ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20180014327 APPLICANT REQUESTS: his honorable discharge (HD) due to “completion of Required Service” be changed to a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision * Orders * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states on 6 June 2016, he was medically retired from the Army National Guard (ARNG) due to injuries obtained during his deployment from 2010 to 2011. He just applied for VA GI Bill and they will not grant his benefit increase unless his DD Form 214 shows he was medically discharged for injuries obtained during his deployment. 3. On 20 May 2010, the applicant was ordered to active duty in support of Operation Enduring Freedom. He was released from active duty on 5 June 2011, due to “Completion of Required Active Service”, under the provision of Army Regulation 635- 200 (Active Duty Enlisted Administrative Regulation), chapter 4. He served in Egypt from 12 July 2010 through 2 May 2011. 4. The available record is void of evidence showing he had a condition requiring referral to the medical evaluation board (MEB) during his tour on active duty. 5. On 18 March 2016, an informal PEB found the applicant, a drilling member of the ARNG, physically unfit and recommended a rating of 100 percent and that he be placed on the temporary disability retirement list (TDRL) with reexamination during November 2016. 6. On 31 May 2016, orders number 152-1011 assigned the applicant to the Retired Reserve, effective 6 June 2016. 7. On 28 June 2018, an informal PEB found the applicant physically unfit due to post- traumatic stress disorder (PTSD), lumbar degenerative disc disease, and left lower extremities. The PEB recommend a disability rating of 80 percent and that he be permanently retired due to disability. 8. On 7 June 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The medical advisor concluded the applicant enlisted in the ARNG in 2006 with an eight year commitment. He was mobilized in May 2010 and remained on active duty status until June 2011. At the time of release from active duty, and return to guard status, the applicant did not report or claim a condition requiring treatment or referral to the MEB. Furthermore, the record does not indicate the applicant had a condition that fell below medical retention standards for which he should have been routed through the MEB. Rather, he completed his active duty service with the corresponding DD Form 214 issued. He completed an additional three years in the ARNG, fulfilling his eight year contract, with an MEB initiated at the end of his service. The applicant’s National Guard Report of Separation and Record of Service corresponds with this period of service; Separation as Medical, Physical, or Mental Condition with an Honorable characterization. A copy of the complete medical advisory was provided to the Board for their review and consideration. 9. On 11 June 2019, the applicant was provided a copy of the medical advisory for comment or rebuttal. He did not respond. 10. Army Regulation 635-200, states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. A DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty. 11. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. 12. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. 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. Paragraph 3-2 states 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 13. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 14. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the 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. These two government agencies operate under different policies. 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. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement and the medical advisory opinion, the Board found insufficient evidence to grant relief. The Board agreed with the medical advisory opinion that the applicant met medical retention standards at the time of discharge from active service on 5 June 2011. At the time of discharge from active service, the record is void of any indication that the applicant had an unfitting medical disability or condition that would have resulted in MEB/PEB processing. The Board also agreed with the medical advisory opinion that the applicant continued to serve an additional three years in the Army National Guard, fulfilling his eight-year contract and underwent an MEB at the end of this service. Therefore, the Board agreed that the applicant’s 5 June 2011 discharge was proper and fitting and there is insufficient evidence in the applicant’s medical and service records of a service- related medical disability or condition that would support a change in the character or narrative reason at the time of discharge from active duty. The VA properly provided him support and benefits for his medical concerns post-service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. A DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. 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. Paragraph 3-2 states 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 5. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 6. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the 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. These two government agencies operate under different policies. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180014327 4 1