MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 February 2003
         DOCKET NUMBER: AR2002073073

         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
Mr. Lee Cates		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Ronald J. Weaver		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 her records be corrected to show she was retired based on a service-connected medical condition

APPLICANT STATES: The applicant defers to counsel.

COUNSEL CONTENDS: That the applicant’s medical records revealed her asthma was the direct result of being exposed to jet fuel. Also, she had a physical profile requiring no exposure to petroleum-based products, chemicals, or lubricants. Also noted, she was involved in an automobile accident in January 1997, which resulted in multiple injuries to include post-traumatic headaches, neck strain, low back condition and bipolar disorder. These conditions were not considered in her Physical Evaluation Board (PEB). After release from service, she was granted a disability rating by the Department of Veterans Affairs (VA) of 30 percent for asthma, 10 percent for neck strain, 10 percent for low back condition, 10 percent for traumatic arthritis left foot, 0 percent for hallux valgus right foot and 0 percent for hallux valgus left foot. She was also found to be unable to secure gainful employment due to the severity of her service-connected disabilities. It is alleged that the applicant was improperly represented at her PEB and that the additional disabilities should have been considered.

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

On 11 March 1996, she enlisted in the Army Reserve Delayed Enlistment Program.

On 8 April 1996, a Standard Form 93 (Report of Medical History) indicates the applicant had a prior history of asthma.

On 15 April 1996, the Army Recruiting Command Surgeon indicated she was medically disqualified, but granted the applicant a medical waiver for her history of asthma with a physical profile of 211111B.

On 30 April 1996, the applicant enlisted in the Regular Army for 3 years with Army College Fund and training of choice. She completed her required training and was awarded military occupational specialty (MOS) 77F (Petroleum Supply Specialist).

During the period 24 September 1996 through 23 September 1998, she was assigned to a unit in Germany.

On 25 October 1996, she was issued a permanent physical profile of P3 with no exposure to petroleum, solvent, or paint fumes. The profile further indicates the command was considering reclassification.

During the period 12 March through 5 May 1997, she was temporarily assigned to Bosnia.

On 5 March 1997, MOS/Medial Retention Board (MMRB) proceedings indicate she was referred to a Medical Evaluation Board (MEBD)/PEB. The MMRB found that she suffered from severe asthma that is associated with exposure to petroleum, solvent or paint fumes and that her asthma limits her from conducting activities that are prevalent with all work environments. It was also noted by members of the MMRB that she had this medical condition prior to military service. She was advanced to pay grade E-4, effective 1 July 1998.

On 24 August 1998, her physical profile was changed to P2 from P3 based on her asthma, soy and egg allergy and allergic rhinitis. Her assignment limitations were: no exposure to petroleum-based products/chemicals/lubricants; no mowing or raking grass and the alternate Army Physical Fitness Test. On 8 February 1999, her P2 profile was changed back to P3.

The facts and circumstances surrounding the applicant’s MEBD and PEB are not contained in the available records or provided by the applicant or counsel. However, her DD Form 214 (Certificate of Release or Discharge from Active Duty) does show that she was discharged under the provisions of Army Regulation 635-40, based on a completed PEB.

It appears that the applicant non-concurred with the findings and recommendations of the PEB. On 25 June 1999, the Physical Disability Agency affirmed the findings and recommendations of the PEB noting that the PEB had properly adjudicated her case.

On 20 July 1999, the Chief, Patient Administration Division, US Army Medical Activity, Wuerzburg, Germany requested a second extension of the expiration of the applicant’s term of service to 20 October 1999, based on her current medical evaluation.

On 23 October 1999, she was honorably separated, in pay grade E-4, under Army Regulation 635-40, paragraph 4-24B(4), based on a disability, which had existed prior to service, as determined by a PEB. Her separation documents indicates that she had 3 years, 5 months and 24 days of creditable service. There is no evidence that the issues of her neck strain, low back condition, and arthritis were considered unfitting.

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On 30 August 2000, the VA found the applicant to be service-connected for asthma, 30 percent; post traumatic headaches, 30 percent; neck strain, 10 percent; low back condition, 10 percent; bipolar disorder, 30 percent; traumatic arthritis, 1^st metatarsal phalangeal joint, left foot, 10 percent, hallux valgus, right foot, 0 percent; and halux valgus, left foot, 0 percent for a combined rating of 80 percent disability.

On 20 February 2001, the 30 August 2000 VA decision was reaffirmed.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability they must be unable to perform the duties of his/her office, grade, rank or rating.

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. Appendix B, paragraph 10 states that when considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service. This will apply whether the particular condition was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time. Hereditary, congenital or other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service-aggravated complications are clearly documented.

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

Title 38, United States 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.

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. The evidence in this case does not support the applicant or counsel’s contention that there was an error or injustice in her separation from active duty.

2. The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.

3. The applicant's disability was properly rated as having existed prior to service. Her other medical conditions appear to have not been considered unfitting for military service.

4. 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.

5. 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

_MHM___ _RJW__ _CLG____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073073
SUFFIX
RECON
DATE BOARDED	20030204
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19991023
DISCHARGE AUTHORITY	AR 635-40
DISCHARGE REASON	Disability, EPTS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144
2.
3.
4.
5.
6.