His record contains a post-deployment medical assessment, dated           25 February 2002, authenticated by the applicant and a health care provider which deemed him a "healthy Soldier."

4.  The applicant served in Afghanistan for the period 23 March through            26 August 2003.  His record contains a DD Form 2808 (Report of Medical Examination) and DD Form 2807-1 (Report of Medical History), dated 17 October 2003.  The purpose of the examination was for demobilization and although the applicant noted exposure to loud noises, pain in his feet, and eye trouble, it was determined the applicant was qualified for continued service.

5.  On 10 July 2004, the applicant underwent a retention physical for the ARNG.  The applicant noted he was in good health and it was determined he was qualified for continued service.

6.  The applicant served in Kuwait/Iraq for the period 11 January through               23 December 2005.  Medical records provided by the applicant show he received medical treatment during this period for ankle pain, seasonal allergies, and insomnia with possible depression.  

7.  On 28 December 2005, the VA received an application for compensation and/or pension from the applicant in which he claimed service-connected compensation for bilateral knee conditions, bilateral ankle conditions, lower back pain, a sinus condition, insomnia, and post-traumatic stress disorder (PTSD).

8.  On 29 December 2005, the applicant underwent a comprehensive medical assessment for demobilization.  The health care provider noted he was having trouble sleeping at the end of his tour and that he had a thrombosed antecubital vein although he was not referred for further evaluation.

9.  On 30 March 2006, based on the evidence the applicant had previously provided, the VA denied the applicant service-connected disability for his previously listed conditions. 

10.  On 25 May 2006, he reenlisted for six years in the MSARNG in the rank/grade of sergeant/E-5.  In addition, his record contains a DA Form 2166-8 (Noncommissioned Officer Evaluation Report) that evaluated him as an Infantry Team Leader for the period 1 December 2005 through 30 November 2006, which shows he was rated as "among the best" by his rater.  His senior rater indicated his overall performance was in the successful range and his potential for promotion and/or service in positions of greater responsibility was in the superior range.  

11.  On 19 July 2007, the applicant was honorably discharged from the ARNG for enlistment into another component of the U.S. Armed Forces. 

12.  On 20 July 2007, he enlisted in the California Air National Guard (CAANG) for six years in the grade of E-5.

13.  On 5 August 2009, he was honorably discharged from the CAANG.

14.  The applicant provides numerous copies of his service and post-service medical records, VA rating decisions, and miscellaneous correspondence; however, there is insufficient evidence in the available service record to show he sustained a disabling medical condition or was issued a permanent physical profile while serving in the MSARNG or CAANG.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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 office, grade, rank, or rating.  It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  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.  This regulation also states the following:

	a.  Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.
	
	b.  Paragraph 3-2b(2) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraph 3-2b(2)(a) and 3-2b(2)(b) state that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.
	
	d.  Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD).  The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty.  There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

16.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 gives 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 individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in the military service

17.  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.

18.  Title 38, U.S. Code, sections 1110 and 1131, permits 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.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  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's request for correction of his record to show he was determined to be unfit by the PDES and retired by reason of physical disability has been carefully considered.

2.  The purpose of the PDES is to maintain an effective and fit military organization with the maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the Army and the Soldier are protected.

3.  There is insufficient evidence in the available records and the applicant did not provide sufficient evidence to show he was ever determined to have a medical condition which was of such severity that it would have warranted his entry into the PDES.  

4.  The applicant believes he should have received a medical retirement for his various medical conditions due, in part, to being granted a VA disability rating for his service-connected conditions.  However, an award of a rating by another agency, such as the VA, does not establish error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical fitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability.  

5.  The PDES provides that 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 a physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform based on the Soldiers office, grade, rank, or rating.

6.  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.  The applicant appears to have been physically or medically fit at the time of his discharge from the ARNG in July 2007 and subsequent enlistment in the CAANG.  In view of the foregoing, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.




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)                                         AR20130006833





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ABCMR Record of Proceedings (cont)                                         AR20130006833



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