BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130016278 


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 retired by reason of physical disability.

2.  The applicant states he sustained injuries during his third deployment.  He was not given the opportunity to transfer to the Warrior Care and Transition Unit  for recovery or proper out-processing.  He was told he would be transferred to the Individual Ready Reserve (IRR) and the Department of Veterans Affairs (VA) would handle his medical issues.  Because of his mental state at the time he did not question those actions but now, based on the VA disability rating, he should have been medically retired.

3.  The applicant provides copies of - 

* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* a DD Form 215 (Correction to the DD Form 214)
* a 25 June 2005 vehicle accident incident report 
* a Purple Heart Award Certificate with assorted line of duty and award documents
* a DD Form 2697 (Report of Medical Assessment) with associated documents
* A DA Form 2173 (Statement of Medical Examination and Duty Status) 
* two VA disability rating decisions
* 17 pages of VA medical records
* 23 pages of VA administrative records
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, a U.S. Army Reserve (USAR) Civil Affairs Specialist sergeant, served on active duty from 25 July 2004 through 7 March 2009, 6 August 2004 through 7 March 2009, and 6 April 2009 through 6 July 2010. 

3.  On 25 June 2005, during his second period of active duty, the applicant was involved in a vehicle rollover accident in Afghanistan.  The incident report indicates he suffered a sprained right wrist, a concussion, and a fractured middle finger.  The incident was found to be in the line of duty.

4.  On 6 January 2010, during his third period of active duty, the applicant was involved in a hostile fire incident with shrapnel injuries to his back and shoulder, for which he was awarded the Purple Heart.

5.  A 12 March 2010 Medical Examination found the applicant's wounds sustained on 6 January 2010 were in the line of duty and might result in a permanent partial disability.  His wounds were described as soft tissue injury with retained shrapnel fragments and a low back injury.

6.  A 10 March 2010 Post-Deployment Medical Requirements Checklist indicates no physical examination was given and the applicant was marked as "Go" on all required forms. 

7.  On a 27 March 2010 Report of Medical Assessment the applicant reported he was suffering from problems arising from a grenade blast with shrapnel in his left shoulder and right lower back, headaches, lower back pain, shoulder and arm pain and numbness, and would be seeking VA disability.  However, he reported, at item 15, that he had no conditions which limited his ability to perform his duties.

8.  The applicant was released from active duty on 6 July 2010 by reason of completion of required service.

9.  The applicant's complete service medical records are not available for review by the Board.

10.  A 9 July 2010 VA rating decision granted the applicant vocational rehabilitation entitlement. 

11.  A 13 October 2010 VA rating decision indicates the applicant submitted his original claim on 23 June 2010 (while he was still on active duty).  He was granted a combined 90 percent disability rating for -

* traumatic brain injury (TBI) - 70 percent
* migraine headaches - 30 percent
* post-traumatic stress disorder (PTSD) - 30 percent
* shrapnel wounds to the shoulder with impairment - 20 percent 
* chronic right wrist strain with complications - 10 percent
* chronic lumbar strain with bilateral sciatica - 10 percent
* scarring secondary to shrapnel wounds - noncompensable

12.  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.

13.  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 unfitting 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.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides at:

   a.  Paragraph 3-2b(1), 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 he can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.
   
   b.  Paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical or mental condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the record does not contain any evidence that he was not able to perform his assigned duties following his 8 January 2010 injuries.  In fact, he specifically stated on the 27 March 2010 Report of Medical Assessment that he did not have any conditions which limited his ability to perform his duties.  

2.  The award of a VA compensation rating does not mandate change of, nor demonstrate an error on the part of the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

3.  The applicant has not provided and the available record does not contain any service medical records affording him a diagnosis of a TBI, PTSD, or migraine headaches, the three principle conditions for which he was granted VA disability benefits, that prevented him from performing his duties. 

4.  The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  


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)                                         AR20130016278



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ABCMR Record of Proceedings (cont)                                         AR20130016278



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