IN THE CASE OF:	  

		BOARD DATE:	  18 June 2015

		DOCKET NUMBER:  AR20140018549 


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 that his discharge from the California Army National Guard (CAARNG) be voided and that he be retired by reason of permanent disability.

2.  The applicant states, in effect, that he was diagnosed with service connected post-traumatic stress disorder (PTSD).  He also suffered neck and back injuries prior to leaving active duty in September 2008.  He goes on to state that his chain of command did not offer him a fair chance for a medical evaluation board (MEB); he was released to M-Day status with the CAARNG.  He continues by stating that soon after deployment while still on active duty he sought treatment at the VA for PTSD.  Months later, he was discharged from the CAARNG in April 2009 and was transferred to the U.S. Army Reserve (USAR) Control (Individual Ready Reserve) and he never received any discharge papers. 

3.  The applicant provides copies of his military and VA Medical records, VA Rating Decision, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), deployment orders and Honorable Discharge Certificate.

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 and motor transport operator in the CAARNG when he was ordered to active duty in support of Operation Iraqi Freedom on 3 October 2004.  He deployed to Kuwait/Iraq during the period 22 December 2004 to 4 December 2005 and was honorably released from active duty (REFRAD) on 26 December 2005. 

3.  He was again ordered to active duty on 13 April 2007 in support of Operation Iraqi Freedom.  He deployed to Kuwait/Iraq during the period 26 June 2007 to 24 June 2008 and was REFRAD on 4 September 2008.  He was returned to his CAARNG unit.

4.  On 21 May 2009, the applicant was honorably discharged from the CAARNG and he was transferred to the USAR Control Group (Annual Training).  On 
29 May 2009, he was transferred to the USAR Control Group (Reinforcement).  He was honorably discharged from the USAR on 31 May 2011.

5.  On 26 June 2010, the Department of Veterans Affairs (VA) granted him a 70% service-connected disability rating for his service connected disabilities and he is being paid at the 100% rate due to being unemployable.  His disabilities consisted of PTSD (50%) and a neck condition (10%).

6.  His Noncommissioned Officer Evaluation Report for his last deployment shows he received a maximum report (all "Success" or higher ratings).  A review of the applicant's official records failed to show any evidence to suggest he was not deemed medically fit for separation or retention at the time of release from active duty in 2008 or at the time of his transfer to the USAR in May 2009.

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 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 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, discharge from the CAARNG and subsequent transfer to the USAR or that he should have been processed under the Physical Disability Evaluation System. 

3.  Therefore, it appears he was properly REFRAD, discharged from the CAARNG and subsequently transferred to the USAR 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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20140018549



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ABCMR Record of Proceedings (cont)                                         AR20140018549



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