MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002075429

         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
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Mr. William D. Powers		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 retirement be changed to a medical retirement with promotion to Sergeant First Class (SFC), E-7.

APPLICANT STATES: That he was forced to retire on 1 January 2002 after 18 years and 9 months of active duty due to a exertional rhabdomyolysis, which causes muscular deterioration accompanied by intense muscular pain. He is easily fatigued now and cannot perform physically without severe muscular aches and pain for days. He was not given disability compensation for this debilitating condition. He was merely deemed unfit for further service. They only offered him two options -- disability severance pay or early retirement. The first option was not viable. The second option allowed him to retire with regular benefits but 2.5 percent was deducted for each year under 20. Another problem with this option was he was selected for promotion to SFC. He would have been promoted to SFC effective 1 November 2001 and been eligible to serve for 24 years. There are many cases of soldiers having injuries or illnesses that limit their service but they are allowed to remain in the military in a capacity that takes into account their condition. He was told there was no real opportunity to appeal the decision. Now the Department of Veterans Affairs (VA) has not compensated him for this condition because the Army did not. Supporting evidence is as listed on the DD Form 149.

EVIDENCE OF RECORD: The applicant's military records are not available. Information contained herein was obtained from alternate sources.

The applicant enlisted in the Regular Army on 1 March 1983. He was promoted to Staff Sergeant, E-6 on 1 August 1995 in military occupational specialty (MOS) 31C (Single Channel Radio Operator).

On 25 July 2001, a Medical Evaluation Board (MEB) Narrative Summary noted that the applicant was referred for a second episode of rhabomyolysis. (Exertional rhabomyolysis is defined in Dorland's Illustrated Medical Dictionary, 26th edition as disintegration or dissolution of muscle, associated with excretion of myoglobin in the urine. Symptoms, due to intense, prolonged physical exertion, often resemble those elicited by exercise in persons with occlusive arterial disease.) The condition initially began with an episode in September 1999 after a period of intense physical activity. He did not have a heat stroke. His most recent hospitalization for this condition occurred in November to December 2000. He was in the hospital less than 48 hours and required a couple days of convalescent leave. He had no coagulopathy or hepatic injury as well as normal renal function following his most recent episode although during hospitalization he had an elevation in his creatinine kinase of approximately 13,000 which responded well to IV hydration.

The Narrative Summary noted the applicant was in good health, had limitations in activity to prevent further episodes, had not had any sequelae due to his diagnosis, and continued to do well as long as he adhered to his physical profile. According to his commander, he was able to perform all the duties required of his primary MOS but was unable to perform satisfactorily in his duties as a soldier with the 101st Airborne Division with regards to his ability to perform maximum activities, ruck march, and other various physical activities. The MEB recommended to further proceed to the Physical Evaluation Board (PEB). On 1 August 2001, the applicant agreed with the MEB's findings and recommendations.

On 6 August 2001, an informal PEB found the applicant unfit due to having exertional rhabdomyolysis and recommended his separation with a disability rating of 0 percent and severance pay if eligible.

By memorandum dated 6 August 2001, the applicant was informed that an informal PEB found his unfitting condition warranted a combined rating of less than 30 percent which would result in his separation with severance pay. He was informed that, along with the PEB options, he might want to consider applying for early retirement. He could also apply for Continuance on Active Duty (COAD). If approved, he would be continued on active duty unless his condition deteriorated or until he voluntarily retired. He would be required to process through the Physical Disability System again upon retirement at which time he could be found fit or his disability percentage changed. He was requested to complete an enclosed memorandum of intent within 10 days. He could still demand a formal hearing even if he intended to apply for one of these options.

The SFC promotion list was released on 23 August 2001 and the applicant was notified that he had been selected for promotion.

The applicant apparently opted to elect early retirement. A U. S. Total Army Personnel Command memorandum dated 30 August 2001 noted that his request for early retirement was conditionally approved for retirement on 1 January 2002.

On 5 September 2001, the applicant's PEB case was returned without action as he had been approved for early retirement in lieu of separation with severance pay.

On 1 January 2002, the applicant retired, in pay grade E-6, after completing 18 years and 10 months of creditable active service.

On 1 February 2002, the VA awarded the applicant a combined disability rating of 40 percent (degenerative joint disease of the left knee, 10 percent; eczema of the neck, 10 percent; degenerative joint disease of the cervical spine, post cervical fusion, 10 percent; degenerative disc disease of the lumbar spine, 10 percent; degenerative joint disease of the right knee, 10 percent; exertional rhabdomyolysis, 0 percent; onychomycosis, 0 percent; and eczema of the left flank, 0 percent.) As the reason for the 0 percent rating for exertional rhabdomyolysis, the VA noted that he offered no subjective complaint of a current residual condition related to rhabdomyolysis. An exercise treadmill test resulted in normal findings. Laboratory tests noted a hepatic profile normal with creatinine kinase of 287. A physical exam showed a normal cardiovascular exam with no findings of current rhabdomyolysis.

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. It states that 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 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.

Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation. Paragraph 3-46, Heat Illness and Injury, sub paragraph 3-46b(1)(b)(2) states that soldiers will be referred to an MEB after an episode of heat stroke or exertional rhabdomyolysis. If the soldier has had a full clinical recovery, the MEB may recommend a trial of duty with a temporary profile. Any evidence of significant heat intolerance either during the period of the profile or subsequently requires an addendum to the MEB and referral to a PEB.

The VA Schedule of Rating Disabilities 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. 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 5321, muscles of respiration, a 20 percent rating when the condition is moderately severe or severe, a 10 percent rating when the condition is moderate, and a 0 percent rating when the condition is slight.

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.

Title 10, U. S. 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.

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 shows that the applicant was not "forced" to retire. He concurred with the MEB's recommendation to proceed with a PEB. After the informal PEB found him to be unfit for duty, he was offered not two options but rather three options. He contends that had he been promoted to SFC he would have been eligible to serve for 24 years and that there are "many cases of soldiers having injuries or illnesses that limit their service but they are allowed to remain in the military in a capacity that takes into account their condition." The third option gave the applicant that same opportunity. He could have elected to request COAD yet there is no evidence that he did so. The provided evidence shows he elected early retirement.

3. The evidence shows that the applicant's commander felt the applicant was able to perform the duties of his MOS; it was just that his condition hindered the performance of the additional duties required of a soldier in the 101st Airborne Division. There is no evidence to show the applicant requested a formal PEB or otherwise disagreed with his commander's claim that he could perform his duties. He was notified in writing that he could demand a formal hearing. It is not credible that a soldier hoping to soon be a senior noncommissioned officer would believe he had "no real opportunity to appeal the decision."

4. The 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. Its decisions are made independent of any Army disability rating decisions (as evidenced by the fact the VA rated the applicant for five conditions the Army did not even consider because they were not unfitting). 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. It is noted that the VA found the applicant had no findings of current rhabdomyolysis.

5. It is also noted that the maximum disability rating the applicant could have received for his one unfitting condition, exertional rhabdomyolysis, was 20 percent, below the 30 percent required for a disability retirement. There is no evidence, however, to show that his condition was ever other than slight (a 0 percent rating).

6. 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

__JNS__ __DPH___ __WDP__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075429
SUFFIX
RECON
DATE BOARDED	2002/09/12
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.