BOARD DATE:  15 May 2014

		DOCKET NUMBER:  AR20130014730 


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 records be reviewed by a medical evaluation board (MEB) and correction of the reason for separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

2.  The applicant states he has received a 100% disability rating from the Department of Veterans Affairs (VA) and should have received a disability rating from the Army as well.  He received no medical examination upon separation.

3.  The applicant provides:

* DD Form 149 (Application for Correction of Military Record), dated 21 May 2013
* Army Review Boards Agency letter, dated 18 July 2013
* his letter dated 8 August 2013
* copies of his military medical records for the period 25 May 2005 to 
18 July 2012
* VA rating decision letter, dated 18 September 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 23 April 2005.  He held military occupational specialty 09L (Translator Aide).

2.  He last entered on active duty on 16 November 2008.  He was released from active duty (REFRAD) on 26 December 2011 as a sergeant (SGT)/E-5.  He had completed 3 years, 1 month, and 11 days of active duty service for the period covered by the DD Form 214 and 2 years, 6 months, and 28 days of prior active duty service.  The reason for REFRAD is shown as completion of required active service.

3.  The applicant provided copies of his service medical records for the period the period 25 May 2005 to 18 July 2012 showing he was seen and received treatment on numerous occasions for medical complaints including:

* Patellar Chondromalacia (Knee pain)
* Back ache
* Eye pain
* Sinusitis
* Flat feet
* Obesity
* Right shoulder pain

4.  A review of the documents provided failed to reveal any Standard Forms 88 (Reports of Medical Examination), DA Forms 3349 (Physical Profiles), or any documents from the applicant's chain of command showing the applicant's medical condition was preventing him from performing any of his military duties. 

5.  In a 18 September 2012 rating decision the VA awarded the applicant a combined rating of 70% for the following service connected medical conditions:

* Bilateral pes planus (claimed as bilateral foot condition), 30%
* Chronic low back strain, 20%
* Chronic left knee strain, 10%
* Chronic right knee strain, 10%
* Chronic venous insufficiency, lower left extremity, 10%
* Chronic venous insufficiency, right lower extremity, 10%
* Mild ulnar neuropathy, left upper extremity, claimed as numbness pinky finger, left, 10%
* Bilateral plantar fasciitis (claimed as bilateral foot condition), 0%
* Lattice degeneration, both eyes, 0%
* Mild obstructive sleep apnea, 0%
* Erectile dysfunction, 0%
* Tinea of neck (claimed as skin condition), 0%

6.  His records contain a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) (NCOER) for the period 1 August 2010 through 31 July 2011.  The Rater marked the applicant as "Success" in all the areas of his performance with the exception of "Needs Improvement" in "Physical Fitness and Military Bearing."  The Rater commented, in part, "failed to meet body fat standards outlined in Army Regulation 600-9 (Army Weight Control Program); made no improvements and gained 4 pounds since last rating." 

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

8.  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 office, rank, grade or rating because of disability incurred while entitled to basic pay.

9.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be reviewed by an MEB and the reason for separation corrected on his DD Form 214. 

2.  Although the applicant provided copies of his medical records, there is no available evidence of any medical examinations, limiting physical profiles or any indication from his chain of command that he was unable to perform his military duties due to a medical condition.  In fact, his last NCOER shows he was satisfactorily performing his duties but needed improvement in physical fitness because he failed to meet the body fat standards.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

4. 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)                                         AR20120017854



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ABCMR Record of Proceedings (cont)                                         AR20130014730



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