BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140000558 


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 a medical retirement.

2.  He states he received a 90 percent (%) disability rating due to service connected injuries and should have been medically retired.  He explains that around 2006 he was sent to a medical review board at Fort Stewart, GA.  The board offered him medical retirement which he declined because he felt that he had more to give to his country.

3.  He provides:

* Extensive medical record documents
* Extensive Department of Veterans Affairs (VA) documents
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* DD Form 215 (Correction to DD Form 214)
* AF IMT 988 (Leave Request/Authorization)
* DA Forms 3349 (Physical Profile)
* NGB Form 22 (National Guard Bureau Report of Separation and Record of Service)
* Memorandum, Subject:  Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 3 March 2009

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.  After having prior service in the Regular Army, on 25 July 1994, the applicant enlisted in the Army National Guard (ARNG).   

3.  On 15 September 1998, he was ordered to active duty in an Active Guard Reserve (AGR) status.  His assigned unit was listed as Headquarters and Headquarters Company, 2nd Battalion, 124th Infantry, Orlando, FL.

4.  The applicant's medical records show he was continuously seen at medical facilities on numerous occasions for a list of problems to include:

* Hypertension
* Chronic major depression
* Anxiety disorder
* Ulnar neuropathy
* Alcohol dependency

5.  A DA Form 2807-1 (Report of Medical History) and a DA Form 2808 (Report of Medical Examination), showing a date of examination of 27 November 2006 and dated 8 January 2007, show he underwent a medical examination at MacDill Air Force Base for the purpose of a Medical Evaluation Board (MEB).  In the report of medical history, he indicated that he was receiving counseling for depression due to divorce.  The DA Form 2808 shows a Physical Profile Series (PULHES) of 111113 which the "3" indicates a limitation in "psychiatric." 

6.  His Chronological Record of Medical Care, dated 8 January 2007, stated that the applicant was pending an MEB for depression.

7.  A DA Form 3349 (Physical Profile), dated 30 March 2007, lists his PULHES as 111111 with the comment of "Major Depression, Single Episode, Resolved."  Additionally, the form stated that the applicant meets the retention requirements per Army Regulation 40-501 (Standards of Medical Fitness).  
 

8.  The applicant's official military personnel file (OMPF) contains a DA Form 1059 (Service School Academic Evaluation Report (AER)) for the period 25 June 2007 through 9 August 2007.  This AER shows he successfully attended and graduated from the Human Resources Specialist Class with a grade point average of 95.61%.  His OMPF also contains a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 March 2007 through 29 February 2008.  This report shows he was assessed as "Fully Capable" for overall potential for promotion and/or service in positions of greater responsibility by his rater.  The senior rater assessed his overall performance/ overall potential for promotion and/or service in positions of greater responsibility as "Successful - 3/Superior - 3," respectively.

9.  His record is void of any evidence that shows an MEB was convened, the condition(s) the board considered, and/or the board's recommendation.

10.  The applicant's DD Form 214 shows on 30 January 2009, he was released from active duty with separation pay in the amount of $56,109.00.  However, on
6 November 2009, his DD Form 214 was amended to delete his separation pay.

11.  On 3 March 2009, the applicant received his 20-year letter.

12.  On 1 July 2009, he was discharged from the ARNG and transferred to the Retired Reserve.  

13.  The applicant's VA file is void of his rating document and/or the conditions which were rated to substantiate his claim for a 90% disability rating from the VA.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 office, grade, rank, or rating.  Physical Evaluation Boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.


15.  Army Regulation 635-40 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 service.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that he should have been medically retired. 

2.  The evidence of record shows that in January 2007 he underwent a physical examination for a pending MEB for depression.  Although the applicant did not provide a copy of his MEB and a copy was not contained in his available file, by his own admission the MEB offered him a medical retirement which he declined because he felt that he had more to give to his country.

3.  The evidence of record further shows that in March 2007 his PULHES of 111113 was changed to 111111 with the comment of "Major Depression, Single Episode, Resolved" and he was subsequently determined to have met the retention requirements per Army Regulation 40-501.  Additionally, the evidence of record shows that in August 2007 he successfully attended and graduated from the Human Resources Specialist Class with a grade point average of 95.61%.  He also received an NCOER for the period 1 March 2007 through       29 February 2008 that accessed his overall performance as "Fully Capable." 

4.  Further, the facts that he was released from AGR status on 30 January 2009, discharged from the ARNG 1 July 2009, and transferred to the Retired Reserve over 2 years after the MEB, are indications that he believed himself to be physically fit to perform his duties at the time of separation.


5.  Additionally, the applicant has not shown or suggested where the Army was in error regarding his release from active duty and his subsequent transfer to the Retired Reserve.  Although he reports that he received a 90% disability rating from the VA, he has not alleged any specific condition that was unfitting at the time of his separation.

6.  Nevertheless, the fact that the applicant was awarded a 90% disability rating from the VA is not sufficient evidence to conclude that he should have been medically retired.  The VA is not required by law to determine medical unfitness for further military service.  The VA 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, the applicant's medical conditions, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

7.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

8.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment received in service.  Therefore, there is no basis for granting his 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)                                         AR20140000558





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ABCMR Record of Proceedings (cont)                                         AR20140000558



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