BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140006785 


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 records to show she was medically retired by reason of disability vice honorably released from active duty on 23 December 2005. 

2.  The applicant states:

* when she returned home from Iraq in December 2005 she was honorably discharged despite her pending medical issues
* she was released to the New Jersey Army National Guard (NJARNG) at Fort Dix and she was told to follow up with the Department of Veterans Affairs (VA)
* she had two line of duty investigations at the time, one for a left foot injury while working at the wash rack in Kuwait and the other for a hand injury while in Iraq
* she followed up at the VA and in 2006 they discovered her left foot was OK; however, on 7 March 2007, she broke her right foot while on active duty
* she had major reconstructive surgery at the VA hospital and she was later awarded a 10-percent service-connected disability for this injury
* when she deployed to Iraq, her medical company had no room for mechanics; they reassigned her to a transportation unit
* when she began drilling with the transportation unit her commander told her not to come to drill until further notice since she was pending a medical discharge
* in April 2008, the NJARNG placed her on medical hold and on 6 May 2008, she was medically discharged from the ARNG
* she did not drill or do anything with the ARNG after her deployment until the NJARNG medically discharged her
* she served her country faithfully in two combat zones; since her return, she has been riddled with medical issues and fighting for what she earned
* she is a single mother and a disabled veteran, and she has been overwhelmed with family responsibilities

3.  The applicant provides a Table of Content consisting of Enclosures 1 through 9 and sub-enclosures 9a through 9x (attached). 

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 17 February 1998.  She entered active duty for training (ADT) on 9 September 1998 and completed required training for military occupational specialty (MOS) 95B (Military Police). 

3.  She was honorably released from active duty on 22 January 1999 to the control of her USAR unit.  She was voluntarily transferred to the USAR Control Group (Annual Training) on 16 July 2002.

4.  She enlisted in the NJARNG on 23 September 2002.  She also executed a   1-year extension on 26 July 2003.  She was assigned to Company B, 50th Support Battalion, Dover, NJ. 

5.  She was ordered to active duty on 26 June 2004 in support of Operation Iraqi Freedom.  However, she had been diagnosed with right shoulder pain myofascial syndrome (pain in the muscles and sheath of tissue) and she was determined not to be qualified for deployment.  She was release from active duty on 15 July 2004. 

6.  She was again ordered to active duty 9 August 2004 in support of Operation Iraqi Freedom. 

7.  On 7 October 2004, she was issued a temporary physical profile for right shoulder pain, myofascial syndrome.  Her profile assigned the temporary limitations of no lifting more than 25 pounds.

8.  She served in Iraq from 5 January 2005 to 4 December 2005.  She was assigned to Company E, 50th Main Support Battalion. 

9.  She underwent a retention physical on what appears to be 29 March of either 2004 or 2005.  The military doctor found her medically qualified for retention and assigned her a Physical Profile of "1-1-1-1-1-1-1." 

10.  On 20 July 2005, she executed a 6-year reenlistment in the NJARNG and on 8 December 2005, she was awarded primary MOS 63B (Light Vehicle Mechanic) effective 26 June 2004. 

11.  She was honorably released from active duty on 23 December 2005 in accordance with chapter 4 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of having completed her required active duty service.  Her DD Form 214 shows she completed 1 year, 4 months, and 15 days of active service. 

12.  On 2 April 2008, she was attached to the Holding Company, NJARNG, Fort Dix, NJ, until the expiration of her term of service or otherwise relieved. 

13.  The complete facts and circumstances of her discharge from the ARNG are not available for review with this case.  However, her service records contain:

	a.  Orders 128-069, issued by the NJARNG on 7 May 2008, honorably discharging her from the ARNG effective 6 May 2008 in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-35(l)(8) by reason of being medically unfit for retention. 

	b.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that shows she was discharged from the ARNG effective 6 May 2008 in accordance with NGR 600-200, paragraph 8-35(l)(8) by reason of being medically unfit for retention.  She completed 5 years, 7 months, and 14 days of ARNG service. 
14.  She provides multiple correspondence to/from the VA, dated on various dates from 2007 to 2012, in relation to her service-connected disability compensation, together with VA progress notes.  The VA awarded her service-connected disability compensation for/at the rate of: 

* Migraine and tension headaches, 30 percent, 24 December 2005
* Hallux limitus with bunion pain, claimed as left foot injury, 10 percent
* Painful scar associated with right ankle arthritis, formerly instability of right ankle also described as a right foot condition, 10 percent, effective 7 March 2007
* Right ankle arthritis, formerly instability of right ankle also described as right foot condition, 20 percent effective 24 December 2005, 100 percent effective 7 March 2007, and 10 percent effective 1 July 2007
* Left hand injury with stretching of the tendon, zero percent, effective 24 December 2005
* History of squamous cell carcinoma, zero percent, effective 17 January 2007

15.  She also provides: 

	a.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 March 2005.  It shows she injured her left thumb on 8 March 2005 while on active duty.  Her injury was determined to be in line of duty.  She received treatment for this injury. 

	b.  Multiple other medical documents that show she was seen for routine medical issues including a cold, cough, difficulty swallowing, abdominal pain, stomach cramps, and for medication refill. 

16.  Her records do not contain: 

* a permanent physical profile for the conditions she raises 
* a diagnosis of any medical conditions that failed retention standards or were found unfitting
* a diagnosis of a medical condition that warranted her entry into the disability system

17.  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 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.

	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, chapter 3, as evidenced in a medical evaluation board (MEB)
* 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 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.  Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	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.

18.  Army Regulation 635-40 establishes the Army 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.  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.  

	a.  Paragraph 3-1 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, rank, or rating.

	b.  Paragraph 3-2 states 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service.

	c.  Paragraph 3-4 states that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits:  (1)  the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training (IDT) and (2), the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

19.  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.

20.  Title 38, U.S. Code, sections 1110 and 1131, permits 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 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 VA does not have the 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.  These two government agencies operate under different policies.  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 in the NJARNG from 23 September 2002 to 6 May 2008.  During this period, she was mobilized and served on active duty from 9 August 2004 to 23 December 2005 and served in Iraq from 5 January 2005 to 4 December 2005.   

2.  Most if not all of the applicant's medical records during her active duty service are not available for review with this case.  However, she provides selected documents together with a VA rating decision that shows the only medical issues she encountered were related to routine medical issues including a cold, cough, difficulty swallowing, abdominal pain, stomach cramps, and a thumb injury.  In each case, she was treated and/or provided medications.  She argues that she should have been separated or retired by reason of disability.  Her arguments and contentions are rejected.  

	a.  A key element of the Army PDES is the Soldier's condition at the time of separation.  It is not intended to be a prediction of future medical ailments.  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.  Referral to an MEB is warranted if there is a medical diagnosis of a disabling condition.  

	b.  It is very clear that at the time the applicant was released from active duty on 23 December 2005 there is no evidence to show she had a permanent physical profile, a diagnosis of a disabling condition that rendered her unable to perform the duties required of her MOS or grade, a mental status evaluation that confirmed a behavioral health or any other mental health problem, or a medical examination that warranted her entry in the PDES.

	c.  Although she provides a DA Form 2173 for a thumb injury, this injury was never determined to have failed retention standards or found unfitting.  Referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  At the time of the applicant's release from active duty, he did not have an unfitting condition. Therefore, entry into the PDES was not warranted. 

3.  Following her release from active duty, the applicant continued to serve in the ARNG from January 2005 to May 2008.  Most of the applicant's medical records during this period of service are not available for review with this case.  However, her records contain a separation order and an NGB Form 22 that confirm she was discharged from the ARNG on 6 May 2008 by reason of being medically unfit for retention in the ARNG. 

4.  In the absence of the complete facts and circumstances surrounding her medical discharge from the ARNG and in the absence of evidence to the contrary, it must be presumed that she was properly discharged from the ARNG for the reasons indicated on her separation document.  It is not known what conditions the ARNG found to be medically unfitting.

5.  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and its 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 a medical condition is 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.

6.  The applicant makes an argument that is not supported with sufficient evidence.  There does not appear to be an error or an injustice in his case.  In view of the circumstances in this case, there is insufficient evidence to grant the 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)                                         AR20140006785





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ABCMR Record of Proceedings (cont)                                         AR20140006785



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