IN THE CASE OF: 

		BOARD DATE: 6 March 2014

		DOCKET NUMBER:  AR20130009328 


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 physical disability retirement.

2.  The applicant states he has a line of duty investigation (LOD) and was not sent to a Physical Evaluation Board (PEB).  He claims he received treatment at the Department of Veterans Affairs (VA) hospital for post-traumatic stress disorder (PTSD) and left shoulder, low back and neck pain.  He was awarded 90% disability by the VA.

3.  The applicant provides a:

	a.  DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States), dated 27 November 2012.

	b.  Department of the Air Force Review Boards Office memorandum, dated 21 December 2012, returning his submission to the PDRB because that board is not authorized to process his application.

	c.  DD Form 214 (Certificate of Release or Discharge from Active Duty) ending 19 February 2005 showing he was released from active duty and transferred to his U.S. Army Reserve (USAR) unit.

	d.  Standard Forms (SF) 600 (Chronological Record of Medical Care) showing he was seen on:

		(1)  19 September 2005 for pain in his left shoulder (he hurt himself while tightening chains on a flat-bed truck), and elevated blood pressure.   

		(2)  9 December 2005 for a cold and cough.

		(3)  8 April 2006 for an upper respiratory irritation.

	e.  Specialist/Corporal Promotion Evaluation Report, dated 2 March 2006, in which he received ratings of "Excellence" or "Success" in all items except "Physical Fitness and Military Bearing" where he received a Needs improvement" rating with the comment "Needs to improve physical readiness to meet the standards of AR 600-9."

	f.    DD Form 214, ending 6 July 2006, showing he was released from active duty by reason of completion of required service and transferred to the USAR.

	g.  18 October 2006 orders showing he was reassigned, "TPU to TPU WITHIN THE COMMAND."

	h.  DA Form 3349 (Physical Profile), dated 15 September 2007, and SF 600 showing he had persistent lumbar pain and was not fit for duty.  A Medical/MOS Review Board (MMRB) was recommended.

	i.  29 July 2008 SF 600, fit for duty evaluation, showing he had PTSD, lower back pain, and cervicalgia (neck pain).  He was determined to have conditions that prevented him from performing his military duties.  He was "oriented to get administrative paper from his unit in order to continue the MEB process." 

	j.  Medical records showing his medical condition from 29 July 2008 to 
10 November 2009.

	k.  A 15 January 2010 DA Form 2173 (Statement of Medical Examination and Duty Status) showing the applicant was involved in an accident on 19 September 2005 in Iraq.  Item 30 (Details of Accident) shows the applicant's medical records state what happened to him, for arm and shoulder pain, also that he is suffering from PTSD.  A formal LOD was not required and the injury was considered to have been incurred in LOD. 

	l.  A Social Security Administration letter showing he was entitled to disability benefits since November 2007.

	m.  A 10 May 2012, Tissue Examination Report, from a hospital in Puerto Rico.
	n.  A DA Form 7349 (Initial Medical Review-Annual Medical Certificate).

	o.  Headquarters, 81st Regional Support Command, Orders 10-237-00021, dated 25 August 2012, showing he was released from his current unit of assignment and assigned to the Retired Reserve effective 15 September 2012, because he was medically disqualified – not by reason of own misconduct.  He was authorized early retirement under Title 10, U.S. Code, Section 12731b.

	p.  A copy of his DD Form 2 (Identification Card).

	q.  Medical documents from the Salisbury VA Medical Center (VAMC) for 
9 May 2012 to 21 June 2012.

	r.  A 1 August 2012 Magnetic Resonance Imaging (MRI) Lumbar Spine examination report.

	s.  VA Rating Decision letters, dated 10 November 2007, 9 June 2008,
 28 January 2010, and 21 January 2013.  He has a combined service-connected rating of 90% and is considered by the VA to be unemployable due to his service connected disabilities.

	t.  28 March 2013 Orlando VAMC Progress Notes.

	u.  Internet print-out from the Defense Finance and Accounting Service (DFAS) Web site describing Concurrent Retirement and Disability Pay.

	v.  three-page extract of Title 10, U.S. Code.

CONSIDERATION OF EVIDENCE:

1.  Following prior service in the U.S. Army Reserve (USAR) and the Puerto Rico Army National Guard (PRARNG), the applicant enlisted in the USAR on 14 April 1993 and reenlisted on 10 February 1996.  He held military occupational specialty (MOS) 88M (Motor Transport Operator).

2.  His records show he served on active duty in support of Operation Iraqi Freedom from 10 July 2005 to 6 July 2006.  His DD Form 214 shows he served in Kuwait/Iraq from 24 July 2005 to 12 June 2006.

3.  The applicant was honorably released from active duty by reason of completion of required active service on 6 July 2006 as a specialist (SPC)/E-4.  He had completed 11 months and 27 days during the period covered by the 
DD Form 214.
4.  His service medical records are not available for review.  

5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 or her office, grade, rank, or rating.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits:

* the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training
* the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence

6.  Paragraph 3-2b of Army Regulation 635-40 states that 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 adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of a disability.

7.  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 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 the 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant was released from active duty on 6 July 2006.

2.  The available evidence shows the applicant was seen for various medical issues while serving on active duty, including pain in his left shoulder (he hurt himself while tightening chains on a flat-bed truck), elevated blood pressure, a cold and cough, and for an upper respiratory infection.  

3.  However, there is no available evidence showing the applicant had any medical or psychiatric condition incurred while entitled to receive basic pay that was so severe as to render him medically unfit for retention on active duty.  The 
2 March 2006 Promotion Evaluation Report shows he was successfully performing his duties just one month prior to his release from active duty.

4.  His service medical records and the documentation behind his transfer to the Retired Reserve due to being medically unit for retention are not available.

5.  The VA service-connected disability compensation is strictly a VA benefit paid to a veteran because of injuries or diseases that occurred while serving on active duty or were made worse by active military service.  While the Army only rates those medical conditions that result in the Soldier being determined unfit for continued military service, the VA generally rates a Soldier for all conditions incurred in or aggravated by military service.  For example, the VA rated the applicant for PTSD, but this condition was neither diagnosed nor found unfitting during his active duty service.  The Army and the VA disability evaluation systems are independent of one another.  Only those conditions that render a member unfit for continued military duty will be rated by a PEB.  However, the VA can rate all service-connected conditions.

6.  In view of the above, there is insufficient evidence 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 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)                                         AR20110016871



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ABCMR Record of Proceedings (cont)                                         AR20130009328



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