IN THE CASE OF:	  

		BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20150001219 


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 he be granted a medical evaluation board (MEB) hearing and be retired by reason of permanent disability.

2.  The applicant states that he was discharged from the North Dakota Army National Guard (NDARNG) and as a Reserve of the Army for being medically unfit to meet retention standards and he feels that he was not given adequate counseling at the time of separation to make the proper determination of choosing the MEB process.

3.  The applicant provides copies of his NGB Form 22 (Report of Separation and Record of Service), discharge orders and medical treatment records.

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 enlisted in the NDARNG on 20 April 2001.  He completed his training as a combat engineer and was advanced to the pay grade of E-4 on       3 October 2002.  He deployed to Iraq/Kuwait during the period 20051112 – 20061105.

3.  On 31 October 2009, the applicant was issued a temporary profile for lumbago.

4.  On 20 February 2010, the applicant’s commander notified the applicant by memorandum that a review of his medical records revealed that he no longer met the standards for retention based on his current medical condition of lower back problems.  The memorandum advised him that he must elect discharge, transfer to the Retired Reserve (if eligible), or a duty related Medical Evaluation Board (MEB).

5.  On 20 March 2010, the applicant elected discharge from the NDARNG and the U.S. Army Reserve (USAR).

6.  Accordingly, he was honorably discharged on 20 March 2010 from the NDARNG and as a Reserve of the Army under the provisions of National Guard Regulation 600-200, paragraph 6-35(8) due to being medically unfit for retention.  He had served 8 years, 11 months and 1 day of service.

7.  On 5 October 2010, the applicant was granted a combined 40% disability rating for post-traumatic stress disorder (PTSD), lumbosacral disc disease, and mild traumatic brain injury (TBI).  His disability rating was subsequently increased to 70% in December 2013.   

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibility, and procedures that apply in determining whether a Soldier is unfit because of physical disability to perform the duties of his office, grade, rank, or rating.  The medical treatment facility commander with the primary care responsibility evaluates those referred to him or her and, if it appears as though the Soldier is not medically qualified to perform duty or fails to meet retention criteria, refers the Soldier to a medical evaluation board (MEB).  Those Soldiers who do not meet medical retention standards are referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

9.  Title 38, U.S. Code, sections 310 and 331, permit 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 on the individual's ability to perform the duties of his or her grade, rank, or rating (emphasis added).  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 PEB hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on changes in the disability.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been carefully considered and appear to lack merit.

2.  The evidence of record clearly shows that the applicant was advised of his options regarding his unfitting condition and one of the options was to request evaluation by a duty-related MEB.  However, the applicant elected discharge.

3.  The applicant has not provided evidence to show that he was not properly advised of his options or an explanation as to why he believes he was not properly counseled regarding his options.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20150001219





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ABCMR Record of Proceedings (cont)                                         AR20150001219



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