BOARD DATE: 9 September 2014
DOCKET NUMBER: AR20140000381
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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically discharged.
2. The applicant states:
* she received medical compensation due to active duty injuries
* she needs her DD Form 214 corrected to be eligible for Post-9/11 GI Bill benefits
3. The applicant provides:
* DD Form 214
* Department of Veterans Affairs (VA) documentation
* medical 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 enlisted in the Regular Army on 15 November 2006 for a period of 4 years and 22 weeks. She completed her training and was awarded military occupational specialty 42A (human resources specialist).
3. She provided service medical records, dated January to April 2007, which show she was treated for:
* hip stress fractures
* joint pain, localized in the hip and stress fracture (right inferior pubic ramus)
* joint pain in the ankle
* left ankle pain
* joint pain, localized in the knee
* upper respiratory infection, acute
4. On 26 April 2007, she was issued a temporary profile for pregnancy.
5. She underwent a separation physical examination on 31 May 2007 and was found qualified for service.
6. On 27 June 2007, she voluntarily requested separation for pregnancy under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 8. On 17 July 2007, the separation authority approved her request.
7. On 1 August 2007, she was honorably released from active duty by reason of pregnancy or childbirth.
8. She provided a letter from the VA, dated 21 January 2013, which shows she is receiving 50-percent service-connected disability.
9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, or rank. It states that 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 the service. When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.
10. 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 or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.
11. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends she should have been medically discharged.
2. She contends she received medical compensation due to active duty injuries. The VA granted her an overall/combined disability rating of 50 percent; however, a VA disability rating does not establish entitlement to medical retirement or separation from the Army. Operating under different laws and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings based on medical conditions related to service (service connected) that affect a veteran's individual civilian employability. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.
3. There is no evidence of record, and she did not provide any evidence, which shows she suffered a medical condition that rendered her unable to perform her duties. She was separated for pregnancy. There is insufficient evidence to show she was eligible for physical disability processing and there is no basis 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 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) AR20140000381
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ABCMR Record of Proceedings (cont) AR20140000381
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