BOARD DATE:	  8 May 2014

		DOCKET NUMBER:  AR20130012667 


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, in effect, his retirement due to completion of 20 or more years of qualifying service be changed to a medical retirement due to physical disability not incurred as a result of his own misconduct, effective         18 February 2011.

2.  The applicant states:

   a.  In January 2011, he was medically disqualified for retention in the U.S. Army Reserve (USAR) based solely on a diagnosis of post-traumatic stress disorder (PTSD).

   b.  On 4 May 2011, he was discharged and transferred to the Retired Reserve.
   
   c.  On 3 August 2012, he turned 60 years of age and began drawing regular Reserve retirement pay based on 16.79 years of creditable service.
   
   d.  On 12 September 2012, the Department of Veterans Affairs (VA) determined his PTSD was service-connected and granted him a disability rating of 50 percent (%).
   
   e.  Since he was medically disqualified by a service-connected condition that was responsible for greater than 30% disability, he should be medically retired.  


3.  The applicant provides:

* five DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* a letter from the Defense Finance and Accounting Service
* a memorandum from the Director, Medical Management Activity
* a DA Form 3349 (Physical Profile)
* Orders 11-095-00067
* a letter from the VA
* a letter from a Veterans Services Administrator

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 3 August 1952.

2.  Having prior service as a commissioned officer in the Army National Guard and USAR, he enlisted in the USAR on 29 January 2004 and held military occupational specialty 92Y (Unit Supply Specialist).  

3.  The applicant deployed to Kuwait/Iraq from 5 August 2005 to 24 July 2006.  

4.  On 3 April 2008, the U.S. Army Human Resources Command issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

5.  The applicant was ordered to active duty from 11 December 2007 to              13 November 2008 in support of Operation Enduring Freedom.

6.  The applicant's medical records are not available for review with this case; however, he provides a DA Form 3349 that shows on 31 October 2010, he received a permanent profile for PTSD, anxiety, depression, and hearing loss.  The form indicated the applicant did not meet the retention standards of           chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) and needed a medical evaluation board (MEB).

7.  The applicant’s Noncommissioned Officer Evaluation Report (NCOER) for the period   16 December 2009 through 15 December 2010 shows he was rated as a Supply Sergeant.  His rater commented in part that he “completes all tasks in a timely manner and beyond expectations” and “technically and tactically proficient for the duty position.”

8.  The applicant further provides a memorandum from the Director, Medical Management Activity, Fort McPherson, GA, dated 14 January 2011.  The memorandum:

   a.  Informed the applicant that as a result of his medical evaluation, he received a permanent profile that medically disqualified him from continued service in the USAR.  

   b.  Instructed the applicant to complete the Rapid Evaluation Process Checklist and return it to the USAR, Medical Management Activity in Florida by 13 February 2011.
   
   c.  Informed the applicant that failure to respond to the correspondence by the suspense date would result in his case being labeled as noncompliant with the next step being administrative action by his unit commander.
   
   d.  Required the applicant to comply with all Army regulatory requirements and guidance to include Army Physical Fitness Standards (within the limits of his profile) and Army weight control standards.  He was required to attend all scheduled Battle Assemblies and Annual Training (unless excused by his commander).  

9.  On 5 April 2011, Headquarters, 81st Regional Support Command (RSC) published Orders 11-095-00067, reassigning him from his assigned unit to the Retired Reserve effective 4 May 2011 due to being medically disqualified – not as the result of his own misconduct.

10.  On 8 April 2011, Headquarters, 81st RSC published Orders 11-098-00001, reassigning him from his current assignment to the Retired Reserve effective 15 April 2011 based upon his completion of 20 or more years of qualifying service for receipt of retired pay at age 60.  His AHRC Form 249-E (Chronological Statement of Retired Points) shows he was credited with completion of 23 years, 5 months, and 29 days of qualifying service for retirement.

11.  On 10 September 2012, the VA made a decision on his 18 February 2011 claim for service-connected compensation.  The VA assigned him 50% service-connected compensation for PTSD and 10% for tinnitus.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 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

13.  This regulation further states in:

	a.  Chapter 3 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

	b.  Paragraph 3-2b 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.

	c.  Paragraph 3-3b(1) that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.

14.  Army Regulation 40-501 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, a PEB rates all disabilities using the VA Schedule of Rating Disabilities (VASRD).

	a.  MEBs are convened to document a service member's medical status and duty limitations insofar as duty is affected by the member's medical status.  Situations that require consideration by an MEB include those involving Reserve component personnel on active duty for training or inactive duty for training, whose fitness for further military service upon completion of hospitalization is questionable, and those who require hospitalization beyond the termination of their tour of duty.  Consideration by an MEB also includes those involving a Reserve component member who requires evaluation because of a condition that may render him or her unfit for further duty.

	b.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

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%.  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%.

16.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

17.  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 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.  
  
DISCUSSION AND CONCLUSIONS:

1.  None of the applicant's service medical records are available for review with this case.  However, he provides selected documents that show he received a permanent profile that medically disqualified him from continued service in the USAR due to PTSD, anxiety, and depression.  



2.  The evidence of record shows he received instructions to complete the Rapid Evaluation Process Checklist and return it to the USAR, Medical Management Activity by 13 February 2011.  He was informed that failure to respond to the correspondence by the suspense date would result in his case being labeled as noncompliant with the next step being administrative action by his unit commander.  There is no evidence in the applicant’s record and he provides insufficient evidence to show he complied with the instructions.  It appears he was noncompliant and he was ultimately assigned to the Retired Reserve due to completing 20 or more years of qualified service for retired pay at age 60.

3.  More importantly, the NCOER he received for the period ending 15 December 2010, two months after he was given the physical profile and just one month before he was informed that the profile medically disqualified him from continued service in the USAR, showed that he was fully capable of performing his duties.  Therefore, it does not appear that he met the criteria for a medical retirement.

4.  The applicant erroneously presumes since the VA awarded him service-connected disability compensation for his PTSD, he should receive a medical retirement.  However, the Army and VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency do not establish an 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 for example may award ratings because a medical condition is 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.

5.  Referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  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 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.  

6.  In light of the foregoing, the applicant provided insufficient evidence to support his contention.  It appears his separation processing was neither in error nor unjust.  Therefore, his retirement was proper and correct at the time and there is no basis to change his retirement to a medical retirement.



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)                                         AR20130012667





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