IN THE CASE OF:	  

		BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140004636 


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 that his discharge be voided and he instead be medically retired.  

2.  The applicant states, in effect, that he wanted to continue to serve his country but it became difficult because no unit wanted to accept him due to his injuries and because they could not send him to school for a new military occupational specialty (MOS).  Accordingly, he was transferred to the Individual Ready Reserve (IRR) where he remained until he was discharged due to his expiration of term of service (ETS).  His unit was being deactivated and did not provide him with assistance in sending him before a medical board despite the fact that his final profile was 322111. 

3.  The applicant provides copies of documents from his medical records and his Department of Veterans Affairs (VA) Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 8 August 2000 and training as a fire support specialist (13F).  He completed his training and was returned to his USAR unit.

2.  On 13 April 2009, he was ordered to active duty in support of Operation Iraqi Freedom and he was promoted to the pay grade of E-6 on 3 May 2009.  He deployed to Iraq during the period 20090629 – 20100228.

3.  On 21 March 2010, he was honorably released from active duty (REFRAD) due to completion of required active service.

4.  On 29 April 2012, he was transferred to the USAR Control Group (Reinforcement) due to deactivation of his unit.

5.  On 1 October 2013, he was honorably discharged due to the expiration of his ETS.

6.  A review of the medical documents provided by the applicant shows that the applicant had a temporary profile.  There is no evidence in the available records which shows that he had a permanent profile.  

7.  A review of his official records shows that he received essentially maximum evaluations on his Noncommissioned Officer Evaluation Reports (NCOERs).  His last NCOER for the period ending 30 November 2010 shows that while he had a temporary profile and could not take the Army Physical Fitness Test he completed all his duties to the “success” standard.

8.  The VA Rating Decision provided by the applicant shows that he applied to the VA on 15 April 2010, and on 13 December 2010 he was granted combined service-connected compensation of 80 percent effective 22 March 2010 for the following:

* Left shoulder strain – 10% 
* Right hip strain – 10% Left hip strain – 10%
* Left hip strain – 10% 
* Degenerative joint disease right knee strain – 10% 
* Instability right knee – 10% 
* Degenerative joint disease and left knee strain – 10%
* Instability left knee – 10%
* Right ankle sprain – 10%
* Left ankle sprain – 10%
* Tinnitus – 10%
* Asthma – 10%
* Residual scar to right finger – 10%
* Right index finger – 0%
* Bilateral pes planus, plantar fasciitis and Achilles tendonitis – 0%
* Hypertension – 0%

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that 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.  This regulation also provides, in pertinent part, that 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. 

10.  Title 38, U.S. Code, sections 310 and 331, 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.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be voided and that he should instead be medically retired has been noted.  The applicant was discharged due to his ETS, and there is no evidence in the available records to show that he was unable to perform the duties of his MOS.

2.  The applicant has failed to show through the evidence of record and the evidence submitted with his application that he was ever not fit for retention/separation or that he should have been processed under the Physical Disability Evaluation System. 
3.  The fact that the VA, in its discretion, may have awarded the applicant a  disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army. 

4.  In view of the foregoing, there is an insufficient 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:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   _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)                                         AR20140004636





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ABCMR Record of Proceedings (cont)                                         AR20140004636



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