IN THE CASE OF:	  

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140012842 


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 his discharge be voided and he be retired by reason of permanent disability. 

2.  The applicant states, in effect, that he was unjustly discharged from the Massachusetts Army National Guard (MAARNG) on 1 March 1999 instead of being retired by reason of permanent disability.  He goes on to state the MAARNG denied his disability retirement because they said they did not have sufficient information despite the fact that it was submitted.  He also states that he has been awarded a 30% service-connected disability rating by the Department of Veterans Affairs (VA) which is the standard used by the Army for disability retirement.

3.  The applicant provides a three-page statement explaining his application, two letters from the MAARNG, the request from his commander requesting his disability retirement, VA Rating Decision, results of his Medical Duty Review Board (MDRB), physical profile, and a copy of his Retired Identification Card.

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 was serving as a sergeant in the MAARNG on 26 March 1997, when an MDRB completed a review of the applicant’s records and issued the applicant a permanent profile of 121111.

3.  On 1 March 1999, he was discharged from the MDARNG and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

4.  On 31 March 1999, the applicant’s MAARNG commander submitted a request to the MAARNG’s Adjutant General requesting that the applicant be discharged and placed on the permanent or temporary disability retired list.  VA documents were also provided showing the applicant had been granted a 30% service-connected disability rating. 

5.  On 14 December 1999, a memorandum was dispatched to the applicant’s MAARNG commander indicating that it was a second request for additional medical information pertaining to the applicant’s claimed conditions.  The memorandum explained that there was insufficient information to continue and gave the applicant a suspense date of 14 February 2000.

6.  On 7 March 2014, the Assistant Chief of Staff of the MAARNG responded to an inquiry from the applicant’s Congressional Representative to the effect that there was no evidence to show the applicant had any line of duty injuries or illnesses warranting a disability retirement. 

7.  The VA Rating Decision provided by the applicant is undated and reflects that he was granted service connection for Residuals, Avulsion Fracture, left (minor) ring finger (10% disabling), Lumbosacral Strain (10% disabling), Ethmoid Sinusitis with Rhinitis (10% disabling) for a combined total of 30%.

8.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It 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.
9.  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.

10.  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 Physical Evaluation Board 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 his discharge were appropriate under the circumstances.

2.  The applicant failed to show through the evidence submitted and the evidence of record that he was diagnosed by competent military medical personnel, as having a condition that was unfitting and warranted consideration under the Physical Disability Evaluation System.  The mere presence of impairment does not, of itself, justify a finding of physical unfitness and/or medical retirement from the Army.  He was not medically separated at the time because there was no evidence that he had any medically unfitting conditions.  Accordingly, he was transferred to the USAR.  



3.  The fact that the VA, in its discretion, has awarded the applicant a 30%% 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.

4.  Accordingly, he was properly discharged in accordance with the applicable laws and regulations with no indication of any violations of his rights.

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 his 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)                                         AR20140012842



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ABCMR Record of Proceedings (cont)                                         AR20140012842



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