IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140012415 


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, that her discharge from the Puerto Rico Army National Guard (PRARNG) be voided and that she be processed through the Physical Disability Evaluation System (PDES).

2.  The applicant states, in effect, that she was unjustly discharged from the PRARNG without notification or reason and without appearing before a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB). 

3.  The applicant provides a four-page letter explaining her application, a copy of her Department of Veterans Affairs (VA) Rating Decision, and an index sheet of additional documents submitted with her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the PRARNG on 7 February 2000.  She completed training as a Quartermaster and Chemical Equipment Repairer and was advanced to pay grade E-4 on 7 April 2003.  She remained in the PRARNG through continuous extensions. 

2.  The applicant was issued physical profiles on:

* 28 March 2006 (Temporary - 112111)
* 24 February 2007 (Permanent - 122111)
* 14 December 2008 (Permanent – 232111) MOS Medical Retention Board (MMRB) needed
* 16 October 2010 (Temporary 3 Permanent 12111)
* 3 March 2011 (Temporary - 311111)
* 7 June 2011 (Permanent – 332111)
* 7 December 2012 (Permanent – 332111)

3.  On 1 November 2011, a MAR2 (Military Occupational Specialty (MOS)) Administrative Retention Review) Board, formerly known as an MMRB, was convened to determine the applicant’s ability to perform the requirements of her MOS.  After reviewing the applicant’s permanent profile and other pertinent records, the MAR2 determined that her permanent medical condition did not preclude satisfactory performance of her MOS in a worldwide environment and directed that she be retained in her current MOS of 42A – Human Resources Specialist.  

4.  On 15 October 2012, the VA granted the applicant a 100% service-connected disability rating, effective 2 August 2011, due to her inability to work as a result of her service-connected disabilities.

5.  On 8 December 2012, the applicant’s commander submitted a request for a waiver for the applicant to extend her enlistment for a period of 1 year.  Her expiration of term of service (ETS) was 7 February 2013.  The request was approved and the applicant extended to 2 February 2014. 

6.  On 12 July 2013, the applicant submitted a memorandum to her battalion commander requesting that her profile be re-evaluated because she believed the profile over-stated her medical condition, that she could perform her duties and asserted that it was her desire to remain in and serve in the PRARNG until she reached retirement eligibility.

7.  On 3 February 2014, the applicant’s commander submitted a request for a waiver of the applicant’s overweight condition and a 6-month extension of her enlistment.

8.  On 7 February 2014, the applicant was honorably discharged from the PRARNG and as a Reserve of the Army under the provisions of National Guard Regulation 600-200, paragraph 6-35a, due to ETS.  She had served 14 years and 1 day of service and was issued a Reenlistment Eligibility Code of RE-1.

9.  On 12 March 2014, the PRARNG G-1 submitted a memorandum to The Adjutant General (TAG) of the PRARNG recommending disapproval of the applicant’s 6-month extension based on her failure to show improvement in the weight control program in the past 5 years.  The TAG approved the G-1 recommendation on 31 March 2014, thus denying the applicant a 6-month extension. 

10.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau which recommends disapproval of the applicant’s request based on the fact that the applicant was seen by two MAR2 (MMRBs) and it was determined that she should be retained and returned to duty.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that 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 service.  This regulation also provides that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  

12.  Army Regulation 635-40 also governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.  It states the medical treatment facility (MTF) commanders who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his/her office, grade, rank, or rating.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.

13.  Army Regulation 635-40 also states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit by qualified medical personnel because of another condition that is disqualifying.  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.

14.  National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26 j(1), in effect at the time, provides that commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination.  Commanders who do not recommend retention will request the Soldier’s discharge.

15.  Title 38, U.S. Code, sections 310 and 331, 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 medically unfitting 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.

16.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.  Accordingly, the type of discharge directed and the reason for her discharge were appropriate under the circumstances.

2.  The applicant failed to show through the evidence submitted and the evidence of record that she was diagnosed by competent military medical personnel as having a condition that was unfitting and warranted consideration under the PDES.  The mere presence of impairment does not, of itself, justify a finding of physical unfitness and/or medical retirement from the Army.  She was not medically separated at the time because there was no evidence that she had any medically unfitting conditions.  Accordingly, she was discharged on her ETS date.   

3.  The fact that the VA, in its discretion, has awarded the applicant a 100% disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army.  This appears to be especially true given she continued to serve after she received her VA Rating and subsequently submitted a memorandum to her battalion commander asserting that she could perform the duties of her MOS.

4.  Accordingly, it appears that she was properly discharged in accordance with the applicable laws and regulations with no indication of any violations of her rights and there appears to be no basis to reinstate her to the PRARNG given her contract has expired.  

5.  Therefore, in the absence of sufficient evidence to show the applicant had an unfitting condition that warranted consideration under the PDES, there appears to be no basis to grant her request.
  
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)                                         AR20140012415



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ABCMR Record of Proceedings (cont)                                         AR20140012415



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