IN THE CASE OF:	  

		BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130015888 


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, that he be processed through the Physical Disability Evaluation System (PDES) to review his medical condition at the time of his separation in November 2011 and that his separation be voided and he be retired by reason of permanent disability. 

2.  The applicant states that despite multiple unfitting conditions he was not offered a medical board, which should have been a requirement, and allowed to medically retire.  While he was still on active duty he had a hip condition which resulted in a total hip replacement.  He suffered from obstructive sleep apnea, anxiety and depression, lumbar strain, and a right shoulder rotator cuff injury which prevented him from firing his weapon.  All of his conditions existed prior to separation.  He minimized his conditions because he wanted to remain on active duty and when he brought the information forward he was given a cursory exam and was told that he was retainable and was processed for separation.  Less than 1 year later he was awarded a 100% disability rating by the Department of Veterans Affairs (VA).   

3.  The applicant provides copies of his denial by the Washington State Army National Guard (WAARNG), his DD Form 214 (Certificate of Release or Discharge from Active Duty), and his VA Rating Decision.





CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the WAARNG in the pay grade of E-7 when he was ordered to active duty in the Active Guard Reserve (AGR) program on       10 March 2005.

2.  On 3 June 2008, he was issued his notification of eligibility for retired pay at age 60 (20-Year letter).

3.  On 10 November 2011, the applicant was honorably released from active duty (REFRAD) due to completion of required service and was paid separation pay at the time of his REFRAD.  On the same day he was honorably discharged from the WAARNG and was transferred to the Retired Reserve.  

4.  On 30 August 2012, the applicant was granted a 90% disability rating by the VA that was subsequently raised to 100% for the following conditions:

* Obstructive sleep apnea
* Left hip avascular necrosis and total hip arthroplasty
* Bilateral pes planus
* Anxiety and depression
* Lumbar strain
* Right shoulder surgery and rotator cuff syndrome
* Right elbow lateral epicondylitis and osteoarthritis 
* tinnitus

5.  A review of his official records and noncommissioned officer evaluation reports (NCOER) failed to show that the applicant was unable to perform his duties in the WAARNG.  His last NCOER indicates that he failed to be retained with his peers by the Qualitative Retention Board.  The applicant’s records do not contain a copy of a separation physical.

6.   On 26 June 2013, the Adjutant General of the WAARNG denied the applicant’s request to have his REFRAD voided and to be medically retired.  He cited as the basis for his denial that the applicant was found fit for duty at the time of his REFRAD and that he did not have the authority to grant the applicant’s request. 

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that 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.  This regulation also provides, in pertinent part, 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.

8.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a 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 affects the individual's employability.

9.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the Physical Evaluation Board hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been retired by reason of permanent disability has been noted; however, there is insufficient evidence to support his contention.

2.  While the applicant has provided a copy of his VA Rating decision, he has failed to show through sufficient evidence of record or evidence submitted with his application that his conditions were deemed unfitting or that he could not perform his duties.  He admits that he minimized his conditions because he wanted to remain on active duty, thereby implying he was performing his duties.



3.  Therefore, in the absence of evidence to show that he was unfit for retention at the time of separation, there appears to be no basis to grant his request for disability separation or retirement or to provide the applicant with an evaluation under the PDES.

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)                                         AR20130015888





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ABCMR Record of Proceedings (cont)                                         AR20130015888



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