IN THE CASE OF:
BOARD DATE: 22 January 2015
DOCKET NUMBER: AR20140007555
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, in effect, processing through the Army Physical Disability Evaluation System (PDES).
2. He states he did not have a physical disability board. The Department of Veterans Affairs (VA) assigned him a 100 percent (%) service-connected disability rating within 1 year of his discharge.
3. He provides medical records, orders, a VA letter, an Air Force Review Boards Agency letter, and his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 September 2010.
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. With prior service in the Regular Army, Army National Guard (ARNG), and U.S. Air Force Reserve, on 2 September 1999, the applicant enlisted in the Alabama ARNG (ALARNG). On 1 October 1999, he entered active duty. He held military occupational specialty (MOS) 15V (Observation/Scout Helicopter Repairer). Effective 27 October 2009, he was promoted to sergeant first class/
E-7.
3. His Noncommissioned Officer (NCO) Evaluation Reports for the periods ending 31 October 2008 and 31 July 2009 show he was evaluated for his principal duty as an administrative NCO. In each evaluation, his rater and senior raters gave him the highest possible ratings in all categories.
4. On 17 August 2010, he was flagged for adverse action. On 9 September 2010, he was released from active duty with service characterized as general, under honorable conditions.
5. On 7 April 2011, he was discharged from the ALARNG with his service characterized as under other than honorable conditions. The National Guard Bureau Form 22 (Report of Separation and Record of Service) issued at that time shows the reason for his discharge was acts or patterns of misconduct under the Uniform Code of Military Justice, State Military Code, or similar laws. He completed 16 years, 7 months, and 6 days of total service for retired pay.
6. His Official Military Personnel File does not contain records documenting the complete facts and circumstances of his release from active duty on 9 September 2010 or his discharge from the ALARNG on 7 April 2011.
7. He provides:
a. A Physical Profile Serial Report, dated 6 September 2007, showing he was assigned a temporary "2" rating for physical profile serial rating factor "L" (lower extremities). The profile was to expire on 5 February 2008, and he was subject to duty restrictions.
b. A Functional Capacity Certificate, dated 13 September 2008, on which he indicated he had no physical limitations. He indicated he had been treated for anxiety within the past 5 years and that he was taking several medications. The examiner concurred with his self-assessment.
c. A Periodic Health Assessment, dated 13 September 2008, showing he reported back pain, gastroesophageal reflux disease (GERD), and anxiety. The examining medical professional gave him a "1" rating for all physical profile serial factors and noted that he was a healthy service member.
d. A DA Form 3349 (Physical Profile), dated 20 October 2008, showing he was assigned a permanent "3" rating for physical profile serial rating factor "L." The form shows the basis for the rating was lower back arthritis. The profiling medical officer did not indicate that he should be referred to the PDES.
e. Civilian medical records showing he was diagnosed with bulging discs in his back on 17 August 2010 and with hypertension on or about 31 December 2010.
f. VA medical records showing he has been seen by VA medical professionals for several conditions subsequent to his discharge from the ALARNG.
g. A VA letter, dated 21 September 2011, showing he was granted service-connected disability ratings for the following conditions effective 10 September 2010:
* major depressive disorder with anxiety and panic disorder without agoraphobia (70%)
* prostatitis (40%)
* cervical spine spondylosis (20%)
* lumbar spine disk bulge (20%)
* degenerative joint disease (DJD), with lateral epicondylitis, left elbow (10%)
* DJD, with lateral epicondylitis, right elbow (10%)
* osteoarthritis, left hip (10%)
* osteoarthritis, right hip (10%)
* osteoarthritis, left hip with limitation of rotation (10%)
* bilateral tinnitus (10%)
* GERD (esophagitis and hiatal hernia) (10%)
* right thumb fracture, status post-surgery, with scar (0%)
* DJD, first metatarsal phalangeal joing, right foot (0%)
* hearing loss, right ear (0%)
8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating. Separation or retirement by reason of disability requires processing through the PDES. The regulation 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.
9. Army Regulation 635-40, paragraph 3-4 states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. The commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation if:
a. a disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions; or
b. other circumstances warrant disability processing instead of alternate administrative separation.
10. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered 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 may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record does not support the applicant's request to be processed through the PDES.
2. The available records do not show evidence of any medical condition that significantly impaired the applicant's physical disability to reasonably perform his assigned duties. In fact, his NCO Evaluation Report for a period ending a little more than a year prior to his release from active duty in 2010 shows he excelled in his overall performance.
3. The evidence shows he received an under other than honorable conditions discharge from the ALARNG due to acts or patterns of misconduct under the Uniform Code of Military Justice, State Military Code, or similar laws. Once he had been recommended for an under other than honorable conditions discharge, he could not be referred to the PDES unless the general court-martial convening authority in his chain of command determined a disability was the cause of his misconduct or that other circumstances warranted disability processing instead of alternate administrative separation. In the absence of evidence showing otherwise, it must be presumed that there was no reason for suspending his discharge processing and referring him to the PDES.
4. In view of the foregoing, there is an insufficient basis upon which 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) AR20140007555
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ABCMR Record of Proceedings (cont) AR20140007555
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