IN THE CASE OF:	  

		BOARD DATE:	  4 August 2015

		DOCKET NUMBER:  AR20140019001 


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 referral into the Army's Integrated Disability Evaluation System (IDES) to determine if he should have been medically retired or in the alternative to receive the separation pay that he was authorized.

2.  The applicant states he received a separation physical that revealed multiple health issues for which he should have been medically retired.  His medical conditions included herniated disc disease, a torn rotator cuff, shoulder spurs, irritable bowel syndrome, chondromalacia in his knees, and post-traumatic stress disorder (PTSD).  On 1 February 2012, the Department of Veterans Affairs (VA) awarded him an 80 percent service connected disability rating of which he received a 50 percent disability rating for PTSD.  Later, the VA garnished his disability financial award.

3.  He was discharged for not having a family care plan.  The separation pay that he should have received was used to recoup a portion of his Selective Reenlistment Bonus (SRB).  He contends that his 12 years and 6 months of honorable service entitles him to receive severance pay.

4.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Final Pay Worksheet
* self-authored statement
* numerous medical records and magnetic resonance imaging (MRI) results

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.  Having prior service in the U.S. Air Force, he enlisted in the Regular Army (RA) on 30 January 2002 and served through multiple extensions and reenlistments.

3.  On 19 November 2009, as part of his reenlistment he completed a DA Form 4789 (Statement of Entitlement to SRB) agreeing to reenlist in military occupational specialty (MOS) 18C (Special Forces Engineer Sergeant) for a period of 15 years and 10 months.  He acknowledged with his signature that he had been advised and understood that if he failed to complete the full period of service, he would have to pay back as much of the bonus as he had already received for the unexpired part to the period of obligated service.

4.  He was discharged on 1 February 2012 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-8, parenthood.  His DD Form 214 shows in item 18 (Remarks):

* he was paid a $32,000.00 SRB on 25 November 2009
* he served 3 tours in Iraq from 9 January to 10 August 2003; from 15 March to 18 October 2007; and, from 9 May to 21 August 2008
* he was entitled to separation pay in the amount of $31,148.82

5.  He provided:

	a.  A self-authored statement wherein he contends, in effect, that his chain of command at the 10th Special Forces Group (SFG) failed to support him during his divorce and custody battle.  Specifically, they would not take him off orders to go to Germany or allow him to work in a staff position.  He had to spend $100,000 in legal fees to gain equal custody of his children, and then his command chaptered him out of the Army without giving him the separation pay he earned for his years of service.  Further, the VA plans to take part of his disability award ($32,000.00) despite his repeated attempts to stop their action.  He knows what right looks like and this is not it.  

	b.  A Final Pay Worksheet, which shows he was entitled to separation pay totaling $31,148.82; however, deductions which included the recoupment of his SRB and taxes, totaled $30,834.  The remaining balance paid to the applicant upon his discharge was $575.63.

	c.  Numerous service medical records which show he was evaluated and  treated for several medical conditions which included neck and back pain, a herniated disc, gastroenteritis, and knee pain.  Included in these records is a DA Form 5181-R (Screening Note of Acute Medical Care), dated 9 December 2002, which shows the applicant had complained of neck and back pain for 7 years as the result of a neck trauma but in the last 5 days the pain acted up during a heavy ruck march.

6.  The Chronological Record of Medical Care, dated 5 December 2011, he provided shows:

	a.  his right shoulder MRI found a probable posterior labral tear, tiny undersurface acromial spur and tendinopathy of the supraspinatous tendon at its insertion point;

	b.  his c-spine MRI found mild to moderate disc pathology at C5-C6 and 6-7;

	c.  his l-spine MRI found mild degeneration of disc at L4-L5 and what was likely acute Schmorl's node formation with adjacent marrow edema; and 

	d.  he was released without limitations.

7.  The service medical records provided by the applicant do not show a diagnosis of PTSD and he did not provide his VA rating determination.

8.   The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, the applicant provided a copy of his DD Form 2808 (Report of Medical Examination) that shows he was found qualified for service or separation and that he had no disqualifying medical conditions.  His medical profile shows he received a "2" functional capacity rating for three areas:  his overall physical capacity or stamina, upper extremities, and lower extremities.  His hearing, eye sight, and psychiatric were rated "1" for maximum medical fitness.  The examining medical doctor did recommend referral to orthopedics for an evaluation of the applicant’s neck, both shoulders, lumbar spine, and knees. 

9.  Army Regulation 635-200, paragraph 5-8 provided for the involuntary separation of enlisted Soldiers due to parenthood.  Soldiers were considered for involuntary separation when parental obligations interred with the fulfillment of military responsibilities.  Specific reasons for separation due to parenthood included inability to perform prescribed duties satisfactorily, repeated absenteeism, late for work, inability to participate in field training exercises or perform special duties such as charge of quarters and staff duty noncommissioned officer, and unavailability for worldwide assignment or deployment according to the needs of the Army.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  It provides for medical evaluation boards which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness).  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to a medical evaluation board.

11.  Title 10, U.S. Code, Chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of a disability incurred while entitled to basic pay.  Sections 310 and 331, permits the Department of Veterans Affairs (VA) to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

12.  Army Regulation 601-280 (Army Retention Program), paragraph 5-13, prescribes the policy and procedures related to bonus recoupment.  It states a Soldier who voluntarily or because of misconduct fails to complete obligated service for which an SRB was paid will refund a percent of the bonus equal to the percent of obligated service not performed.  The servicing Finance and Accounting Office will perform recoupment of the portion of the bonus before the Soldier’s discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested, in effect, assessment by the IDES for potential medical retirement and in the alternate restoration and payment of his separation pay.

2.  Although the available record does not show the applicant was diagnosed with PTSD, it does show that he suffered neck trauma prior to his entry into the RA and that condition appears to have been aggravated on active duty.  He also was treated for numerous other medical conditions; however, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  There is insufficient evidence to show he suffered from any medically unfitting condition which rendered him unfit to perform his duties prior to his discharge, which in turn would have required him to be processed for separation through the Army IDES.  The medical documents he provided shows he was qualified for retention or separation with no disqualifying medical conditions identified during his separation physical. 

3.  A disability decision rendered by another agency does not establish error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical fitness for a Soldier’s continued service or separation from active duty.  The VA may award ratings because of a service-connected disability that affects the individual's civilian employability and life skills.

4.  In view of the foregoing evidence, there is insufficient evidence to show the applicant should have been evaluated within the Army’s IDES for a fitness determination based on his documented medical conditions and subsequent physical profile.  As he does not meet the criteria for entry into the IDES, there is insufficient evidence to support a medical separation or retirement.

5.  In regard to his entitlement to separation pay, the record (Final Pay Worksheet) clearly shows that the applicant was credited with his allotted separation pay; however, it was offset by the debt he incurred when he failed to meet the terms of his SRB.  His honorable service is not in question; however, his inability to complete his term of service as outlined in his SRB contract made him subject to recoupment of his SRB at the time of his separation.  As such, there is insufficient evidence to support the applicant’s request to grant him relief and subsequent payment of his separation pay.

6.  Concerning the garnishment of his VA disability financial entitlements, it is not within the jurisdiction of this Board to render decisions governing VA records.  The applicant is encouraged to pursue relief through the appropriate VA ombudsman. 

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)                                         AR20140019001





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ABCMR Record of Proceedings (cont)                                         AR20140019001



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