MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 January 2002
         DOCKET NUMBER: AR2001063348

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Ted S. Kanamine		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his disability separation with severance pay be changed to a medical retirement.

APPLICANT STATES: That he believes his diabetic condition was the result of a traumatic injury to his pancreas. He was given a permanent profile which restricted him from performing the most basic tasks within his military occupational specialty of 11B1P (Airborne Infantry). The informal physical evaluation board (PEB) found him physically unfit with a disability rating of 20 percent. On the recommendation of his counsel, he waived a formal PEB. At the time, he was not familiar with the PEB process and relied on his counsel for advice. He understands now that the advice was generic. He provides no supporting evidence.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the Regular Army on 11 September 1997. He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman). He completed basic airborne training.

In October 1998, the applicant reported to the troop medical clinic for a complaint of a 20-pound weight loss, fatigue, polyuria, and polydipsia. He was diagnosed as having diabetes. On 12 November 1998, he was evaluated by a medical evaluation board (MEB) for diabetes. The applicant felt that he was doing well with respect to his diabetes control but expressed the desire to get the MEB accomplished so he could get on with his life. It was noted he was taking 10 units of regular insulin before meals, 10 units of NPH at bedtime, and 10 milligrams of benazepril once a day. He had no evidence of diabetic neuropathy or ophthalmologic disease, no skin lesions suggestive of diabetes, and no diabetic foot lesions. It was noted he had a knee injury that had existed prior to his entry in the service (EPTS). He was referred to a PEB with diagnoses of type I diabetes mellitus and mild overuse syndrome of the left knee, EPTS and not permanently aggravated by service. On 27 September 1999, the applicant agreed with the MEB’s findings and recommendation. It appears he submitted a statement with the MEB’s findings. He indicated that while he was not deployable, he had found a job at the U. S. Army Garrison, I Corps filling an 11B position working for Range Control.

On 1 October 1999, an informal PEB found the applicant unfit for duty by reason of having insulin-dependent diabetes mellitus (VA Schedule of Rating Disabilities (VASRD) code 7913), under good control, with no restrictions in aerobic activity but requiring a restricted diet. His left knee condition was found to be not unfitting. The PEB recommended he be separated with severance pay with a 20 percent disability rating. On 12 October 1999, the applicant nonconcurred in the findings and recommendation and demanded a formal hearing. On 26 October 1999, he indicated that he was prepared to request the formal PEB find him fit for duty. On 17 November 1999, he waived his right to a formal PEB.

On 22 December 1999, the applicant was discharged, with severance pay, by reason of a disability. He had completed 2 years, 3 months, and 12 days of creditable active service.

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. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is 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 VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.

The VASRD gives code 7913, Diabetes Mellitus, a 10 percent rating when it is mild, controlled by a restricted diet, without insulin, and without impairment of health or vigor or limitation of activity; a 20 percent rating when it is moderate, with moderate insulin or oral hypoglycemic agent dosage, a restricted diet, without impairment of health or vigor or limitation of activity; and a 40 percent rating when it is moderately severe, requiring large insulin dosage, a restricted diet, and careful regulation of activities, i.e., avoidance of strenuous occupational and recreational activities.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. 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 this requirement.

2. The evidence of record shows that the applicant’s diabetes was being controlled with a moderate dosage of medication. The PEB noted that he had no restrictions in aerobic activity. The Board notes that the applicant initially did not concur in the PEB’s findings and recommendations but it appears his nonconcurrence was based on his belief that he was fit for duty rather than because he believed his condition was worse than what the PEB determined.

3. Any rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level.

4. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__fne___ __tsk___ __jtm___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001063348
SUFFIX
RECON
DATE BOARDED	20010110
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.02
2.
3.
4.
5.
6.