IN THE CASE OF:	  

		BOARD DATE:	  11 February 2014

		DOCKET NUMBER:  AR20130008237 


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 a medical retirement.

2.  The applicant states, in effect:

	a.  he was not medically retired from the military and he should have been.  

	b.  he left active duty in March 2002 and he was discharged from the U.S. Army Reserve (USAR) in September 2007 and he wants a retroactive medical retirement.     

	c.  the Department of Veterans Affairs (VA) and Social Security Administration (SSA) have diagnosed him with injuries incurred from his active duty military service.

	d.  after he was discharged, the VA and SSA diagnosed him with the following conditions:

* chronic sinusitis
* post-traumatic stress disorder (PTSD)
* bipolar
* schizophrenia
* sleep apnea
* dental problems
* hearing loss
* ear infections
* right middle finger, minimal strain left middle finger status post healed
* individual unemployability
* chronic fatigue syndrome
* losing memory
* losing sight
* blurry thoughts
* depression
* traumatic brain injury/head injury
* heart attacks/heart murmurs
* bilateral leg condition/dead limbs
* pulmonary disease/lung disease/lung damage/lung infection/toxic smoke in lungs
* ear, nose, and throat toxic infection
* back injury/muscle/nerve/bone condition
* nerve damage
* abnormal weight loss due to Gulf War service
* cardiovascular signs and symptoms/endocarditis/coronary artery disease (CAD)
* gastrointestinal signs and symptoms
* headaches
* joint pains all over
* neurological signs/hemiparesis/limb-kin/apraxia/sensory
* neuropsychiatric signs and symptoms/PTSD/bipolar/schizophrenia/anxiety disorder
* skin fungus/ring worms
* upper and lower respiratory disorders
* irritable bowel syndrome
* mood disorder 

	e.  several Army doctors told him he was severely injured while he was working as a contractor in Iraq/Kuwait and Afghanistan during the period April 2008 to June 2012.  

3.  In an email, dated 17 June 2013, he further states:

* he sent a box of VA medical records and a compact disc (CD) with medical records on it
* he has over 20 injuries and has taken over 150 medications
* all of these injuries/medications were for military injuries
* the VA is going to increase his disability compensation to 100% because of his military injuries
* he wants the Board to retire him right now

4.  The applicant provides:

* several thousand pages of VA medical records
* physician medical records
* two CD's containing medical records and VA and SSA claim documentation 
* letter, dated 5 April 2013, from the VA to a Member of Congress
* psychiatric evaluation, dated 31 July 2012, and progress notes

 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 prior inactive service in the USAR, the applicant enlisted in the Regular Army on 13 March 1997 for a period of 3 years.  He completed his training and was awarded military occupational specialty 92G (food service specialist).  On 8 March 2000, he was honorably discharged for immediate reenlistment.  He reenlisted on 9 March 2000 for a period of 2 years.  On 
8 March 2002, he was honorably released from active duty (REFRAD) for completion of required active service.  He was transferred to the USAR Control Group (Reinforcement) to complete his remaining service obligation.

3.  He was ordered to active duty from the USAR on 15 March 2003 in support of Operation Enduring Freedom.  He was promoted to staff sergeant effective 
19 May 2003.  On 6 June 2003, he was honorably REFRAD for completion of required active service.  

4.  A DD Form 2807-1 (Report of Medical History), dated 5 September 2007, shows he reported "I am currently processing for both a medical retirement and VA compensation.  I have had a history of migraines and breathing problem.  The VA says that I need to be operated on for sinusitis.  Last week I had pain in my back and for a couple of months I have had pain in my right rest (apparently he means wrist)."
5.  A DD Form 2808 (Report of Medical Examination), dated 5 September 2007, shows he was found qualified for service (pending review by command authority) with a physical profile of "311111."  Item 78 (Significant or Disqualifying Defects) of this form lists chronic sinusitis with deviated septum as a disqualifying defect.  It was recommended that he see an  "ENT" (ears, nose, throat) doctor for his sinus problem.  

6.  On 13 September 2007, he was honorably discharged from the USAR.

7.  Medical records show:

	a.  he was issued a permanent profile "3" for headaches and sinus condition on 26 November 2007.

	b.  on 26 November 2007, the Physical Review Board determined he did not meet medical retention standards due to migraine headaches, deviated septum, chronic sinusitis with bilateral inferior turbinate hypertrophy per ENT evaluation, dated July 2007.  

8.  There is no evidence which shows the applicant served in the Army following his discharge from the USAR in September 2007.

9.  He provides documentation, dated 7 May 2013, from the VA which shows service connection was granted for:

* chronic obstructive pulmonary disease (30%)
* chronic sinusitis (claimed as breathing and respiratory problem) (0%)

10.  The VA determined the following conditions were not related to his military service and service connection was denied:

* PTSD
* schizophrenia and bipolar disorder
* headache
* anxiety and depression
* sleep apnea
* dental disability
* hearing loss
* right middle finger disability
* ear infections
* abnormal weight loss
* cardiovascular signs and symptoms hearing loss
* gastrointestinal signs and symptoms
* muscle pain
* neurological signs and symptoms
* skin fungus and ring worm
* chronic fatigue syndrome
* irritable bowel syndrome
* heart attacks
* brain injury
* sight loss

11.  The VA denied his claim for service connection for migraine headaches and back injury because the evidence submitted was not new and material.  The VA also denied entitlement to the 100% rate because it wasn't shown he was unable to work as a result of his service connected disability/disabilities.

12.  He provides numerous medical records (progress notes, lab results, consult requests, radiology reports, and psychiatric assessments/evaluations), dated 2002 to present, which show he was treated for numerous medical conditions including:

* depression
* sinus problems
* sleep disorder
* bipolar disorder with mixed psychosis
* migraine headache
* back pain
* acute stress disorder

13.  He also provides a psychiatric evaluation and progress notes, dated 2012, which show he was diagnosed with bipolar with psychotic features.  

14.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

15.  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 of less than 30 percent.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  It states that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who 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 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 indicates that a Soldier is fit.

17.  Title 38, U.S. Code, sections 310 and 331, permit 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically retired from active duty in 2002 or from the USAR in 2007 for his military injuries.

2.  The evidence shows he was honorably REFRAD on 8 March 2002 for completion of required active service.  He continued to serve in the USAR until he was honorably discharged on 13 September 2007.     

3.  Prior to his discharge from the USAR in 2007, he had a physical profile of "311111" which indicates he was physically capable of performing his military duties.   

4.  There is no evidence of record and the applicant did not provide any evidence that shows a medical condition rendered him unable to perform his military duties in 2002 or 2007 or that his medical conditions were incurred while entitled to basic pay.  Therefore, there is insufficient evidence to show his medical retirement was warranted.

5.  It is acknowledged the VA has granted him an overall or combined 30% disability rating for chronic obstructive pulmonary disease and chronic sinusitis.  However, an award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different laws and its own policies and regulations, the VA, has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only those conditions found to be unfitting.

6.  Although he contends several Army doctors told him he was severely injured while he was working as a contractor in Iraq/Kuwait and Afghanistan during the period April 2008 to June 2012, he was not entitled to basic pay during this period.

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)                                         AR20130008237





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ABCMR Record of Proceedings (cont)                                         AR20130008237



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