RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            10 JUNE 2004
      DOCKET NUMBER:   AR2003097099


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Joe Schroeder                 |     |Member               |
|     |Mr. Robert Duecaster              |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be granted a 30 percent
disability for asthma, thereby entitling him to disability retirement.

2.  The applicant defers to counsel for his statement.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant receive a 30 percent disability
rating for asthma.

2.  Counsel states, in effect, that the Physical Evaluation Board (PEB) and
Army Physical Disability Agency (PDA) erred in exercising independent
judgment in determining that the applicant’s asthma was not service
unfitting.  He states that he and the applicant have the “word, evaluation
and reputation of two Army officers in the medical corps” whose opinion is
that the applicant’s “asthma is moderate, persistent and unfitting.”

3.  Counsel states that the applicant suffers from asthma that is
characterized as moderate, persistent and medically unacceptable and argues
that there was “sufficient evidence” for the PEB and PDA to determine that
the applicant’s asthma was unfitting and thus deserving of compensation.
He notes that the applicant’s asthma is disqualifying because:

      a.  his responsibilities include OIC (officer in charge) of the range
and that outdoor environments tend to trigger his asthma.

      b.  he is in charge of administering the APFT (Army Physical Fitness
Test) and that the Army should not reasonably expect those who cannot
medically complete this task to be the officer responsible for conducting
the operation.

      c.  general soldiering obligations of an Army officer include being
physically capable of carrying a rucksack, marching, running, completing
anaerobic activities, and donning chemical protective gear, and that
minimal physical exertion causes the applicant to suffer severe asthma
symptoms.

      d.  he is vulnerable to dust and mold and because it is impossible to
anticipate what buildings the applicant would be required to enter and work
in and as a transportation officer, “garage” type environments that
accumulate dust and mold are likely work sites.

4.  Counsel notes that the PEB relied heavily on the fact that the
applicant’s profile did not conclusively include asthma as an unfitting
illness.  However, a
23 December 2002 addendum to the original MEB (Medical Evaluation Board)
characterized the applicant’s asthma as “medically unacceptable” and an
updated, more current profile more accurately reflects a profile of “U-3.”

5.  Counsel provides a copy of the “addendum” mentioned in his appeal to
the Board, and a copy of the updated profile.  Also provided to the Board
were extracts from the applicant’s service medical records regarding
treatment for his asthma as well as copies of treatment received subsequent
to the applicant’s separation from active duty.

CONSIDERATION OF EVIDENCE:

1.  Other than the documents provided by the applicant, records available
to the Board were limited to the applicant’s recent performance evaluation
reports, award certificates, his August 2003 report of separation, and
copies of his MEB and PEB actions.  His August 2003 separation document
indicates that he had approximately 2 months of prior active duty and 4
years of inactive service prior to entering active duty on 4 June 1995.

2.  A 1 August 1996 medical treatment document indicates he was referred to
respiratory therapy as a result of “exercise induced asthma.”  He was
ultimately issued a temporary profile, with two follow-up visits in August
and a final visit on 23 August 1996 when it was noted that his asthma was
“still not well controlled” and additional medication was prescribed.

3.  Medical documents provided by the applicant and his counsel indicate
that the applicant had follow-up, or sought, medical treatment for his
asthma in February 1997 and again in April 1998 when his asthma was
diagnosed as “mild persistent.”  In June 1998 he was promoted to the rank
of captain.

4.  In October 1998 the applicant successfully completed the Combined
Logistics Officer Advanced Course.  His academic evaluation report
indicated that he had a physical profile which precluded taking an APFT.

5.  Performance evaluation reports for rating periods ending in October
1999 and September 2000 also indicated that the applicant had a physical
profile.  However, in spite of his physical profile, the evaluation reports
noted he was an outstanding performer who should be promoted.  His senior
raters placed him in the top rating block as among the “best qualified”
officers and recommended that he be placed in a company command position.

6.  In January 2001 the applicant again sought medical treatment for his
asthma. A 22 January 2001 document, from the Adult Asthma Program Manager
at McDonald Army Community Hospital at Fort Eustis, Virginia indicated that
the applicant’s asthma was classified, at that time, as “moderate
persistent.”  An internal medicine physician noted that the applicant’s
asthma was “exercise induced” and that he may have “seasonal allergies.”
He recommended that the applicant consider a move back to Fort Meade,
Maryland as the “air” may “have a drying effect that may worsen [his]
condition.”  By 9 May 2001, however, that same physician noted that the
applicant’s “seasonal allergies and exercise induced asthma” had improved
with medication.

7.  In October 2001 the applicant received a less than favorable
performance evaluation report for the rating period ending on 8 July 2001.
That report, which indicated that the applicant was precluded from taking
the APFT, noted shortcomings in the applicant’s personal and professional
standards, but did not attribute any of those shortcomings to his asthma.
Rather, the substandard rating questioned the applicant’s integrity.

8.  By March 2002, however, the applicant had been reassigned to another
position at Fort Eustis.  His performance evaluation report, rendered in
March 2002, for the rating period ending in January 2002 noted that the
applicant had passed an APFT in October 2001, that his performance was
satisfactory, and that he was fully qualified for promotion to the rank of
major.

9.  The applicant was issued a permanent physical profile on 8 August 2002
for “left knee pain, failed surgery” which precluded prolonged standing,
with no squatting, stooping, or bending.  The profile did, however, permit
the applicant to walk at his own pace and distance, unlimited swimming,
wearing a helmet and lifting up to 40 pounds.

10.  On 22 August 2002 the applicant underwent a Medical Evaluation Board
(MEB).  His “chief” complaints were left knee pain and right wrist pain.
The evaluating physician did, however, note the applicant’s “past history
is significant for asthma diagnosed on active duty since 1996.”  The
physician noted that the applicant’s left knee pain and right wrist pain
failed to meet retention criteria and recommended the applicant be referred
to a PEB.

11.  On 28 August 2002 an addendum was added to the MEB noting that the
applicant had “trouble breathing with exercise.”  It noted that his
“current regimen being Advair and Proventil which keeps his symptoms
relatively stable” and that his “asthma symptoms of shortness of breath and
cough are worse in the months of January through February; however, his
asthma has not affected his job performance.”  The MEB evaluation also
noted that the applicant’s “lungs, the respiratory rhythm and depth was
normal, clear to auscultation with no wheezes noted.”  The evaluating
physician concluded that the applicant’s “current physical status as
relates to his diagnosis of asthma is good and stable unless he is exposed
to one of his triggers which would be in the months of January to April,
weather extremes or physical exertion.”  The recommendation was that the
applicant “continue the current therapy for his mild persistent asthma….”
12.  The MEB noted that the applicant’s left knee pain (MEB diagnosis 1)
and right wrist pain (MEB diagnosis 2) were medically unacceptable, but
that his asthma (MEB diagnosis 3), which was mild and stable, was medically
acceptable.  The applicant concurred with the findings and recommendation
of the MEB.

13.  On 3 October 2002 an informal PEB concluded that the applicant’s left
knee pain prevented performance of duty in his grade and specialty, but
that it did not meet minimal rating criteria and as such was assigned a 0
percent disability rating.  The PEB found his right wrist pain to be not
unfitting and therefore not ratable and his asthma to be medically
acceptable.  The PEB recommended that the applicant be separated with
severance pay.  The applicant did not concur with the findings and
recommendation of the informal PEB and demanded a formal hearing.

14.  A formal PEB convened on 3 December 2002 and ultimately concluded that
the applicant’s right wrist pain was also unfitting, but that it did not
meet the minimal rating criteria and as such was also assigned a 0 percent
disability rating.  His asthma was again found to be medically acceptable.
The formal PEB recommended the applicant be separated with severance pay
based on his medically unacceptable left knee pain and right wrist pain.

15.  A 5 December 2002 physical profile also noted the applicant’s asthma
as “moderate, persistent” and added his right wrist pain to the previous
physical profile.  The new profile also precluded exposure to cold less
than 45 degrees, that dust and mold trigger asthma attacks, and that he was
not to take the APFT.

16.  The applicant apparently nonconcurred with the findings of the formal
PEB and submitted an appeal.  Although the appeal was not in records
available to the Board, an undated statement provided by the applicant,
authenticated by a Medical Corps physician from the Internal Medicine
Service at Fort Eustis and titled “Medical Board Summary for Formal
Appeal,” notes that the applicant was under the care of the author of the
statement.  That physician stated that the applicant’s asthma “is
categorized as moderate, persistent, which means that he has symptoms which
include cough and shortness of breath, daily.”  The physician noted that
the applicant’s asthma symptoms were triggered by dust, mold, physical
exertion and changes in weather and that he was “unable to run significant
distances or exert himself physically without symptoms.”  That physician
stated the applicant’s asthma was “medically unacceptable.”

17.  A 28 April 2003 decision by the United States Army Physical Disability
Agency noted the applicant’s disagreement with the PEB but ultimately
concluded that his case was properly adjudicated, that the findings and
recommendation of the PEB were supported by substantial evidence and were
therefore affirmed.
18.  The United States Army Physical Disability Agency decision also noted
that the final disposition of the applicant’s PEB was postponed “pending
the results of your Department of the Army Active Duty Board.”  A 15 April
2003 document, contained in the applicant’s PEB/MEB proceedings packet,
indicates that the Department of the Army Active Duty Board approved the
applicant’s retention on active duty with reassignment and noted that if
the applicant were found “to be fit for duty and retention” he would be
reassigned.  There were no other documents available to the Board regarding
his Army Active Duty Board proceedings.

19.  On 28 April 2003 the findings and recommendation of the formal PEB
were approved on behalf of the Secretary of the Army.  On 8 August 2003 the
applicant was discharged by reason of physical disability and received more
than $83,000.00 in disability severance pay.

20.  Subsequent to the applicant’s separation from active duty, he
continued to seek medical treatment for his asthma.  A 14 August 2003
document notes that the applicant reported that he “sometimes wheezes,”
that he did not use tobacco, that his habits included “exercising
regularly” and that he appeared to “be in no acute distress.”  It noted
that he had been to the UCC (urgent care clinic) 3 to 4 times in 2002.  He
was released without limitations and his asthma was described as “moderate
persistent.”  He saw medical officials again on 3 October 2003 and 22
October 2003.  In both instances he was released without limitations and
the appointments appeared to have resulted from follow-ups to “asthma
exacerbation.”  The 3 October 2003 medical statement indicates that the
asthma exacerbation occurred “4 days ago.”  The 3 October 2003 statement
notes “asthma extrinsic (Extrinsic Asthma w/o [without] mention of Status
Asthmaticus, severe),” however, the 22 October 2003 statement indicated
“asthma extrinsic (Extrinsic Asthma w/o mention of Status Asthmaticus,
moderate).”

21.  Army Regulation 635-40 states that the mere presence of an impairment
does not, of itself, justify a finding of unfitness because of physical
disability.  In each case, it is necessary to compare the nature and degree
of physical disability present with the requirements of the duties the
Soldier reasonably may be expected to perform because of his or her office,
grade, rank, or rating.

22.  Department of Defense Instruction 1332.38 states that the inability to
perform the duties of office, grade, rank or rating in every geographic
location and under every conceivable circumstance will not be the sole
basis for a finding of unfitness.

23.  Dorland’s Illustrated Medical Dictionary, 27th Edition, notes that
“asthma extrinsic” is asthma caused by some factor in the environment,
usually allergic asthma.  Status asthmaticus is an acute exacerbation of
asthma that remains unresponsive to initial treatment with bronchodilators.
 Status asthmaticus can vary from a mild to a severe form.

24.  The Department of Veterans Affairs Schedule for Rating Disabilities
(VASRD) notes that a 10 percent rating may be warranted for bronchial
asthma “mild; paroxysms [a sudden recurrence or intensification of
symptoms] of asthmatic type breathing (high pitched expiratory wheezing and
dyspnea [difficult or labored breathing]) occurring several times a year
with no clinical findings between attacks” and that a 30 percent rating may
be warranted for bronchial asthma “moderate; asthmatic attacks rather
frequent (separated by only 10-14 day intervals) with moderate dyspnea on
exertion between attacks.”  It also states that in the absence of clinical
findings of asthma at time of examination, a verified history of asthmatic
attacks must be of record.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the applicant may have asthma, or that a variety of
medical opinions differ as to the severity of his asthma, is not, in and of
itself, a basis to conclude that the asthma was medically unfitting and
therefore required a rating. Rather, the true test must be whether or not
the asthma impacted on the applicant’s ability to perform his duties.

2.  Contrary to the applicant’s and his counsel’s contention, the evidence
available to the Board, in the form of his periodic performance
evaluations, indicates that the applicant was performing his duties, in
spite of his asthma.

3.  It should also be noted that the applicant himself concurred with the
original findings of the MEB that his asthma was medically acceptable, even
after his asthma diagnosis was added by addendum.

4.  The medical evidence provided to the Board indicates that the applicant
was treated only periodically for his asthma while on active duty, that it
was controlled via medication, and that it did not impact on his ability to
perform his duties.  The fact that during his original MEB examination his
asthma was merely mentioned in passing further supports the conclusion that
even the applicant may have felt his asthma was not severe enough to impact
his performance of duty.  It was not until several days after his initial
examination that the applicant’s asthma was raised as a complaint and then
the evaluating physician noted that the applicant’s medication “keeps his
symptoms relatively stable.”

5.  While the applicant may now be having more severe asthma reactions,
that does not serve as evidence that his asthma was unfitting, or that it
required a rating at the time of his separation from active duty.  There is
no evidence, and the applicant has not provided any, that his asthma
affected his duty performance.
6.  Counsel’s argument that because the applicant could not take the APFT,
that he was precluded from performing certain duties associated with his
military specialty, or that he might not be able to perform all the duties
perceived as required by a military officer, are also not requirements for
a finding of unfitness nor serve as a basis to warrant a disability rating.
 There are numerous examples of military officers who have had long and
distinguished careers in spite of medically limiting physical profiles.

7.  In order to justify correction of a military record the applicant must
show, 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MM___  __JS  ___  __RD ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            _____Melvin Meyer_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003097099                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040610                                |
|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.                      |                                        |