IN THE CASE OF:	  

		BOARD DATE:	    26 March 2014

		DOCKET NUMBER:  AR20130012416 


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 correction of his records to show he was medically discharged.

2.  The applicant states he was separated from military service in 2003.  The Department of Veterans Affairs (VA) rated him for service-connected disabilities and, therefore, he should have been medically discharged.

3.  The applicant provides copies of four Army medical records, two separation documents, and his VA disability ratings.

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 Regular Army (RA) on 16 March 1989.  Through a series of reenlistments he continued to serve in the RA and he attained the rank of specialist (E-4).

3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably released from active duty on 5 February 1999 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 4, based on completion of required active service, and transferred to Troop A, 108th Cavalry, Louisiana Army National Guard (LAARNG).  It also shows:

   a.  he had completed 9 years, 10 months, and 20 days of net active service this period;

   b.  his extension of service was at the request and for the convenience of the government; and
   
   c.  he was entitled to full involuntary separation pay in the amount of $17,526.54.

4.  A DA Form 2166-7 (Noncommissioned Officer Evaluation Report) covering the period December 2000 through November 2001, shows the rater evaluated the applicant as "fully capable."  The senior rater evaluated the applicant's overall performance as "successful (3)" and his overall potential for promotion and/or service in positions of greater responsibility as "superior (2)."

5.  A copy of the applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) is not available.  However, an NGB Form 22A (Correction to NGB Form 22) shows he was discharged from the LAARNG on 
5 February 2003.

6.  A review of the applicant's Army Military Human Resource Record (AMHRR) failed to reveal evidence of a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB).

7.  In support of his application the applicant provides the following documents:

   a.  Standard Form (SF) 600 (Chronological Record of Medical Care), dated 13 November 1991, that shows the applicant sought follow-up treatment for bruised ribs and a contusion (with stitches) above his left ear.  X-rays failed to reveal any rib fractures.

   b.  DD Form 2697 (Report of Medical Assessment), SF 93 (Report of Medical History), and SF 88 (Report of Medical Examination), prepared for the applicant's separation examination on 9 December 1998.  The applicant indicated "head irritation" and lower back pain.  The examining physician noted that the applicant was seen by dermatology and that he had no significant medical history.  The physician found the applicant qualified for separation.

   c.  Two VA rating decisions that show:

* on 19 November 2004, the applicant was granted service connection for scar, residual head injury with chronic cellulitis and alopecia (10%); lumbosacral strain (10%); headaches, residuals, head injury (0%)
* on 15 April 2011, the applicant was granted service connection for traumatic brain injury with residual, post-traumatic headaches (40%) (previously rated as residuals, head injury); lumbosacral strain (10%); scar, residual head injury with chronic cellulitis and alopecia (10%)

8.  Army Regulation 40-501 (Medical Fitness Standards) provides information on medical fitness, standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides that possession of one or more of the conditions listed in the chapter does not mean automatic retirement or separation from the Service.  

   a.  Physicians are responsible for referring Soldiers to an MEB.  It is critical that MEBs are complete and reflect all of the Soldier's medical problems and physical limitations.

   b.  The PEB will make the determination of fitness or unfitness.  The PEB, under the authority of the U.S. Army Physical Disability Agency, will consider the results of the MEB, as well as the requirements of the Soldier's military occupational specialty, in determining fitness.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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.  

   a.  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 in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

   b.  Chapter 3 (Policies) provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

10.  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 error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different disability ratings based on the same impairments.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his military records should be corrected to show he was medically discharged because the VA has granted him service connection for conditions that were incurred during military service.

2.  Records show the applicant was released from active duty on 5 February 1999 and discharged from the LAARNG on 5 February 2003.  The evidence of record also shows that the applicant successfully performed his military duties at least through November 2001.

3.  There is no evidence of record to show that the applicant's medical conditions were medically unfitting for retention in accordance with Army Regulation 40-501. The evidence of record shows the applicant underwent a physical examination that included a complete review of his medical history and conditions and he was found qualified for separation.  Thus, there is no evidence of record that shows the applicant's conditions were unfitting.

4.  Both statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning.

5.  Therefore, in view of the foregoing, there is an 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)                                         AR20130012416



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ABCMR Record of Proceedings (cont)                                         AR20130012416



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