IN THE CASE OF:	  

		BOARD DATE:	    20 January 2015

		DOCKET NUMBER:  AR20130022212 


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 honorable discharge from the U.S. Army Reserve be changed to a medical discharge.  

2.  He states:

* he was not able to attend a medical evaluation board (MEB) because of problems that were occurring in his life
* his military duties were causing his mental health to worsen and to affect him physically
* he was promised an MEB and a medical discharge, but they forgot or lost his files
* he was not attending an MEB, but he was getting help at the Department of Veterans Affairs (VA) hospital

3.  He provides numerous medical documents from the VA.  

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 enlisted in the Regular Army on 7 September 2001.  

3.  On 17 September 2003, he received a General Officer Memorandum of Reprimand for driving under the influence of alcohol on 8 August 2003.  He elected not to make or submit documents in his behalf.  

4.  He served in Iraq from 15 August 2003 – 19 September 2004.

5.  He was honorably released from active duty on 29 December 2004.  On the following day, he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his military service obligation.  

6.  His service record includes the following orders which show:

	a.  Orders C-12-528467, dated 14 December 2005, published by the U.S. Army Human Resources Command, St. Louis, MO, he was released from the USAR Control Group (Reinforcement) and he was reassigned to a Troop Program Unit (TPU) in Lincoln, NE, effective 13 December 2005.  

   b.  Orders 06-011-00031, dated 11 January 2006, published by Headquarters, 90th Regional Readiness Command, North Little Rock, AR, he was released from his current assignment and was reassigned to a TPU in North Little Rock, AR, effective 11 January 2006.

	c.  Orders 08-258-01053, dated 14 September 2008, published by Headquarters, 90th Regional Readiness Command, North Little Rock, AR, he was released from his current assignment and he was reassigned to a TPU in Lincoln, NE, effective 14 September 2008.

	d.  Orders 09-120-00022, dated 30 April 2009, published by Headquarters, 108th Training Command (Initial Entry Training, Charlotte, NC, he was honorably discharged from the USAR, on 11 May 2009.

7.  His service record is void of medical documentation which indicates he was diagnosed with any medical conditions while in an active status.  



8.  He provided numerous medical documents from the VA, printed in December 2013:

	a.  The documents titled "Problem Lists" show he consulted a health provider at the VA in Omaha, NE regarding several medical conditions.  Some of the medical conditions included cannabis dependence, alcohol dependence, tinnitus, insomnia, bipolar disorder, and headache.  

	b.  Radiology Reports show he underwent examinations of his cervical spine (2 or 3 views); thoracic spine (2 views); lumbar spine (2 or 3 views); chest 
(2 views); computer tomography (CT) posterior fossa [small space in the skull] without contrast; CT of head/brain without contrast; spine cervical (2 views (anteroposterior (AP)/lateral); mandible [lower jaw] panorex; and hand (3 or more views).

	c.  Lab Results show he had tests conducted to analyze his blood, urine, cholesterol, feces, skin, and the results are listed.

	d.  Immunizations show he received vaccine for influenza and tetanus and diphtheria.

	e.  Discharge Summaries his diagnoses were listed as alcohol dependence, cannabis dependence, post-traumatic stress disorder (PTSD), bipolar affective disorder, and tobacco use disorder at Axis I.  His final diagnoses were listed as bipolar disorder, Type l and chronic PTSD at Axis I.  

	f.  Consult Requests, he was granted service-connection for PTSD (50 percent (%)), irritable colon (30%), limitation on motion, ring or little finger (0%), migraine headaches (0%), and limitation of motion, thumb (0%) for a combined disability rating of 70 percent.  

9.  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 must be of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

10.  Title 38, U.S. Code, sections 1110 and 1131, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically 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.

11.  Army Regulation 635-40, paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty in the Regular Army from 7 September 2001 through 29 December 2004 and in the USAR from 30 December 2004 through 11 May 2009.  His service record is void of any medical documentation or other evidence that indicate any medical condition was incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  

2.  The applicant's contention that he was unable to undergo an MEB because of problems he was experiencing is acknowledged.  However, his personal problems are not sufficiently mitigating to warrant granting him a medical discharge.  

3.  The applicant contends his military duties caused his mental health to worsen and affected him physically.  However, his service record is void of evidence and he has not provided any evidence to support his claim.  

4.  The applicant's service record does not contain evidence to support his contention that he was promised an MEB and a medical discharge.  His service record is void of evidence which indicates he was recommended for referral to an MEB.

5.  The applicant's continued performance of assigned duties supports a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury related to his service that prevented him from performing his duties.  Since he was not in an approved MEB process, his honorable discharge from the USAR on 11 May 2009 was proper and correct.  
His service record is void of evidence which indicates he was unable to perform his military duties.  Therefore, there was no reason to recommend him for physical disability evaluation processing.  

6.  Absent evidence that he incurred any medical conditions while he was entitled to basic pay or were the proximate cause of performing active duty or inactive duty, he would not have been eligible for consideration by an MEB/Physical Evaluation Board (PEB) and thus not eligible for a medical discharge.

7.  Medical records provided by the VA indicate that the applicant has been awarded compensation for medical conditions which that agency has determined to be related to military service.  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.

8.  Therefore, there is no basis for granting the applicant’s request for a medical discharge. 

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)                                         AR20130022212



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ABCMR Record of Proceedings (cont)                                         AR20130022212



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