IN THE CASE OF:    

		BOARD DATE:  11 December 2014	  

		DOCKET NUMBER:  AR20140007263 


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 his military records by showing he was discharged with an honorable characterization of service due to a physical disability.

2.  The applicant states the Department of Veterans Affairs (VA) granted him a service connected disability rated at 10 percent disabling.  All of the documentation was provided to his chain of command.  The error is an injustice.  He was not aware of the process.  He provided all of the medical records, orders and treatments to his superiors.  He was in a wheel chair the last time he was contacted by one of his sergeants.  He is working as a Child Protective Investigator Supervisor for the Department of Children and Families in Florida.  He was provided with the 2012 Davis Award for the State of Florida and promoted to Supervisor of investigation in the Miami Headquarters.  He was released from military duty due to his service connected disability but never received a certificate.  His release was involuntary.  His job, family and benefits depend on this certificate.  This is an urgent matter.  His work is to serve this country one way or another.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Rating Decision, dated 26 August 2010
* VA Claim Decision, dated 30 August 2010
* State of Florida Employment Application, undated
* VA letter Summarizing his benefits, dated 26 December 2013
* Form W-2 (Wage and Tax Statement) for 2013
* Premier Credit Report, dated 2 May 2014

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.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 8 years commencing on 15 January 2008.  This document did not obligate him to any period of active duty service.

3.  Effective 15 May 2008, the applicant was ordered to active duty training (ADT).  He was subsequently assigned to Fort Sam Houston, Texas for training as a preventive medicine specialist.

4.  On 13 November 2008, the applicant was released from ADT.  The authority for his release was "self-terminating orders."  He had completed 5 months and 
29 days of ADT.  His DD Form 214 indicates his characterization of service was uncharacterized.  The reason for separation was "Completion of period of ADT."

5.  Orders 08-246-00283, 81st Regional Readiness Command, dated 
2 September 2008, directed the applicant's reassignment to Headquarters and Headquarters Detachment, 724th Military Police Battalion located in Fort Lauderdale, Florida.

6.  A VA Rating Decision, dated 26 August 2010, announced that the VA had determined the residuals, inversion injury to his left ankle was service connected and granted him a 10 percent disability rating.  He was denied service connection for a ligament injury to his right ankle because there was no available evidence showing this injury had occurred during his military service.

7.  On 30 August 2010, the VA informed the applicant that he was granted service connected compensation effective 1 April 2010 for the inversion injury to his left ankle.

8.  Orders 10-349-00006, 81st Regional Support Command, dated 15 December 2010, announced the applicant's reduction in rank from private first class, pay grade E-3 to private, pay grade E-1, effective 15 December 2010.  The authority for this reduction was cited as Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-15, due to an approved discharge from the service under other than honorable conditions.  These orders also announced the applicant's administrative discharge from the USAR under the authority of Army Regulation 135-178 (Separation of Enlisted Personnel) with a characterization of Under Other Than Honorable Conditions (UOTHC), effective 
22 December 2010.

9.  The applicant's administrative discharge packet is not available for review.

10.  The applicant's service medical records are not available for review.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code (USC), Chapter 61, and Department of Defense Directive 1332.18.  It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

12.  Title 10, U.S. Code:

	a.  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.

	b.  Section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.

	c.  Section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.


13.  Title 38, USC, chapter 11, 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 physically unfit 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 contends, in effect, that his DD Form 214 should be changed to show he was separated from active duty due to physical disability.

2.  The evidence of record clearly shows that the applicant was separated from active duty as a result of completing his required ADT.  His separation was not due to a physical disability that made him unfit for further duty.

3.  Because the applicant's physical condition was not determined to be medically unfitting for retention at the time of his separation there was no basis for a medical retirement or disability separation from ADT.

4.  The available evidence further shows that the applicant was subsequently involuntarily discharged from the USAR due to cause, as evidenced by his reduction in rank and pay grade and his UOTHC characterization of service.

5.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated from active duty.

6.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service (service-connected), and affects the individual's civilian employability and/or social functioning.  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.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20140007263





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ABCMR Record of Proceedings (cont)                                         AR20140007263



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