IN THE CASE OF: BOARD DATE: 9 June 2015 DOCKET NUMBER: AR20140015764 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, in effect, that his general discharge from the Missouri Army National Guard (MOARNG) on 10 October 2013 be upgraded to an honorable discharge by reason of permanent disability. 2. The applicant states that he fell off a tactical vehicle while performing a task and should have been honorably discharged by reason of permanent disability. 3. The applicant provides copies of his separation documents National Guard Bureau (NGB) Form 22, three sworn statements, a rights warning statement, his Department of Veterans Affairs (VA) Claim forms, a request for a conditional waiver, orders releasing him from active duty, and a partial copy of his Traumatic Serviceman’s Group Life Insurance (TSGLI) application. CONSIDERATION OF EVIDENCE: 1. The applicant’s records, though somewhat incomplete, show that he enlisted in the MOARNG on 10 January 2008. 2. On 4 June 2011, he fell backwards off a tactical vehicle and landed on his buttocks. On 15 September 2011, orders were published by Camp Shelby Joint Forces Training Center releasing him from active duty and declaring him non-deployable due to medical reasons. 3. The facts and circumstances surrounding his administrative discharge are not present in the available records; however, his records do contain a NGB Form 22 shows that on 10 October 2013 he was discharged under honorable conditions under the provisions of National Guard Regulation 635-200, paragraph 6-35d(5), due to fraudulent enlistment or reenlistment. 4. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit by qualified medical personnel because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 5. 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. 6. 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. In the absence of evidence to the contrary, it must be presumed that the applicant's discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights. Accordingly, the type of discharge directed and the reason for his discharge were appropriate under the circumstances. 2. The applicant failed to show through the evidence submitted and the evidence of record that he was diagnosed by competent military medical personnel as having a condition that was unfitting and warranted consideration under the Physical Disability Evaluation System. The mere presence of impairment does not, of itself, justify a finding of physical unfitness and/or medical retirement from the Army. It must be presumed that he was not medically separated at the time because there was no evidence that he had any medically unfitting conditions. Accordingly, he was discharged from the MOARNG and the USAR. 3. 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. 4. Accordingly, it must be presumed that he was properly discharged in accordance with the applicable laws and regulations with no indication of any violations of his rights. 5. Therefore, in the absence of sufficient evidence to show the applicant had an unfitting condition that warranted consideration under the PDES, 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: 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) AR20140015764 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140015764 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1