BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20140009111 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and separation orders to show he was medically retired from active duty by reason of a permanent physical disability.

2.  The applicant states the medical evidence warranting a disability retirement was included in his medical records.  The military wanted to hold him for an additional 12 months so he requested separation.  His separation was not processed as a medical disability separation.  He filed a disability claim with the Department of Veterans Affairs (VA) at the time of his separation and was granted service-connected disability compensation above 30 percent (%).

3.  The applicant provides:

* DA Form 3349 (Physical Profile), dated 24 February 2011
* DD Form 2807-1 (Report of Medical History), dated 1 April 2011
* DD Form 2808 (Report of Medical Examination), dated 1 April 2011
* 14 Standard Forms (SF) 600 (Chronological Record of Medical Care), each dated 1 April 2011
* DD Form 2216E (Hearing Conservation Data), dated 1 April 2011
* DD Form 214, for the period ending 15 July 2011 
* VA rating decision, dated 16 July 2012
* Letter from the VA, dated 20 July 2012



CONSIDERATION OF EVIDENCE:

1.  On 2 May 1994, the applicant was appointed as a Reserve commissioned officer.  He entered active duty on 16 July 2007, served as a general surgeon in the Medical Corps, and was promoted to major (MAJ) on 2 October 2008.

2.  His record contains a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 19 February 2010.  The PEB considered his condition of scoliosis and determined his condition did not cause any functional impairment that would prevent him from satisfactorily performing his duty.  The PEB found him fit for duty in his current grade and specialty.  He concurred with the PEB's findings.  On 1 March 2010, the PEB findings were approved.

3.  On 8 June 2011, the U.S. Army Human Resources Command (HRC), Fort Knox, KY approved his request for an unqualified resignation, effective 15 July 2011.

4.  Orders Number 179-0007, issued by U.S. Army Garrison, Fort Belvoir, VA on 28 June 2011, directed his release from active duty effective 15 July 2011.

5.  His record contains a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 15 July 2011, which shows he chose to voluntarily separate from military service.

6.  On 15 July 2011, he was honorably released from active duty and transferred to the Individual Ready Reserve, not by reason of disability but for miscellaneous/general reasons.

7.  His record contains a DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 16 May 2010 to 15 May 2011 which shows he was under a physical profile during the rating period.  Despite his physical limitations, his rater checked the "Satisfactory Performance, Promote" block and his senior rater checked the "Best Qualified" and "Center of Mass" blocks.  Additionally, his senior rater stated he "exceeded all expectations when he returned to duty following major surgery…Promote ahead of peers."

8.  He provides the following:

	a.  A DA Form 3349 dated 24 February 2011 that shows he was issued a permanent "3" rating in the "U" (Upper Extremities) and "L" (Lower Extremities) categories of the PULHES Factor.  His condition was listed as (Status Post P Thoracic T2-Iliac Spinal Fusion with Deformity Correction, Date of Surgery:       23 December 2010; Kyphoscolosis).  His profile shows he required a Medical Evaluation Board (MEB) and that the MEB dictation was pending.

	b.  A DD Form 2807-1, DD Form 2808, and 14 Standard Forms, dated 1 April 2011 that show he received a separation physical on 1 April 2011 and was found to be medically unqualified for military service.  The physician stated he should be permitted to separate at his expiration term of service (ETS) or have a medical separation.  His DD Form 2808 shows that as of the date of this exam he was rated with a "3" rating in the "U" category of the PULHES Factor; however, the previous "3" rating he received in the "L" category was upgraded to a "1."

	c.  His VA rating decision dated 16 July 2012 and a letter from the VA dated 20 July 2012 show he was awarded a 40% disability rating for his condition of degenerative scoliosis.

9.  Title 10, U.S. Code (USC), 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, 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, and provide prompt disability processing while ensuring 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 an MEB, when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS Medical Retention Board, when they are command-referred for a fitness-for-duty medical examination, and or they are referred by HRC.

	c.  The PDES assessment process involves two distinct stages:  The MEB and the 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 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.

10.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Paragraph 3-3a provides that performance of duty despite impairment would be considered presumptive evidence of physical fitness.  Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

11.  Title 10, USC, 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, USC, 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.

12.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities incurred in or aggravated by active military service.  However, an award by the VA 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 that 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.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant suffered from a medical condition (scoliosis) that may have been medically unfitting.  He underwent a PEB in 2010 for that same condition, and was found fit for duty by that board.  His subsequent OER shows he was performing as anticipated within the scope of his daily duties.

2.  His scoliosis was noted again in his separation physical, and the examining physician determined his condition made him non-qualified for further service and rated him with a "3" rating in the "U" category of his PULHES Factor.  However, that DA Form 3349 was dated 3 months prior to his last OER that shows he could perform his duties.

3.  The applicant chose to submit his unqualified resignation and leave military service rather than to wait the necessary time for his case to process through the PDES.  His choice to voluntarily separate and forgo an MEB/PEB does not constitute an error on the part of the Army.

4.  Furthermore, 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 their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may only award ratings because of a medical condition related to service (service-connected) affecting an individual's civilian employability.

5.  Based on the foregoing, 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)                                         AR20140009111





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ABCMR Record of Proceedings (cont)                                         AR20140009111



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