IN THE CASE OF:  

		BOARD DATE:    9 January 2014

		DOCKET NUMBER:  AR20130021692 


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 amendment of his honorable discharge to "medical discharge/retirement."  In effect, he requests correction of his records to show he was medically discharged or retired by reason of disability.

2.  The applicant states he was deployed to and injured in Iraq in 2011.  He returned from Iraq in July 2011 to have surgery and physical and traumatic brain injury (TBI) therapy.  He took transition leave on 28 November 2011 and he separated on 4 February 2012.  He received his separation physical prior to his surgery and treatment and somehow he was able to clear medical and reverse Soldier Readiness Processing (SRP), although his Post-Deployment Health Reassessment (PDHRA) and records addressed his medical issues.  Upon separation, the Department of Veterans Affairs (VA) diagnosed him with and awarded him service-connected disability compensation for cervical spine (10 percent), TBI (10 percent), left shoulder degenerative joint disease (20 percent), and post-traumatic stress disorder (PTSD) (50 percent).  He believes the Army did not manage his medical or separation process properly.  He was not extended on active duty to complete treatment or for consideration by a medical board.  He does not understand how the Army said he was medically fit and alright at the time of separation but immediately after separation the VA awarded him a combined disability rating of 70 percent.  He believes the 70-percent rating made him a candidate for medical retirement.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* VA Rating Decision, medical records, progress notes, and other related correspondence
* DA Form 137-1 (Unit Clearance Record)
* DA Form 137-2 (Installation Clearance Record)
* DA Form 31 (Request and Authority for Leave)
* DD Form 2796 (Post Deployment Health Assessment (PDHA))
* DD Form 2900 (PDHRA)
* DD Form 689 (Individual Sick Slip)
* Standard Form 600 (Chronological Record of Medical Care)
* DA Form 3349 (Physical Profile)
* Military Acute Concussion Evaluation

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 18 September 2008 for a period of 3 years and 20 weeks.  He held military occupational specialty 19D (Cavalry Scout).

2.  He served in Iraq from 26 August 2010 to 19 July 2011.  He was promoted to sergeant/E-5 on 1 February 2011.

3.  He out-processed his Fort Hood unit in November 2011 and he signed out on 69 days of transition leave beginning on 28 November 2011.

4.  He was honorably released from active duty on 4 February 2012 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service.  He completed 3 years, 4 months, and 17 days of active service.

5.  He received a change-of-rater noncommissioned officer evaluation report (NCOER) covering the rating period 1 February 2011 through 5 December 2011 for his duties as a squad leader, Troop A, 1st Squadron, 3rd Armored Cavalry Regiment, Fort Hood, TX.  This NCOER shows:

* his rater rated his performance as "Excellence (Exceeds Standard)" or "Success (Meets Standard)" – specifically, his competence (duty proficiency) was rated as "Excellence"
* he passed the Army Physical Fitness Test and met the height and weight standards
* his rater rated his overall potential as "Among the Best"
* his senior rater rated his overall performance as "Superior" and his overall potential for promotion and/or service in positions of greater responsibility as "Superior"
* he electronically signed the report on 5 December 2011

6.  His service medical records are not available for review with this case.  However, he provides the following documents consisting of selected service medical records as well as VA-related records:

	a.  A Standard Form 600, dated 22 October 2010, shows he was a gunner in a military vehicle that rolled over into water and submerged for 1 to 2 minutes.  Upon extraction, he was noted by medical personnel to have pain in his left shoulder, right forearm, and neck.  Subsequent examination showed good shoulder alignment and resolved numbness; absence of forearm fracture or compartment syndrome; and absence of chest, abdomen, pelvic, or back pain.  He was released to duty without limitations.

	b.  A Military Acute Concussive Evaluation, dated 22 October 2010, shows he was a gunner in a military vehicle that started sliding toward a canal when the dirt gave way and the vehicle rolled over.  He was strapped in and stuck in the water for about 10 seconds when his team members pulled him out.  His left shoulder was dislocated.

	c.  A DD Form 689, dated 22 October 2010, shows he sustained a left shoulder dislocation.  He was seen by the medics and told to follow up.

	d.  A DA Form 3349, dated 23 October 2010, with an expiration date of 23 November 2010 (temporary) shows he suffered a left shoulder dislocation.  The profile restricted the wear of body armor, push-ups or pull-ups, overhead lifting, and lifting greater than 10 pounds.

	e.  A radiology report and other medical documents and chronological records of medical care, dated between April 2010 and August 2011, relating to his shoulder surgery show he underwent a successful left shoulder arthrogram due to recurrent left shoulder instability since he dislocated his shoulder in 2007 (prior to entry on active duty).  He was previously diagnosed with interval reduction of the previously-identified anterior shoulder dislocation.

	f.  A DD Form 2796, dated 10 June 2011, shows he completed a PDHA and indicated his overall health was fair and that no physical health problems (illness or injury) or emotional problems (depression, anxiety) made it difficult for him to do his work or other daily activities.

	g.  A DD Form 2900, dated 8 November 2011, shows he completed a PDHRA and indicated his overall health was excellent.  He indicated that some physical health problems (illness or injury) but not emotional problems (depression or anxiety) made it extremely difficult for him to do his work or other daily activities.  There was a potential TBI based on his responses.  The attending doctor indicated the applicant received a TBI screen in theater and he completed his evaluation upon return to Fort Hood, TX.  There was minor concern for PTSD symptoms but none were diagnosed.

	h.  VA rating decisions, dated 2 March 2012 and 24 May 2013, show he was awarded service-connected disability compensation for the following conditions and rates:

* cervical spine strain, 10 percent, 2 February 2012
* TBI with residuals, 10 percent, 5 February 2005
* left shoulder degenerative joint disease, 0 percent (later changed to 20 percent), 5 February 2012
* PTSD, 50 percent, 5 February 2012

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (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 or her office, grade, rank, or rating.

	a.  The PDES assessment process involves two distinct evaluations:  the medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while individuals who retire based on disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	b.  Paragraph 3-2b (Processing for Separation or Retirement from Active Duty) states disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duties 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.  The presumption of fitness may be overcome if the evidence establishes that:

		(1)  the Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of a disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions; and/or

		(2)  an acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.

8.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, disabilities are rated using the VA Schedule of Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.  The VASRD is used by the Army and the VA as part of the process for adjudicating disability claims.

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 of less than 30 percent.

10.  Title 38, U.S. Code, sections 1110 and 1131, permit 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his honorable discharge should be changed to medical discharge/retirement.  It appears that the applicant confuses the character of service with the narrative reason for separation.

	a.  The character of service is a description of service and is determined by directives authorizing separation.  It can be honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, and/or uncharacterized.  The character of service cannot be medical.

	b.  The narrative reason for separation on the other hand is the reason a Soldier separates form the Army and is based on the statutory, regulatory, or other authority.  For example, the narrative reason for a Soldier who commits a serious offense is "misconduct" while the narrative reason for a Soldier who retires after completion of 20 or more active years of service is "retirement."  Likewise, the narrative reason for Soldiers who are separated or retired due to physical disability is "disability" which can be permanent, temporary, existed prior to service, etc…

2.  The applicant served on active duty from 18 September 2008 to 4 February 2012.  He does not state what specific physical or behavioral health condition made him medically unfit for military service; however, he appears to believe that since the VA awarded him service-connected disability compensation for various conditions, the Army should have done the same.

	a.  First, nothing in the records he provided indicates he suffered from a condition that demonstrated he was unable to reasonably perform the duties required of his grade and military specialty, rendered him medically unfit, and/or warranted his entry into the PDES.  A comprehensive review of his records together with the evidence he provided does not support a finding of unfitness.

	b.  Second, his records are void of a permanent physical profile.  He provided a temporary physical profile that restricted his activities for 1 month due to a shoulder injury.  Most importantly, however, even a permanent physical profile does not translate to automatic consideration by an MEB.  The key element in the disability system is the presence of a medical condition that renders a Soldier unable to reasonably perform the duties required of his or her grade and military specialty.  The applicant did not provide evidence that he was unable to perform the duties required of his grade and military specialty.

	c.  Third, disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The applicant's service was not interrupted by a physical condition or medical necessity.  It was interrupted by his decision to separate at the conclusion of his contractual obligation of 3 years and 20 weeks.

	d.  Fourth, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duties 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.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions or an acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.  His NCOER, which rated his performance and potential, clearly shows he was rated "Excellence," "Among the Best," and "Superior."

	e.  Fifth, he appears to confuse military fitness with service-connected disability compensation.  In effect, he believes that since the VA awarded him service-connected disability for a cervical spine strain, left shoulder degenerative disc disease, and PTSD, the Army should have done the same.  There are two important concepts that require clarification.

		(1)  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and an award of a rating by another agency do not establish error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness 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.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

		(2)  If and when identified, diagnosed, evaluated, and rated, 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.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA may rate all service-connected conditions.

		(3)  In the applicant's case, there was not a single condition actively limiting his ability to perform his military duties.  There was no diagnosis of any conditions that failed retention standards or were disabling at the time of his separation.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  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.

3.  There does not appear to be an error or an injustice in his case.  He has submitted insufficiently substantiating evidence or an argument that would show an error or injustice occurred in his case.  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 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)                                         AR20130021692



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ABCMR Record of Proceedings (cont)                                         AR20130021692



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