IN THE CASE OF:	  

		BOARD DATE:	  27 August 2014

		DOCKET NUMBER:  AR20140000765 


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 review of a medical review board for DOD service-connection due to her disabilities which were incurred in service. 

2.  The applicant states a medical review board should have taken place during her discharge processing.  The medical conditions that affected her health should have been completely evaluated and processed while she was still on active duty.  The Department of Veterans Affairs (VA) has granted her an overall service-connected disability rating at 60 percent which is sufficient enough to have warranted a medical discharge. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2807-1 (Report of Medical History)
* DD Form 2697 (Report of Medical Assessment)
* DD Form 2808 (Report of Medical Examination)
* Multiple Standard Forms 600 (Chronological Record of Medical Care)
* Radiology Report
* Various clinical records, doctors notes, and hospital discharge instructions
* Dental records
* Post-service VA progress notes




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's records show she enlisted in the U.S. Army Reserve (USAR) on 25 April 2002.  She was discharged from the USAR on 12 August 2002 for the purpose of enlisting in the Regular Army (RA).  

3.  She enlisted in the RA on 13 August 2002 and she held military occupational specialty (MOS) 63W (Wheel Vehicle Repairer).  She appears to have served in Korea from around March 2003 to around December 2003. 

4.  She was assigned to Alpha Forward Support Company, 204th Forward Support Battalion, Fort Hood, TX, around June 2004.

5.  On 10 August 2004, her immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 5 of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) by reason of parenthood.  She had failed to provide a family care plan (FCP).  He recommended an honorable discharge. 

6.  On 12 August 2004, she acknowledged notification of the proposed separation action and consulted with legal counsel.  She was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the procedures and rights that were available to her.  She also submitted a statement in her own behalf wherein she requested to be granted an honorable discharge. 

7.  Subsequent to this action, her immediate commander initiated separation action against her for failing to provide an FCP.  Her battalion commander recommended approval of the discharge action. 

8.  On 30 August 2004, the separation authority approved her discharge under the provisions of Army Regulation 635-200, paragraph 5-8 and directed the applicant be furnished an Honorable Discharge Certificate.  

9.  She was honorably discharged from active duty under the provisions of Army Regulation 635-200, paragraph 5-8, on 20 November 2004, by reason of parenthood.  She completed 2 years, 3 months, and 8 days of active service. 

10.  None of her service medical records are available for review with this case.  However, she provides the documents below consisting of selected service medical records as well as VA-related records:

	a.  DD Form 2807-1, dated 13 May 2004.  This form shows she underwent a separation physical at Fort Hood, TX.  She answered in the positive to several questions related to coughing, asthma, sinusitis, fever, frequent colds; foot trouble, painful joints, knee trouble; dental issues; chronic cough; ear, nose, or throat; vision; hearing; back pain; numbness; knee trouble; dizziness, severe headaches; prolonged bleeding; loss of memory, depression, and other maladies.  

	b.  DD Form 2807-1, dated 4 June 2004.  She indicated that her health was the same when compared to her last medical assessment/physical examination.  She had had the flu, gave birth to a child, and she was currently taking medications (Loestria and Zyrtec).   The military physician indicated her medical condition was reliable at present and she had been seen at woman's health clinic.  She had had a Loop Electrosurgical Excision Procedure (LEEP) (a procedure to remove any abnormal tissue in the cervix to prevent cancer). 

	c.  DD Form 2808, dated 4 May 2004.  This form shows she was examined for the purpose of separation.  She was assigned a PULHES of "1-1-1-1-1-1" and appears to have been found to be "qualified for service."  The military doctor noted she had had the defect or diagnosis of cervical dysplasia (changes to the cell on the surface of the cervix).  He also wrote the entry "patient needs follow-up for cervical dysplasia with probably an …. LEEP procedure; patient has already seen [illegible] in early June.  She is seeing woman's health [clinic] for this." 

	d.  Dental records and multiple chronological records of medical care regarding her LEEP surgery, follow-up instructions, medications, and other related documents.  

	e.  Post-service VA progress notes. 

11.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the physical disability evaluation system (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages: 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/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 or not 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 are permanently retired, depending on the severity of the disability and length of military service.
 
	d.  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 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.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

12.  Army Regulation 635-40 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 office, grade, rank, or rating.  It states 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.  

13.  Army Regulation 40-501 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, the PEB rates all disabilities using the VA Schedule of Rating Disabilities (VASRD).  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 

14.  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.

15.  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 served on active duty from 13 August 2002 to 20 November 2004.  She does not state what specific physical or behavioral health condition made her medically unfit for military service; however, she appears to believe that since the VA awarded her service-connected disability compensation for various conditions, the Army should have done the same. 

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

	b.  Second, her record is void of a permanent physical profile.  More importantly, however, even if there was one, a permanent physical profile does not translate to an 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/her grade and military specialty.  The applicant did not provide evidence that she was unable to perform the duties required of her grade and military specialty.  

	c.  Third, 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.  The available evidence shows the applicant's service was not interrupted by a physical condition or medical necessity.  It was interrupted by her failure to provide an FCP and rendered her unavailable for worldwide deployment. 

	d.  Fourth, when a Soldier is being processed for separation or retirement 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, 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/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.  There is none in her case.

	e.  Fifth, she appears to confuse military fitness with service-connected disability compensation.  In effect, she believes since the VA awarded her service-connected disability for certain disabilities, 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 (except under the recently-introduced integrated disability evaluation system).  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 their 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) and 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 (emphasis added) 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 could potentially rate all service-connected conditions.

		(3)  In the applicant's case, there was not a single condition actively limiting her ability to perform her military duties.  There was no diagnosis of any conditions that failed retention standards or were disabling at the time of her 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.

2.  There does not appear to be an error or an injustice in his case.  She has submitted insufficiently substantiating evidence or an argument that would show an error or injustice occurred in her case.  In view of the foregoing, there is 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 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)                                         AR20140000765



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000765



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1