BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140009614 


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) to show he was medically retired with a 40 percent (%) disability rating.

2.  The applicant states his DD Form 214 omitted presumptive Gulf War related illnesses and he was not awarded a medical disability rating.  When the Department of Veterans Affairs (VA) awarded him compensation for his Gulf War related disability on 1 July 2002, he was already on leave and retiring at that time.  He was treated for his Gulf War related presumptive diseases while still on active duty; however, he was never issued a physical profile or a disability rating. 

3.  The applicant provides a memorandum for record, dated 6 May 2014 and two VA rating decisions, dated 1 September 2003 and 3 April 2007.

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 enlisted in the Regular Army on 17 May 1976.  He held military occupational specialties (MOS) 92G (Food Service) and 11B (Infantryman), served through a series of reenlistments and assignments, and attained the rank/grade of master sergeant (MSG)/E-8.

3.  The last six DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) in his record span a period from March 1995 to January 2001. During the period covered by these six NCOERs – 

* he was promoted from sergeant first class (SFC) to MSG
* he served and was rated in MOS 92G as a Food Service Sergeant, Operations Training NCO, Title 11 Operations Training NCO, Senior Food Operations Management NCO, and Brigade Senior Food Operations Management Sergeant
* he passed the Army Physical Fitness Test (APFT) each year and met Army height and weight requirements
* he was not on a physical profile during these six rating periods
* he received only "excellence" or "success" ratings and was consistently ranked as among the best and fully capable by his raters 
* his senior raters consistently rated him as successful and superior

4.  His service medical records are not available for review with this case.  Additionally, there is no evidence in his available records that indicate he suffered from an injury, illness, or any medical condition that rendered him physically unfit or unable to perform the duties required by his grade or military specialty, or that would have warranted his entry into the Army's physical disability evaluation system (PDES).

5.  His DD Form 214 shows he was honorably retired by reason of sufficient service for retirement on 30 June 2002.  

6.  He submitted two VA Rating decisions, dated 1 September 2003 and 3 April 2007.  

	a.  In September 2003, the VA stated he was awarded a disability rating of 10% for hypertension and 10% for a generalized anxiety disorder with panic attacks.  The VA listed these conditions as "service connected, Gulf War incurred."  These ratings were effective on 1 July 2002.

	b.  On 3 April 2007, the VA awarded him a service connected disability rating on 10% for degenerative joint disease in the left shoulder and 10% for degenerative joint disease in the right shoulder, effective 1 July 2002.

7.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA's Schedule for Rating Disabilities (VASRD).

8.  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%. 

9.  Title 38, U.S. Code, sections 1110 and 1131, permit 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 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.  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.  There is no evidence the applicant was diagnosed with any medical condition, prior to his separation, which was severe enough to warrant his entry into the PDES.  In fact, his last 6 NCOERs, which covered a period from 1995 to 2001, show he was able to pass the APFT and was successfully performing his military duties.

2.  There is no evidence in the available records and he did not provide any evidence that shows he was diagnosed with a medical condition that rendered him physically unfit or unable to perform the duties required by his grade or military specialty. 

3.  When identified, diagnosed, evaluated, and rated, 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.

4.  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 award ratings because of a medical condition related to service (service-connected) affecting an individual's civilian employability.  Furthermore, the VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

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)                                         AR20140009614





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ABCMR Record of Proceedings (cont)                                         AR20140009614



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