MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 06 MARCH 2003
         DOCKET NUMBER: AR2002077934

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Ms. Linda D. Simmons		Member
Mr. Frank C. Jones II		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 20 percent disability rating be increased to 40 percent, thereby correcting his record to reflect physical disability retirement.

APPLICANT STATES: In effect, his medical condition meets the requirements for a 40 percent disability rating. He takes insulin injections three or four times a day, has a restricted diet, and regulation of his activities.

The applicant attaches copies of the military and Department of Veterans Affairs' regulations for rating diabetes, medical documents, his physical profile report, and statements by his commander and from doctors. He provides a listing of activities that must be regulated or restricted because of his diabetes.

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

The applicant entered on active duty on 29 January 1997 and remained on continuous active duty until his discharge in 2002, attaining the rank of staff sergeant.

The applicant’s two NCO Evaluation Reports, one for a 12 month period ending in January 2001, the other, ending in January 2002, submitted by the applicant with his request, show that his rating officials considered him a soldier with unlimited potential who should be promoted without delay.

A 4 February 2002 medical report from Evans Army Community Hospital at Fort Carson, Colorado, shows that the applicant was diagnosed on 26 November 2001 with hyperglycemia. That report shows that he had type I diabetes mellitus, which significantly impaired his ability to perform his current duties as a truck driver. His overall prognosis was good, provided he maintained good glycemic control. The report shows that he had a P3 profile limiting his ability to perform field duty and requiring that he be given access to a special diet, as well as injectable insulin medication. The examining physician stated that the applicant did not meet retention standards and should be referred to a Physical Evaluation Board (PEB).

A 21 February 2002 Medical Evaluation Board (MEB) narrative summary shows that the applicant was diagnosed with diabetes in November 2001, and because of his blurred vision, was started on insulin right away. His [then] current status was that he felt fine except that he had symptomatic hypoglycemia with blood sugars in the 40s and 50s one or twice a week, usually related to exercise or a delayed meal, and not requiring medical treatment. The report indicates that the applicant noted that if he were deployed to a field exercise he would be unable to

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refrigerate his insulin, and that he was also aware that it was not medically prudent to do shift work, and if he ran more than 2 miles his blood sugar dropped. The summary indicates that his last physical fitness test was 7 November 2001 when he passed with a score of 263. It indicates that the applicant was not sure if he wanted to continue on active duty. His commander confirmed that the applicant performed admirably and his condition did not affect his job performance. His prognosis could be best estimated as stable. The examining physician stated that he did not meet retention standards because of diabetes mellitus, type I, requiring insulin for control. The summary indicates that he was on a 3 1 1 1 1 1 profile with assignment limitations of no deployment and no assignment to units requiring continued consumption of combat rations. The accession profile and physical demands rating for his specialty is 3 2 3 2 2 2 and moderately heavy. The summary indicates that the applicant was referred to the PEB for adjudication of fitness for duty.

In an 18 March 2002 letter on the applicant’s behalf, the applicant’s physician stated that the applicant was currently on a regiment of both long and short-acting insulin, which he took three times a day, and that he also checked his blood sugar three to four times a day. The doctor stated that the applicant was intelligent and educated about his disease, and wanted to improve his medical condition; the applicant truly desired to remain on active duty. The doctor stated that he hoped that there was a way to keep him in the Army.

On 26 March 2002 a formal PEB determined that the applicant was physically unfit and recommended that he be separated with severance pay with a 20 percent disability rating. The PEB, in so doing, described the applicant’s condition as type I diabetes mellitus, onset November 2001, requiring multiple doses of injectable insulin daily and constant 4x daily monitoring of blood sugar. No diabetic complications; has occasional episodes of hypoglycemia, which do not require physician’s care (emergency room visits), usually associated with prolonged arduous physical activity. Able to perform at 7 to 8 METS such as jogging at 12 minute mile pace for 2 miles and walk 2.5 miles under 30 minutes. Hemoglobin A1c reported at 6.5 indicating good control.

In a 5 April 2002 rebuttal to the PEB the applicant stated that he did not agree with the statement that he was capable of doing very heavy work. He stated that he injects insulin 3-4 times a day, that he was on a restricted diet, and that his activities were greatly restricted. A doctor stated in the narrative summary that he would only be able to perform moderately heavy work. His commanding officer stated that he would not be able to perform his duties in his specialty or other physical activities, because walking back and forth and lifting made his sugar drop rapidly. He also had an updated profile showing the activities that he could and could not perform.

In a 5 April 2002 memorandum to the PEB, the applicant's commanding officer stated that the applicant was unable to deploy, was on a restricted diet, and had restricted activities. He stated that the applicant was working outside his specialty, that he did try working in the airfield, but his sugar dropped rapidly due to the constant walking, carrying material, and pushing equipment. Consequently, that work environment was unsafe for him. He stated that the applicant had problems with his 24-hour duties because staying awake throughout the night caused a problem with his food schedule. He stated that the applicant does not do physical training with the company because his sugar would go so low that he could only make 1 1/2 miles. He played sports but for a limited time. He stated that the applicant had to carry candy with him, but with him not noticing his sugar level, he shakes, so he does physical training at his own pace. He stated that the applicant requires access to insulin syringes, close hospital care, no field rations, a prescribed diet, and no over exertion for physical training.

A 16 April 2002 physical profile report shows that the applicant had a physical profile serial of 3 1 1 1 1 1 1 because of his diabetes. His assignment limitation included no 24-hour duty, no deployment, and no assignment to units requiring ongoing consumption of field rations. He required access to insulin syringes, monitoring, hospital care as needed, and an ADA prescribed diet. His profile did not prevent him from doing push-ups, sit-ups, walking at his own pace and distance, wearing a back pack, wearing a helmet carrying a rifle, or marching up to 2 miles. He could do prolonged, heavy exertion only as tolerated, but no prolonged extreme exertion.

On 9 July 2002 the applicant requested assistance from a Member of Congress (MC), describing his condition, his physical limitations, the medications he has to take, and his diet. He stated that he should receive a 40 percent disability rating; however, even though rebutting the 20 percent rating three times, it went back to the same board so there is no new look at his case. The 40 percent rating would give him a medical retirement, medical benefits for his family and the use of military facilities. He was working with his doctors to figure out how to keep his sugar under control. With his blood sugar levels being inconsistent and fluctuating he was afraid he might have to find new jobs that would work with his diabetes, which would not provide a stable environment for his family. It would be difficult to obtain a medical plan with his diabetes.

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In response to a query, on 15 July 2002, the Physical Disability Agency informed a MC that there was no error or injustice in the applicant's case and the PEB findings were correct. That agency stated that the applicant did not meet the criteria for a higher rating; that although he had to have his medications available and might have to monitor certain activities, he was still able to exercise and do most any activity he wanted as long as he was careful. The agency stated that the applicant was eligible for continued medical care and treatment from the VA and recommended that he open a file with the VA.

The applicant was discharged on 15 July 2002 because of his physical disability. He had 5 years, 5 months, and 17 days of service, and he received severance pay in the amount of $24404.40.

Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel. Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries. The ratings also represent the residual effects of these health impairments on civil occupations.
Part 4, paragraph 4.1 of the VASRD states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

Diagnostic code numbers appearing opposite the listed ratable disabilities in the VASRD are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis by the VA, and extend from 5000 to a possible 9999. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built up.” The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions.

Army Regulation 635-40 states in pertinent part that not all of the general policy provisions of the VASRD apply to the Army, and that Section I of Appendix B replaces or modifies paragraphs of the VASRD.

The VASRD rating for diabetes mellitus, a copy of which the applicant has submitted with his request, range from 100 percent to 10 percent. A 40 percent rating is indicative of an individual who requires insulin, who is on a restricted diet, and whose activities are regulated. A 20 percent rating pertains to an individual who requires insulin and who is on a restricted diet; or, who is taking an oral hypoglycemic agent and on a restricted diet.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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.

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 MEB and the informal PEB reports are unavailable to this Board; nonetheless, the February 2002 MEB summary indicates that the applicant was unfit for retention because of his diabetes, which required insulin for control. That summary also implied his diet was restricted, e.g., that he should not be assigned to units requiring continued consumption of combat rations. That report also indicates that the applicant himself was unsure if he wanted to remain on active duty. At that time his commander stated that his condition did not affect his job performance. As late as 18 March 2002, 8 days prior to the formal PEB, the applicant wanted to remain on active duty, as indicated by the letter on his behalf from his doctor, apparently feeling in spite of his diabetes, that he could satisfactorily perform his duties. The PEB felt otherwise, apparently because his diabetes required insulin for control. In so doing, the PEB determined that he had no diabetic complications, but that he did have occasional episodes of hypoglycemia (an abnormal diminished concentration of glucose in the blood); however, they did not require a physician's care.

2. The applicant's 16 April 2002 physical profile report indicated certain assignment limitations because of his diabetes. Furthermore, his profile prevented him from participating in the two mile run portion of the Army Physical Fitness Test. Prolonged extreme exertion was ruled out, although he could perform prolonged, heavy work as he could endure. He could perform most physical activities, to include walking at his own pace and distance, performing push-ups and sit-ups, marching up to two miles, wearing a backpack, carrying a rifle, and so forth.

3. The applicant has not provided convincing evidence to show that his disability rating of 20 percent was incorrect. 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 that requirement.

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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

__WTM _ __LDS__ ___FCJ__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077934
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030306
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.