BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130009961 


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 honorable discharge be changed to a medical discharge.  In effect, he requests correction of his records to show he was medically discharged by reason of disability. 

2.  The applicant states he received an honorable discharge.  Influenced by his own separation date, he was advised by Army personnel in positions of authority and by counsel to bypass the medical board process.  He believes he was given false information on the benefits that he was entitled to while still in the Army.  He was told by his outprocessing medical provider that the Army medical retirement was not an option and that there was a chance he could deploy again if the Army deemed him fit.  If he had known what he now knows, he would have followed up with the medical evaluation board (MEB) process.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Front page of a DD Form 2807-1 (Repot of Medical History)
* Back page of a DD Form 2808 (Report of Medical Examination)
* Multiple Standard Forms 600 (Chronological Record of Medical Care)
* Post-Deployment Health Assessment Mental Health Pre-Screening
* Warrior Administered Retrospective Casualty Assessment Tool
* Vaccine Administration Record
* Multiple Adult Preventive and Chronic Care Flow Sheets
* Page 12 of a Department of Veterans Affairs (VA) rating decision
* VA Form 21-4138 (Statement in Support of Claim)
* Post-Service Radiology Report of the L-Spine
* Social Security Administration (SSA) Application Summary for Disability Insurance Benefits
* Patient Lab Inquiry
* Page 6 of a 7-page DD Form 2796 (Post-Deployment Health Re-assessment)
* DD Form 2795 (Pre-Deployment Health Assessment)
* Medical Record - Supplemental Medical Data
* Individual Readiness Record
* DA Form 3349 (Physical Profile)
* Smallpox Vaccination Initial Note
* Hearing Conservation Data
* Front page of a DD Form 2796 (Post-Deployment Health Assessment)
* Enlistment physical and allied documents

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 records show he enlisted in the Regular Army on 7 September 2004 for a period of 3 years and 22 weeks.  He held military occupational specialty 21B (Combat Engineer).  He served in Iraq from 2 December 2005 to 7 November 2006 and from 1 December 2007 to 31 January 2009.  He attained the rank/grade of specialist/E-4.  

3.  He was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 4, on 5 June 2009, by reason of completion of required active service.  He had been retained on active duty for 484 days and he completed 4 years, 8 months, and 29 days of active service. 

4.  None of his service medical records are available for review with this case.  However, he provides the documents below consisting of selected service medical records as well as VA-related records:

	a.  Front page of a DD Form 2807-1, dated 12 March 2009.  This form shows he underwent a separation physical at Evans Army Community Hospital, Fort Carson, CO.  He answered in the positive to several questions related to chronic cough; ear, nose, or throat; vision; hearing; back pain; numbness; and knee trouble.  However, the back page is missing.  The origin of his answers is unclear.  Likewise, it is unclear what the examining official noted with regard to these answers. 

	b.  Page 2 of a 3-page DD Form 2808, dated 9 February 2009.  This page only reflects the results of his urinalysis, height/weight, blood pressure, and audiometer reading.  The page that would have shown if he was found unfit for retention was not submitted.  Likewise, the page that would have assigned him a PULHES and show his medical restrictions was also not submitted. 

	c.  Post-Deployment Health Assessment Mental Health Pre-Screening, dated 10 December 2006.  This form shows he completed a post-deployment health assessment pre-screen and indicated his overall health was the same.  He indicated that there were no physical health problems (illness or injury) or emotional problems (depression, anxiety).  The medical provider marked "Referral is NOT indicated."  

	d.  VA Form 21-4138, dated 13 November 2009, wherein the applicant indicated he was receiving service-connected disability compensation at the rate of 50 percent for post-traumatic stress disorder (PTSD).  He voiced his disagreement with the rating and stated the VA should grant him a higher rating because he had been receiving counseling and therapy for this condition since his discharge from the military. 

	e.  Page 12 of what appears to be a VA rating decision.  This page shows he was denied service-connection for right groin tingling, carpal tunnel syndrome, and left arm numbness. 

	f.  SSA Application Summary for Disability Insurance Benefits and correspondence from the SSA in relation to the length of time it would take to process his application. 

	g.  Post-service radiology report related to the L-spine, dated 7 February 2011.  The reports states there is evidence of a left parts defect L5/S1 but no disc herniation, foraminal, and/or canal compromise of the L5/S1.
	h.  Standard Form 600, dated 15 April 2009, shows that he was seen in an outpatient status at the Behavioral Health Clinic to assess his work status condition.  Several conditions are identified by him on this form, including an adjustment disorder, post-concussion syndrome, concussion with loss of consciousness, and migraines.  He appears to have complained of hearing loss.  He was involved in an improvised explosive device (IED) blast 3 years prior.  He had a negative magnetic resonance imaging and no other associated issues. 

	i.  Multiple Adult Preventive and Chronic Flow Sheets, dated on various dates in 2009, that contain several illnesses, particularly adjustment disorder, tinnitus, and hearing loss.  

	j.  Standard Form 600, dated 23 September 2006, shows he was involved in an IED blast while serving as a gunner.  The IED exploded to the rear, driver's side of the vehicle.  He did not black out; he did not have blurry vision; he did not suffer from ringing, diminished hearing, or headaches.  There were no ruptured ear drums, concussion, or symptoms of such conditions. 

	k.  DA Form 3349, dated 1 December 2006, temporary, with an expiration date of 1 January 2007.  This profile shows he suffered from hearing loss.  The profile noted significant hearing changes/loss and that he must see Audiologist to determine deployability.  No MEB was required. 

	l.  DA Form 3349, dated 9 February 2009, temporary, with an expiration date of 9 March 2009.  This profile shows a hearing deficit was identified and required full audiological evaluation to confirm.  No exposure to noise in excess of 85 decibels or weapons firing without the use of properly-fitted hearing protection.   

	m.  Several other medical documents related to his enlistment in 2004. 

5.  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.  

	a.  The PDES assessment process involves two distinct stages: the MEB and the Physical Evaluation Board (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 3-2b (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 adequately perform 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.

6.  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.  Once a determination of physical unfitness is made, disabilities are rated using the VA Schedule of Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. 

7.  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.

8.  Title 38, U.S. Code, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his honorable discharge should be changed to a medical discharge.  

2.  The applicant served on active duty from 7 September 2004 to 5 June 2009.  He does not state what specific physical or behavioral health condition made him medically unfit for military service; however, he appears to believe that since the VA awarded him service-connected disability compensation for various conditions, possibly PTSD, the Army should have done the same. 

	a.  First, nothing in the records and nothing he provides indicates he suffered from a condition that shows he was unable to reasonably perform the duties required of his former grade and military specialty, rendered him medically unfit, and/or warranted his entry into the PDES.  A comprehensive review of his records together with the evidence he provides does not support a finding of unfitness. 

	b.  Second, his record is void of a permanent physical profile.  He provides two temporary physical profiles that restricted his activities for one month each due to hearing loss.  One of the physical profiles states "No MEB."  Most importantly, however, even if there was one, a 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/her grade and military specialty.  The applicant did not provide evidence that he was unable to perform the duties required of his grade and military specialty.  

	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 available evidence shows the applicant's service was not interrupted by a physical condition or medical necessity.  It was interrupted by his decision to voluntarily separate at the conclusion of his contractual obligation, including his retention. 

	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 adequately perform the duties of his/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, he appears to confuse military fitness with service-connected disability compensation.  In effect, he believes since the VA awarded him service-connected disability for PTSD the Army should have done the same.  There are two important concepts that require clarification.

		(1)  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 (emphasis added) 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.
		(3)  In the applicant's case, there was not a single condition actively limiting his ability to perform his military duties.  There was no diagnosis of any conditions that failed retention standards or were 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 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.

3.  There does not appear to be an error or an injustice in his case.  He has submitted insufficiently substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's 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)                                         AR20130009961



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ABCMR Record of Proceedings (cont)                                         AR20130009961



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