IN THE CASE OF: BOARD DATE: 30 November 2010 DOCKET NUMBER: AR20100026344 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 correction of his records to show he was determined to be unfit by the physical disability evaluation system (PDES) and retired by reason of physical disability. 2. The applicant states he incurred a hernia while on active duty which the Department of Veterans Affairs (VA) has determined to be service-connected. He adds he was administratively discharged by the Army National Guard (ARNG) as physically unfit due to a hernia and subsequent surgical repairs. He believes it would be proper to retire him vice discharge him. 3. The applicant provides: * his VA Rating Decision of 30 January 2008 * various orders to perform active duty * three DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods: * 20000831-20010504 * 20010830-20020429 * 20020810-20030515 * an NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service) for the period 20000225-20051115 * various documents related to his administrative discharge for failing to meet retention standards 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 Virginia Army National Guard (VAARNG) for 8 years on 25 February 2000. On 15 November 2005, he was honorably discharged from the National Guard and as a Reserve of the Army because he was declared medically unfit for retention. 3. The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows, in Section VII (Current and Previous Assignments) the following entries: * 20000225 Enlistment, Company D, 2nd Battalion, 224th Aviation * 20000831 Active Duty for Training (ADT) in Military Occupational Specialty (MOS) 67T (UH-60 Helicopter Repairer) * 20010504 Release from Active Duty (REFRAD) for Training * 20010830 Ordered to active duty service in Bosnia * 20020429 REFRAD * 20020810 Ordered to active duty at Fort Bragg, NC in support of Operation Iraqi Freedom (OIF) * 20030515 REFRAD * 20051115 Discharged 4. Upon the applicant's REFRAD on 15 May 2003, there was no indication of a medical problem. However, on 18 June 2003, the applicant underwent surgical repair of a small, 5mm defect, umbilical hernia. The repair was made at the DeWitt Army Community Hospital, Fort Belvoir, VA. The applicant was not on active duty. 5. The applicant was selected to attend Warrant Officer Candidate School (WOCS) and he was sent to Fort Rucker, AL. On 9 April 2004, while performing the sit-up portion of a diagnostic Army Physical Fitness Test (APFT), he felt a sharp pain near the site of his surgically repaired umbilical hernia. He was sent back to his VAARNG unit. He was placed on a temporary physical profile. 6. The applicant's records show he underwent a second surgical repair of his umbilical hernia in July 2005. In September 2005, he was reevaluated for a reoccurring hernia. A computed tomography (CT) scan was ordered to aid in diagnosing the applicant's condition; however, the results are not available for review. Ultimately, the VA State Medical Examiner, after reviewing all pertinent records, recommended the applicant be discharged. 7. On 6 September 2005, the applicant's commander notified him that he was being recommended for discharge under the provisions of National Guard Regulation (NGR) 600-200, paragraph 8-26j(1), as medically unfit for retention; however, separation action would be suspended for 45 days in order for the applicant to submit documentation supporting retention. On 12 September 2005, he was advised of his right to request a non-duty related Physical Evaluation Board (PEB). On 14 September 2005, he responded by acknowledging notification, waiving his right to counsel, waiving the 45-day suspension of separation action, and submitting a statement to the effect his hernia occurred on active duty. 8. The applicant submitted a 30 January 2008 VA Rating Decision. The VA utilized the applicant's service medical records in arriving at its rating decision. The VA granted service-connection effective from 31 August 2007 for "status post-umbilical hernia repair with scars" [emphasis added] for a pre-existing condition which was aggravated by military service. After thoroughly reviewing the applicant's service medical records, the VA stated, "There is no evidence to indicate that this condition occurred while you were on active duty." The applicant was granted a 10 percent (%) disability rating percentage. 9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 (MEBs), 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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. 10. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities. 11. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 12. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 13. Department of Defense Directive (DODD) 1332.18 (Separation or Retirement for Physical Disability) provides, in paragraph 3.5, "[A]ny member of the Ready Reserve who is pending separation for a non-duty related impairment or condition shall be afforded the opportunity to enter the PDES for a determination of fitness. If determined fit, the Secretary concerned may deem the member medically qualified for retention in the Ready Reserve in the specialty for which he or she was found fit. DISCUSSION AND CONCLUSIONS: 1. The applicant had three periods of active duty: * 20000831-20010504 ADT * 20010830-20020429 Service in Bosnia * 20020810-20030515 Fort Bragg (in support of OIF) 2. During his active duty service, there was no indication of any medical issue; however, on 18 June 2003, the applicant underwent surgical repair of a small (5mm defect) umbilical hernia. The applicant later suffered a service-connected aggravation of this condition and underwent two additional repairs. He was given temporary profiles and underwent medical evaluation by the VAARNG to determine fitness for retention. He was found unfit for retention and was subsequently discharged. 3. The VA reviewed the applicant's medical records and gave him a 10% disability for scars related to his hernia repairs of a pre-existing medical condition. The VA clearly established there was no evidence the hernia occurred while the applicant was on active duty. 4. The applicant was offered the opportunity to undergo a non-duty related PEB, but he declined on 14 September 2005, indicating he did not want to delay his separation. 5. The applicant's medical condition did not occur on active duty, but was aggravated by his service and recognized with a 10% VA disability rating. He is not qualified for a physical disability retirement from the active Army. 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) AR20100026344 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100026344 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1