IN THE CASE OF: BOARD DATE: 8 December 2015 DOCKET NUMBER: AR20150004553 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, a medical discharge. 2. The applicant states he was called to active duty from the Individual Ready Reserve (IRR) in 2008. At the time he was rated 60 percent (%) disabled by the Department of Veterans Affairs (VA) for a service-connected disability he received in Iraq in 2003. Subsequently, he sent in all supporting documentation and he was discharged from the U.S. Army Reserve (USAR). He received an honorable discharge as opposed to a medical discharge. His records should be corrected to show he was unable to serve in the IRR due to his service-connected injury. His obligation to the IRR and his country was terminated due to the injury he received in Iraq serving his country. What caused the inaccurate discharge is above his pay grade. He was told he would receive a medical discharge when he was called to active duty in 2008 from the IRR. He has since learned this is not accurate. He just wants his records to reflect why he was discharged. 3. The applicant provides copies of the following: * DA Form 3349 (Physical Profile) * VA Rating Decision * two notarized letters of support * Magnetic resonance imaging (MRI) Examination of the Lumbar Spine memorandum * Application for an IRR Exemption from Involuntary Active Duty memorandum * Application for an IRR Exemption from Involuntary Active Duty statement * two letters from his doctors * two letters from the VA * Request for Exemption from Active Duty memorandum * letter from the Army Review Boards Agency (ARBA) 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 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 the cases 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. 2. The applicant's military records show he enlisted in the New York Army National Guard (NYARNG) on 30 October 2001. He held military occupational specialty (MOS) 31D (military police (MP)). 3. He entered active duty on 10 February 2003 in support of Operation Enduring Freedom. He served in Kuwait and Iraq from 20 April 2003 through 19 April 2004. He was released from active duty on 29 May 2004 and was transferred to a NYARNG unit. He was credited with completing 1 year, 3 months, and 20 days of net active service. 4. He provided copies of the following: a. A DA Form 3349, dated 30 November 2005, showing he was assigned a permanent profile of 2-1-1-1-1-1 for degenerative disc disease and mild disc bulging. The form commented he could have assignment limitations that were intended to protect against further physical damage/injury. He could have minor impairments under one or more PULHES factors that disqualified for certain MOS training or assignment. Item 4c (Profile Type) of the form stated, "If a permanent profile with a 3 or 4  PULHES, Does the Soldier Meet Retention Standards In Accordance With Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) was not checked to indicate he required a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB). b. A VA Rating Decision, dated 9 February 2007, showing he was awarded a 10% service-connected rating for post-traumatic stress disorder (PTSD). He was denied a service-connected rating for degenerative disc disease. c. Two notarized letters of support in which the individuals stated the following on: (1) 5 March 2007 – he was deployed to Iraq with the applicant and was assigned as the applicant's squad leader. During November 2003, a major flood occurred and destroyed most of their medical records. The applicant was his gunner for most of the missions and he was well aware of the problems the applicant had with his back. On numerous occasions he personally escorted the applicant to Baghdad for routine doctor visits. (2) 8 March 2007 – during their deployment to Iraq he was the noncommissioned officer in charge of the 442nd MP Camp's medic section. During November 2003, they suffered a major flood and lost their medical records. He did recall the applicant having medical problems with his back. The applicant was routinely seen by doctors on their base camp and neurologists at the 28th Combat Support Hospital in Baghdad. 5. He was released from the NYARNG with a general discharge on 1 June 2007 for unsatisfactory participation. He was transferred to the USAR Control Group (Annual Training) to complete a 2 year, 4 month, and 29 day statutory obligation. He was credited with completing 5 years, 7 months, and 2 days of net service this period. 6. The NYARNG issued the following orders on/: * Orders Number 263-1006, 20 September 2007, discharging him with a general discharge effective 1 June 2007 * Orders Number 276-1020, 3 October 2007, amending Orders Number 263-1006 changing his effective date to 4 August 2007 7. He also provided copies of the following: a. An MRI Examination of the Lumbar Spine memorandum, dated 23 April 2008, in which a medical doctor stated the applicant underwent an MRI which demonstrated bulging, discogenic disease, a central subligamentous central disc herniation, and a radial annular tear abutting the thecal sac without causing nerve root compression. b. An Application for an IRR Exemption from Involuntary Active Duty memorandum, dated 14 October 2008, in which the applicant requested an IRR exemption from active duty due to extreme personal hardship. He acknowledged he understood and consented to the following conditions if his request was granted: * A concurrent discharge from the ARNG and Reserve of the Army Status and transfer to the Retired Reserve if eligible * A discharge from the USAR * A transfer to the USAR Control Group (IRR) until such time as the reason for exemption no longer existed * A grant of a delay in lieu of exemption from entry on involuntary active duty c. An Application for an IRR Exemption from Involuntary Active Duty statement, dated 14 October 2008, in which the applicant stated he was requesting an exemption due to a medical condition. He originally injured his back while serving in Iraq in 2003. He was currently receiving VA disability for degenerative disc disease and PTSD. Over the past few years his condition had worsened. He was currently on disability from his civilian job due to his back condition. He was also currently appealing the VA rating and he had undergone an examination the past summer. He was regularly seen by a chiropractor and was prescribed 15 milligrams of Oxycodone for the pain and Xanax for the anxiety. Before leaving the ARNG he was placed on a permanent profile. Since the profile, his condition had worsened significantly. d. A letter, dated 14 October 2008, in which a chiropractor stated the applicant was under his care for his low back condition. The applicant had a herniated disc in his lower back, as well as discogenic disease throughout his lumbar spine. The applicant received treatment in his office 2-3 times per week to help manage the condition. Currently, the applicant was having a particularly bad time with his back. The applicant had been disabled from his civilian job due to the intense pain for the last few weeks. e. A letter, dated 15 October 2008, in which a medical doctor stated the applicant had been under his care for lumbar disc disease since February 2007. The applicant was currently on disability provided by MetLife Insurance. The applicant had severe radicular pain due to a herniated disc at L5-S1. The applicant was on Oxycodone and Xanax for pain and anxiety. Due to the applicant's current medical problems he was unable to lift greater than 10 pounds. His ambulatory capacity was severely limited. f. A letter, dated 21 December 2008, in which the VA advised him that their records showed he was assigned a combined 20% service-connected disability rating. g. A Request for Exemption from Active Duty memorandum, dated 30 January 2009, in which the Commander, U. S. Army Human Resources Command (HRC), advised the applicant of the approval of his request for an exemption. Based on the circumstances of his exemption request he would be discharged in accordance with Army Regulation 601-25 (Delay in Reporting for an Exemption from Active Duty, Initial Active Duty for Training, and Reserve Forces Duty), paragraph 4-11. He would receive an order revoking his call to active duty and the orders discharging him from the USAR. 8. Orders Number D-04-908060, issued by HRC on16 April 2009, honorably discharged him from the USAR effective 16 April 2009, under the provisions of Army Regulation 135-178 (ARNG and USAR Enlisted Administrative Separations). 9. He further provided copies of the following: a. A letter, dated 21 January 2013, in which the VA advised him that their records showed he was assigned a combined 60% service-connected disability rating. b. A letter, dated 12 February 2015, in which ARBA advised him that in order to consider his application he must provide a copy of his military medical records and any other records that support his stated issue. 10. On 16 May 2014, a staff member of the U.S. Army Physical Disability Agency (PDA) verified the applicant did not go through the disability process at PDA. 11. Army Regulation 135-178, in effect at the time, provided for the orderly administrative separation of ARNG and USAR enlisted Soldiers. The regulation provided for the involuntary separation from the USAR for a variety of reasons. Paragraph 6-7(e) specified that when a commander determined that a Soldier could have a medical condition that interfered with the Soldier’s performance of duty and contemplates initiation of separation, the commander would refer the Soldier for a medical evaluation. 12. Army Regulation 601-25, paragraph 4-11, in effect at the time, stated a member approved for exemption from entry on active duty must be removed from current status. A non-obligated member would be discharged unless the member was eligible and elected transfer to the Retired Reserve. Members requesting exemption must sign a request for discharge. 13. Army Regulation 40-501, chapter 7 (Physical Profiling), in effect at the time, provided the basic purpose of the physical profile serial system was to provide an index to the overall functional capacity of an individual and was used to assist the unit commander and personnel officer in their determination of what duty assignments the individual was capable of performing and if reclassification action was warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): * P - physical capacity or stamina * U - upper extremities * L - lower extremities * H - hearing and ears * E - eyes * S - psychiatric Numerical designator "1" under all factors indicated an individual was considered to possess a high level of medical fitness and, consequently, was medically fit for any military assignment. Numerical designator "2" under all factors indicated an individual had medical condition or physical defect which required certain restrictions in assignment within which the individual was physically capable of performing military duty. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, governed the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness was of such a degree that a Soldier was unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The regulation stated the mere presence of an impairment did not, of itself, justify a finding of unfitness because of physical disability. 15. Title 38, U.S. Code, sections 1110 and 1131, 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. DISCUSSION AND CONCLUSIONS: 1. The evidence shows the applicant, while serving as a member of the NYARNG, was assigned a permanent profile for degenerative disc disease upon his return from Kuwait and Iraq. His profile indicated he was medically fit for any military assignment and he had a medical condition or physical defect which required certain restrictions in assignment within which the individual was physically capable of performing military duty. He did not have any medically unfitting disability which required physical disability processing. 2. In February 2007, the VA denied him service-connection for degenerative disc disease. On 1 June 2007, he was discharged from the NYARNG for unsatisfactory participation and was transferred to the USAR to complete his statutory obligation of 2 years, 4 months, and 29 days. 3. On 14 October 2008, he requested an exemption from involuntary active duty due to his back condition. He acknowledged if his request was approved he could be discharged from the USAR. On 30 January 2009, he exemption request was approved and he was discharged accordingly on 16 April 2009. 4. There is no evidence of record and he did not provide sufficient evidence to show or suggest where the Army was in error regarding his USAR discharge. The documentation showing he received a combined 60% disability rating from the VA does not support he had any specific unfitting medical condition at the time of his 2009 discharge. 5. Absent evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout his 2009 separation process from the USAR. 6. The fact he was awarded a VA disability rating in itself is not sufficient evidence to conclude that he should have been medically discharged. The VA is not required by law to determine medical unfitness for further military service. The VA 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, the applicant's medical condition of degenerative disc disease, although not considered medically unfitting for military service at the time of processing for discharge, may be sufficient to qualify him for VA benefits based on an evaluation by that agency. 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) AR20150004553 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004553 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1