IN THE CASE OF: 

		BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130016931 


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 case be considered by a Medical Evaluation Board (MEB).

2.  The applicant states:

	a.  he wants his discharge for parenthood changed so he can go to an MEB.

	b.  before his final deployment ended, he was informed by his surgeon that upon his return from deployment he was to meet the surgeon to start his MEB.  He had two permanent profiles that prevented him from training or even conducting physical training with his unit.  

	c.  when he returned he went through a divorce because of his ex-wife's infidelity and three charges of child neglect.  He received custody of his three small children.  He could not come up with a family care plan in case of deployment so his chain of command filed the chapter 5 paperwork to get him out as fast as they could to open a slot to get a replacement.

	d.  he currently has a 90% service connected disability rating with the Department of Veterans Affairs (VA).

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Service medical records
* VA medical records 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 October 2003 and trained as an infantryman.  He remained on active duty through continuous reenlistments and he attained the rank of sergeant on 1 August 2006.  He served in Iraq from 16 August 2005 to 1 December 2006.

2.  He provides medical documentation which states he sustained a gunshot wound to his left femur in January 2007. 

3.  He provides a DA Form 3349 (Physical Profile), dated 28 August 2007, which shows he was issued a permanent (P2) profile for patellofemoral pain syndrome.  The profiling doctor did not refer his case to a Military Occupational Specialty Medical Retention Board (MMRB) or MEB.

4.  He served in Iraq from 24 September 2007 to 13 November 2008.

5.  He provides a DA Form 3349, dated 9 April 2010, which shows he was issued a permanent (P2) profile for left shoulder status post surgery.  The profiling doctor did not refer his case to an MMRB or MEB.

6.  He served in Afghanistan from 29 July 2010 to 10 February 2011.

7.  He provides a DD Form 2808 (Report of Medical Examination), dated 21 July 2011, which shows he was qualified for service with a physical profile of 111111, indicating that he had no physical limitations.

8.  On 13 September 2011, he was honorably discharged for parenthood because he was unable to procure a valid Family Care Plan. 

9.  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.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

11.  Army Regulation 635-40 states 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 physical disability incurred or aggravated in service.  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, rank, or rating.  

12.  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.  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.

13.  Army Regulation 40-501 (Standards of Medical fitness), chapter 7 (Physical Profiling) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification 
action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):

* P - physical capacity or stamina
* U - upper extremities
* L - lower extremities
* H - hearing and ears
* E – eyes
* S - psychiatric

14.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  A physical profile of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect which may require some activity limitations.  A profile containing one or more numerical designations of "3" signifies that the individual has one or more 


medical conditions or physical defects which may require significant limitations.  The individual should receive assignment commensurate with his or her physical capability for military duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and request for an MEB were carefully considered.  However, it appears he was found qualified for separation on 
21 July 2011 with a physical profile of 111111.  There is no available evidence to show he was ever given anything less restrictive than a permanent 2 profile.

2.  His contention the VA granted him a 90 percent disability rating was noted.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

3.  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, rank, or rating.  The available evidence shows the applicant was fully capable of performing his military duties.  Additionally, neither of his profile issuing doctors deemed it necessary to refer him to an MMRB or MEB.

4.  In view of the foregoing, there is no basis for granting the 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)                                         AR20130016931





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ABCMR Record of Proceedings (cont)                                         AR20130016931



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