IN THE CASE OF:  	  

		BOARD DATE:  18 June 2015	  

		DOCKET NUMBER:  AR20140017366 


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 her records to show she was retired due to physical disability.

2.  The applicant states:

* she was discharged from the South Carolina Army National Guard due to medical unfitness, but should have been medically retired
* she was not assigned a disability percentage or informed if she would receive severance pay
* the medical board she underwent prior to her discharge was not conducted properly
* she believes there is paperwork missing from her records
* the State Surgeon never signed her medical board paperwork because she never saw him/her
* she was told by multiple individuals in various Army National Guard units that her medical board was not conducted correctly and the individuals convening it did not know what they were doing, but no corrective action would be taken
* she should have received a medical retirement as she was given a permanent medical physical profile and was subsequently discharged from the military due to being medically unfit
* she was not fully educated on the medical review board (MRB) process at the time, but she requested changes that were not made once she learned how it should have transpired
* she feels she was not treated fairly during the medical review process
* in 2011 she sent a request to the Army Board for Correction of Military Records (ABCMR) and received a response in 2012 directing her to contact her unit for correction
* she tried for 16 months to get this matter resolved with the South Carolina Army National Guard by writing to the Adjutant General, contacting the Judge Advocate General's Office, and filing a complaint with the Inspector General's Office

3.  The applicant provides:

* a letter from the State of South Carolina Office of the Adjutant General, dated 9 May 2014
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* MRB Transmittal, dated 20 March 2007
* Department of Veterans Affairs (VA) Rating Decision, dated 23 August 2007
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* military service and VA medical records in excess of 2,000 pages

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 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 June 1999.

3.  A review of the military medical records she provided shows they contain only two DA Forms 3349 (Physical Profile).  The first DA Form 3349 was a temporary physical profile issued on 21 March 2001, postpartum.  It expired 90 days later.  The second DA Form 3349 was likewise a temporary physical profile issued on 6 February 2004 for asthma.  It expired on 6 May 2004.  While a review of her medical records reveals she was seen at medical appointments throughout her career for various medical issues, including undergoing surgery to remove an ovarian cyst on 3 September 2003; continued subsequent obstetric-gynecological-related medical issues; neck, back, and knee pain; vision difficulties; and asthma, there is no documentation showing she ever received a permanent physical profile for any of those ailments.

4.  She deployed to Iraq in support of Operation Iraqi Freedom from 4 March 2004 to 4 March 2005.  Her Post-Deployment Worksheet, dated 8 March 2005, reflects no medical referrals, no medical prescriptions, and indicated the applicant was cleared for return to duty.  Her Post-Deployment Health Assessment, dated 8 March 2005, shows she claimed that during this deployment:

* her health stayed about the same or got better
* she had medical or dental problems that developed
* she was on a physical profile or light duty
* she did not seek or intend to seek counseling or care for her mental health
* she did not have concerns about possible exposures or events during this deployment that she felt might affect her health

5.  A Report of Medical Assessment also dated 8 March 2005 and signed by the same medical provider as the above two post-deployment medical documents shows the applicant:

* took prescription medication for asthma
* underwent surgery for an ovarian cyst prior to deployment and related symptoms of abdominal pain and spotting persisted after deployment
* claimed left and right knee pain for which she was not treated while deployed but should follow up for further medical evaluation
* claimed lower back pain due to use of flak vest on deployment for which she was not treated while deployed but should follow up for further medical evaluation

6.  Her available service medical records do not contain documentation indicating that while she was serving on active duty she:

* was issued a permanent physical profile
* suffered from a medical condition, physical or mental, that affected her ability to perform the duties required by her military occupational specialty (MOS) and/or grade or rendered her unfit for military service
* was diagnosed with a medical condition that warranted her entry into the Army Physical Disability Evaluation System (PDES)
* was diagnosed with a condition that failed retention standards and/or was unfitting

7.  On 10 July 2005, she was honorably released from active duty due to completion of her required active service.  She was credited with 6 years and 24 days of net active service.  On 11 July 2005, the applicant enlisted in the South Carolina Army National Guard.

8.  Records indicate she filed a disability claim with the VA on 27 January 2006, claiming numerous conditions.  On 16 March 2007 she underwent an MRB.  The MRB transmittal lists as her conditions, 60-percent VA disability for migraines, asthma, and chondromalacia (damage to the cartilage under the kneecap) for right knee.  The notations "asthma, PTSD – unable to perform duties" is also handwritten in the comments section of that form.  The MRB recommended her separation in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-27a (Asthma), 3-36 (Adjustment Disorders), and 3-41e(1) (Miscellaneous Conditions That Result in the Interference with Satisfactory Performance of Duty as Substantiated by the Individual's Commander or Supervisor).  The MRB recommendation was reviewed by the South Carolina Army National Guard Adjutant General on 20 March 2007 and he concurred.

9.  On 20 March 2007, the applicant was notified by the Office of the Adjutant General, South Carolina Army National Guard, that separation action from the Army National Guard was being initiated against her premised on the recommendation by the MRB conducted on 16 March 2007.  She was advised that action to separate her from the Army National Guard was being initiated under the provisions of Army Regulation 40-501, and National Guard Regulation 40-501 (Standards of Medical Fitness – Army National Guard), paragraphs 3-27a, 3-36, 3-41e(1), due to inability to perform her duties as a result of migraines, asthma, and chondromalacia for the right knee.

10.  She was advised of her right to consult with an appointed counsel, obtain copies of documents sent to the separation authority supporting the basis of the proposed separation, request a hearing before an administrative separation board, and present written statements on her behalf.  On 2 June 2007, she requested copies of documents, but waived her rights to an administrative separation board, consult with appointed counsel, and submit written statements in her behalf.

11.  On 3 June 2007, she was honorably discharged from the Army National Guard after 1 year, 10 months, and 23 days of service.

12.  A letter from the State Adjutant General, South Carolina Army National Guard, to the applicant, dated 9 May 2014, stated that her request to modify her reason for separation from the Army National Guard to read "medically retired" in lieu of "medically unfit for duty" could not be granted.  Her medical condition and length of service at the time of discharge did not meet the requirements for that designation.

13.  A VA Rating Decision, dated 23 August 2007, shows the applicant was granted service connection for reactive airway disease/asthma, migraine, post-traumatic stress disorder (claimed as nerves), right knee chondromalacia (claimed as right knee pain), and seborrheic dermatitis (claimed as rosacea) with a combined rating of 70 percent effective 11 July 2005.  She was not granted service connection or compensation for chest pain, bronchitis, feet, left knee, right hip pain, low back pain, and left wrist pain.

14.  Title 10, U.S. Code, 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, U.S. Army Human Resources Command (HRC), is responsible for administering the 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
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred into the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB)
* receive a permanent physical profile rating of 3 or 4 and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages:  the MEB and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or 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.  Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of 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.

15.  Army Regulation 635-40 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.  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.  Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits:

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

	b.  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

16.  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 Schedule for Rating Disabilities (VASRD).

	a.  Chapter 3 provides standards for medical retention.  It lists the conditions of asthma (if chronic resulting in permanent physical profile, repetitive hospitalizations, inability to run outdoors, prevents the Soldier from wearing a protective mask), adjustment disorder, and miscellaneous conditions that result in interference with satisfactory performance of duty as substantiated by the individual's commander as causes for referral to an MEB.  It states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB, with the following caveats:  Army National Guard Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 10 of this regulation.

	b.  Chapter 10 states Soldiers pending separation from the Army National Guard for failing to meet medical retention standards found not in the line of duty are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.

17.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

18.  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 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

19.  National Guard Regulation 600-200 (Enlisted Personnel Management), chapter 8, prescribes the policies and procedures for separation of enlisted personnel by appropriate State authorities.  Paragraph 8-26j(1) provides for the separation of enlisted personnel for medical unfitness for retention.  It 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 per Army Regulation 40-501 and National Guard Regulation 40-501.  Commanders who do not recommend retention will submit a request for the Soldier's discharge to the State Adjutant General.

20.  Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Separations), in effect at the time, established the policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.  Paragraph 12 provided guidance for separation of Soldiers who were medically unfit for retention.  It stated discharge would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness under the provisions of Army Regulation 40-501, unless the Soldier requested and was:

	a.  granted a waiver under Army Regulation 40-501, as applicable;

	b.  determined fit for duty under a non-duty related physical evaluation board fitness determination under the provisions of Army Regulation 635-40; or

	c.  eligible for transfer to the Retired Reserve under the provisions of Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers).

21.  Army Regulation 140-10, chapter 6 (Transfer to and from the Retired Reserve), states eligibility for transfer to the Retired Reserve is predicated upon:

* entitlement to receive retired pay from the U.S. Armed Forces because of prior military service
* completion of a total of 20 years of active or inactive service in the U.S. Armed Forces
* medical disqualification for active duty resulting from a service-connected disability
* appointment based on the condition the Soldier immediately apply for transfer to the Retired Reserve
* reaching the age of 37 and completed a minimum of 8 years of qualifying Federal service
* reaching the age of 37, completed a minimum of 8 years of qualifying Federal service and served at least 6 months of active duty in time of war or national emergency
* completion of 10 or more years of active Federal commissioned service
* being medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed

22.  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 VA does not have the 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.  These two government agencies operate under different policies.  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.  The applicant's request for correction of her records to show she was retired due to physical disability was carefully considered.

2.  She was properly honorably released from active duty due to completion of required active service.  Her available service medical records do not contain documentation indicating that while she was serving on active duty she was issued a permanent physical profile, suffered from a medical condition, physical or mental, that affected her ability to perform the duties required by her MOS and/or grade or rendered her unfit for military service, was diagnosed with a medical condition that warranted her entry into the Army PDES or was diagnosed with a condition that failed retention standards and/or was unfitting.

3.  While assigned to the South Carolina Army National Guard, an MRB determined she did not meet retention standards for three medical conditions.  Her records do not contain any documentation substantiating these conditions were incurred in the line of duty.

4.  She was subsequently properly separated under the provisions of National Guard Regulation 600-200, paragraph 8-26j(1), by reason of being medically unfit for retention.  Being credited with 8 years, 4 months, and 22 days of combined active duty and Reserve service, she was not eligible for transfer to the Retired Reserve.

5.  The fact that the VA granted her a service-connected disability rating for multiple medical conditions after her discharge from active duty does not prove an error on the part of the Army.  A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the ARNG.  The VA awards ratings because a medical condition is "service-connected" and affects the individual's civilian employability.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

6.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20140017366



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ABCMR Record of Proceedings (cont)                                         AR20140017366



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