IN THE CASE OF:	  

		BOARD DATE:  7 January 2014

		DOCKET NUMBER:  AR20130013783 


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 retirement.

2.  The applicant states:

* he was injured while on active duty several times, the most serious in October 1992 when he fell 15-20 feet wearing full combat gear during an authorized training function
* the result has been three separate surgical procedures and additional on-going medical treatment
* he receives Department of Veterans Affairs (VA) compensation (60%)
* though he was found to be fit for duty during a medical review board while on active duty, he recently was advised his DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects a reentry eligibility (RE) code of 3C which means he is unable to reenlist due to a medical condition
* he was not advised of the RE code or its meaning
* he now knows his DD Form 214 should have read medical retirement   
 
3.  The applicant provides undated VA documentation.





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 on 12 September 1986 for a period of 3 years.  He completed his training and was awarded military occupational specialty 95B (military police).  He attained the rank of specialist four.

3.  His Medical Evaluation Board (MEB) narrative summary states on 4 October 1989, while on a training maneuver in Germany, he was climbing a 10 foot security fence when he fell with full combat gear and injured his left foot.  

4.  In March 1991, he was issued a permanent physical profile for chronic plantar fasciitis secondary to traumatic left foot injury. 

5.  On 3 September 1991, an MEB diagnosed the applicant with chronic plantar fasciitis of the left foot secondary to traumatic injury.  The MEB recommended his referral to a physical evaluation board (PEB).  On 12 September 1991, he disagreed with the findings and recommendations and filed an appeal.  On 
12 September 1991, the approval authority considered his appeal, but confirmed the original MEB findings and recommendations.

6.  On 23 September 1991, a PEB found him fit for duty. 

7.  On 1 October 1991, the U.S. Army Physical Disability Agency approved the PEB's findings.

8.  On 19 November 1991, he requested early separation and his request was approved on 25 November 1991.


9.  On 10 January 1992, he was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 16-12, by reason of convenience of the government – Fiscal Year (FY) 1992 Early Transition Program.  Item 27 (RE Code) of his DD Form 214 shows the entry "3C" (the applicant has provided a separate application for amendment of his RE code).     

10.  On 22 March 1994, he was honorably discharged from the U.S. Army Reserve (USAR).

11.  He provides VA documentation which shows he was granted service connection for:

* right lower extremity radiculopathy (claimed as gait change) – 10%
* chronic right knee strain – 10%
* right thumb condition – 10%
* left tibialis posterior dysfunction with collapsing mid foot, status post navicular resection with degenerative disease – 20%
* degenerative disease (arthritis) of lumbar spine – 20%
* left shoulder bursitis with rotator cuff tendinopathy – 10%
* dyshydrotic dermatitis – 0%

12.  His overall or combined evaluation is 60%.

13.  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.

14.  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.

15.  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 the mere presence of an 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, or rank.  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.

16.  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 was injured several times while serving on active duty and he should have been medically retired rather than honorably separated.

2.  The evidence shows he was found fit for duty on 23 September 1991 and he was honorably REFRAD on 10 January 1992 under the FY 1992 Early Transition Program per his request.  In addition, he continued to serve in the USAR until he was honorably discharged in 1994. 

3.  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 duties.    Therefore, there is insufficient evidence to show his medical retirement was warranted.

4.  It is acknowledged the VA has granted him an overall or combined 60% disability rating for various medical conditions.  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.



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)                                         AR20130013783





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ABCMR Record of Proceedings (cont)                                         AR20130013783



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