BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130019583 


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, correction of his record to show he was determined to be unfit by the physical disability evaluation system (PDES) and retired by reason of physical disability.  He also requests to appear before the Board to have his honorable discharge changed to a medical retirement.    

2.  The applicant states:

   a.  He was told about his eligibility for a medical retirement too late to act.  After learning about a medical retirement, he asked his primary care provider why he did not recommend it.  He stated that he "just didn’t think about it."  However, his provider feels he meets the criteria.  

   b.  He would have had to extend another 6 months to go through the process; however, he received a job offer that he accepted and currently holds.  The offer would not have been available if he extended, so he was stuck in the situation at hand.  

   c.  He subsequently received a 90 percent (%) service-connected disability rating from the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD), a traumatic brain injury (TBI) with cognitive disabilities, post-concussive syndrome with migraines, sleep apnea, anxiety, and anger/irritability. 
   
   d.  He fights daily with these issues in order to conduct normal day-to-day operations as the supervisor for Range Safety at Fort Stewart, GA.  His disabilities affect his memory, ability to concentrate, and cause him to miss suspense's and forget simple tasks.  He is quick to anger, irritable, and has PTSD episodes which are not healthy for his family.  He frequently goes to treatment, some of which he must pay for out of his own pocket.
   
   e.  He believes that he would have been eligible for a medical retirement if his primary care provider had educated him on the requirements and the process.  

3.  The applicant provides a self-authored statement, copies of his service and post-service medical records, VA rating decisions, and miscellaneous correspondence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 July 1999.  He completed training and was awarded military occupational specialty 19K (M-1 Armor Crewman).  He served in Iraq for the periods 28 April 2003 to 14 August 2004 and 1 October 2006 to 20 December 2007.

2.  The applicant provides a DD Form 2808 (Report of Medical Examination).  Item 75b (Physical Profile) contains a Military Physical Profile Serial System rating of "111111," dated 9 February 2011.  In block 74a (Examinee/Applicant) the examining physician indicated the applicant was qualified for service.  The physician also recommended the applicant continue behavioral health treatment with medication for depression, anxiety, sleep, and TBI.  He further recommended the applicant continue treatment for sleep apnea and that he continue physical therapy for shoulder pain.

3.  His record contains a DA Form 2166-8 (Noncommissioned Officer Report (NCOER)) for the period 16 February 2010 through 15 February 2011, which shows he was rated as the Noncommissioned Officer in Charge of Armor Operations.  His rater rated his overall potential for promotion and/or service in positions of greater responsibility as "among the best."  His senior rater further commented the applicant had "unlimited potential" and he should be placed in positions of increased responsibility.

4.  On 1 July 2011, the applicant was honorably discharged upon the completion of his required active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 11 years, 11 months, and           17 days of creditable active service with no lost time.

5.  The evidence shows, effective 1 December 2012, the applicant was awarded a combined service-connected disability rating of 90% from the VA.

6.  The applicant provides a copy of his service and post-service medical records, VA rating decisions, and miscellaneous correspondence; however, there is insufficient evidence in the available service record which shows he sustained a disabling medical condition or he was issued a permanent physical profile while on active duty.  

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for Medical Evaluation Boards (MEBs) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  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 states the following:

	a.  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.  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.
	
	b.  Paragraph 3-2b(2) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraph 3-2b(2)(a) and 3-2b(2)(b) state that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.
	
	d.  Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the Physical Evaluation Board determines the Soldier is physically unfit for duty.  Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD).  The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty.  There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

8.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in the military service

9.  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 at less than 30 percent.
10.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  Unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

11.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  

2.  The applicant's request for correction of his record to show he was determined to be unfit by the PDES and retired by reason of physical disability has been carefully considered.

3.  The purpose of the PDES is to maintain an effective and fit military organization with the maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the Army and the Soldier are protected.

4.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system.  Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation process beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.

5.  There is insufficient evidence in the available records and the applicant did not provide sufficient evidence to show he was ever determined to have a medical condition which was of such severity that it would have warranted his entry into the PDES.  As part of his honorable discharge the evidence of record shows the examining physician indicated the applicant was qualified for service, and his physical profile revealed that he did not have any conditions which limited his ability to work in his primary military specialty or required geographic or assignment limitations.

6.  The applicant now believes he should have received a medical retirement for various medical conditions due to being granted a VA disability rating for his service-connected conditions.  However, an award of a rating by another agency, such as the VA, does not establish error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical fitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability.  

7.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of a physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform based on the Soldiers office, grade, rank, or rating.

8.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant appears to have been physically or medically fit at the time of his discharge from active duty in July 2011 as shown by his NCOER and separation physical completed in February 2011.  

9.  In view of the foregoing, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20130019583



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ABCMR Record of Proceedings (cont)                                         AR20130019583



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