IN THE CASE OF:	  

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150002458 


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 reconsideration of the Army Board for Correction of Military Records’ (ABCMR) denial of his request that his discharge be voided and that he instead be medically retired.    

2.  The applicant states, in effect:

a. The facts regarding the original ABCMR decision are inaccurate.  He was
on active duty from 2000 to 2003 and not in the U. S. Army Reserve during that time.

b. Essentially, he was not fit for duty due to his multiple conditions which
were rated by the Department of Veterans Affairs (VA).  If he was physically able to do his job, then he would have been able to return to active duty or stay in the USAR.  

c. He was told that his rejection from future service in both active duty and 
the USAR was because he was not able to attend any advanced individual training (AIT) schools to reclassify due to his medical profile.  

3.  The applicant provides:

* Documents from his medical records.
* Department of Veterans Affairs (VA) Rating Decision
* DD Forms 214 (Certificate of Release or Discharge from Active Duty).
* Orders
* DA Forms 4187 (Personnel Action)
* DA Form 4187-E
* DA Form 4651 (Request for Reserve Component Assignment or Attachment)
* DA Forms 3349 (Physical Profile)
* Individual Sick Slips
* Department of Defense (DOD) Prescription
* Patient Discharge Orders
* Certificate of Training
* Standard Form (SF) 507 (Clinical Record)
* DD Form 2697 (Report of medical Assessment
* SF’s  600 (Chronological Record of Medical Care)
* DA Forms 2173 (Statement of Medical Examination and Duty Status)
* VA Form 10-7978M (Medical Record Discharge Progress Note and Patient Instructions
* Letter from the VA dated 13 May 2011
* Letter from Kaiser Permanente dated 13 July 2011

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140004636, on 28 October 2014.  

2.  The applicant has provided new evidence and argument that warrants consideration by the Board.  

3.  On 29 August 2000, the applicant enlisted in the Regular Army.  After initial training, he was awarded military occupational specialty 13F (Fire Support Specialist).  

4.  On 28 August 2003, he was honorably released from active duty and transferred to the USAR.  He completed 3 years of net active duty service.  

5.  On 13 April 2009, he was ordered to active duty in support of Operation Iraqi Freedom and he was promoted to the pay grade of E-6 on 3 May 2009.  He deployed to Iraq during the period 29 June 2009 – 28 February 2010.

6.  On 21 March 2010, he was honorably released from active duty (REFRAD) due to completion of required active service and returned to his Reserve unit.

7.  A review of his official records shows that he received essentially maximum evaluations on his Noncommissioned Officer Evaluation Reports (NCOERs).  His last NCOER for the period ending 30 November 2010 shows that while he had a temporary profile and could not take the Army Physical Fitness Test, he completed all his duties to the “success” standard.

8.  The VA Rating Decision provided by the applicant shows that he applied to the VA on 15 April 2010, and on 13 December 2010 he was granted combined service-connected compensation of 80 percent effective 22 March 2010 for the following:

* Left shoulder strain – 10% 
* Right hip strain – 10% Left hip strain – 10%
* Left hip strain – 10% 
* Degenerative joint disease right knee strain – 10% 
* Instability right knee – 10% 
* Degenerative joint disease and left knee strain – 10%
* Instability left knee – 10%
* Right ankle sprain – 10%
* Left ankle sprain – 10%
* Tinnitus – 10%
* Asthma – 10%
* Residual scar to right finger – 10%
* Right index finger – 0%
* Bilateral pes planus, plantar fasciitis and Achilles tendonitis – 0%
* Hypertension – 0%

9.  A review of the medical documents provided by the applicant shows he had a temporary profile and a permanent profile.  However, on 14 October 2011, while attached to his unit, he received a DA Form 3349 (Physical Profile), which shows he had a permanent profile score of "2" for rating factors U (upper extremities) and L (lower extremities).  

10.  On 29 April 2012, he was transferred to the USAR Control Group (Reinforcement) due to deactivation of his unit.

11.  On 1 October 2013, he was honorably discharged due to the expiration of his term of service (ETS).

12.  Army Regulation 40-501, in effect at the time, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 7 (Physical Profiling) stated the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual.  It is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  

		(1)  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six PULHES factors. 

		(2)  Numerical designator "2" under "U” indicates that an individual has a slightly limited mobility of joints and muscular weakness, or other musculoskeletal defects which do not prevent hand to hand fighting and do not disqualify for prolonged effort.  

		(3)  Numerical designator "2" under "L” indicates that an individual has a slightly limited mobility of joints and muscular weakness, or other musculoskeletal defects which do not prevent marching, climbing, or running, digging or prolonged effort.

		(4)  Table 7-2, Profile Codes, provides the profile codes for block 2 of 
DA Form 3349.  It states, “Code B:  May have assignment limitations which are intended to protect against further physical damage/injury. Combat fit.  May have minor impairment under one or more PULHES factors which disqualify for certain MOS training or assignment.”  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be 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

14.  Army Regulation 635-40 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 (emphasis added).
15.  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.

16.  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 PEB 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 contention that his discharge should be voided and that he should instead be medically retired has been noted.  The applicant was discharged due to his ETS, and there is no evidence in the available records to show that he was unable to perform the duties of his MOS.

2.  The applicant has failed to show through the evidence of record and the evidence submitted with his application for reconsideration that he was ever not fit for retention/separation or that he should have been processed under the Physical Disability Evaluation System.

3.  There is no argument that the applicant had multiple health related issues while he was on active duty and in the USAR, and that he had received treatment for his conditions.  However, the new evidence the applicant provided does not show he was not medically qualified to perform his duties or that he failed to meet retention criteria because of these conditions.  Therefore, these conditions were not referred to the MEB.  A PEB may only determine fitness or unfitness of a member based on the conditions referred by a MEB.
4.  The fact that the VA, in its discretion, may have awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army. Disabilities which are diagnosed, occur, or which worsen after a Soldier is separated are treated by and compensated for by the VA.  Based on the applicant's diagnosis for various conditions it is appropriate for him to receive compensation and/or treatment from the VA.  However, this does not change the applicant's condition at the time of his discharge.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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 to amend the decision of the ABCMR set forth in Docket Number AR20140004636, dated 28 October 2014.



                                                            _________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)                                         AR20140004636



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ABCMR Record of Proceedings (cont)                                         AR20150002458



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