IN THE CASE OF:
BOARD DATE: 25 June 2015
DOCKET NUMBER: AR20140018114
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 transfer to the Retired Reserve be voided and that he instead be retired by reason of permanent disability.
2. The applicant states that he has been diagnosed with post-traumatic stress disorder (PTSD), sleep apnea, two bulging discs in his neck, and pinguecula in both eyes. He is currently in the process of retiring from his civilian employment due to injuries acquired while in the military.
3. The applicant provides copies of his Department of Veterans Affairs (VA) Rating Decision, DD Forms 214 (Certificate of Release or Discharge from Active Duty), his last Noncommissioned Officer Evaluation Report, records related to his application for Combat-Related Special Compensation, and VA and service medical records.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving the U.S. Army Reserve (USAR) in the rank of staff sergeant when he was ordered to active duty in support of Operation Enduring Freedom on 23 September 2009. He continued to serve until he was honorably released from active duty (REFRAD), on 4 May 2011, due to completion of required service and he was returned to his USAR unit.
2. On 23 February 2012, the applicant was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).
3. On 30 September 2012, the applicant was transferred to the Retired Reserve.
4. The applicant's last evaluation report ended on 31 December 2011 and reflects all "Success" or higher ratings.
5. The VA Rating Decision provided by the applicant with his application shows that on 22 July 2013 the VA gave the applicant a service-connected disability rating of 70% for PTSD effective 7 August 2012 and 50% for sleep apnea effective 24 July 2012.
6. A review of the applicant's official records failed to show any evidence to suggest that the applicant was not deemed medically fit for separation or retention at the time of release from active duty in 2011 or his transfer to the Retired Reserve in September 2012.
7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. This regulation also provides, in pertinent part, 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.
8. 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.
9. There is a difference between the VA and the Army disability systems. The Armys determination of a Soldiers physical fitness or unfitness is a factual finding based upon the individuals 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 VAs ratings are based upon an individuals 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 applicants contentions and supporting documents have been carefully considered and appear to lack merit.
2. The applicant has failed to show through the evidence of record and the evidence submitted with his application that he was not fit for retention/separation at the time of REFRAD and subsequent transfer to the Retired Reserve or that he should have been processed under the Physical Disability Evaluation System.
3. Therefore, it appears that he was properly REFRAD and subsequently transferred to the Retired Reserve based on his request at the time and absent evidence to the contrary, 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) AR20140018114
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140018114
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