RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 MARCH 2005
      DOCKET NUMBER:  AR20040004180


      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. Patrick McGann                |     |Member               |
|     |Ms. Susan Powers                  |     |Member               |

      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 that his 1998 separation from the Army be
corrected to show that he was retired by reason of physical disability.

2.  The applicant states, in effect, that his military career was
interrupted because of a medical condition for which he is now receiving
disability compensation from the Department of Veterans Affairs.

3.  The applicant states that in July 1992 he was hospitalized with
“massive upper G.I. [gastrointestinal]” bleeding and spent several
following years with temporary profiles with complications of excessive
bloating, severe heartburn, and fatigue.  He notes that in May 1996 he
failed to pass the Army Physical Fitness Test (APFT) as part of his Basic
Noncommissioned Officer Course (BNCOC).  He states that when he returned to
his unit his command sergeant major was disappointed, but only told him to
“fix-it.”  As a result of the failure, he states that he was unable to be
promoted to the next grade and in 1998 was involuntarily released from
active duty because he had reached the retention control point for
individuals in pay grade E-5.

4.  The applicant states that following his release from the BNCOC he
“continued to bounce between the hospital, temporary duty assignments, and
unit endeavors.”

5.  He states that prior to his hospitalization he was “an average PT
scorer” and after it was very difficult for him to compete with his peers
“trying to excel in physical fitness.”  He states it was extremely
unpleasant to try and do sit-ups with a bloated stomach, painful to run
with constant heartburn, and that he had very little strength to do push-
ups.

6.  He states that he was never evaluated for any permanent profile, nor
evaluated by a Medical Evaluation Board or Physical Evaluation Board.  He
argues that he was an outstanding Soldier who received many accolades on
behalf of the Army for his food service work, and represented the Army and
the United States in culinary competitions worldwide, and was selected as
the Army’s “Chef of the Year.”

7.  He states that he has received a 30 percent disability rating from the
Department of Veterans Affairs “for the illness that happened in 1992” and
that had his condition been more closely monitored and more questions
answered while he was on active duty he would have received the same 30
percent rating from the Army and received disability separation or medical
retirement.  He states that his performance as a Soldier was never in
question so “maybe it was just overlooked.”

8.  The applicant provides extracts from his service medical records, a
copy of his Department of Veterans Affairs rating, copies of various
performance evaluation reports, and numerous documents commending his
performance as an Army food service specialist.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 April 1998.  The application submitted in this case is
dated is dated 20 November 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant served an
initial period of active duty between June 1983 and November 1989.  He was
released from active duty at that time in pay grade E-5.

4.  On 4 October 1990 the applicant reenlisted in the Regular Army and
returned to active duty in pay grade E-5.  On 26 April 1994 the applicant
reenlisted for an additional 4 years.

5.  Service medical records, provided by the applicant, indicate that he
was hospitalized on 6 July 1992 with a final diagnosis of “upper G.I. bleed
secondary to severe gastritis” which was the primary reason of admission to
the hospital.  He was discharged to duty on 10 July 1992 and instructed to
return to the emergency room if “problem persisted.”  He was prescribed
Zantac and iron, and urged to stop smoking.

6.  Medical documents provided by the applicant indicate that he sought, or
was seen by medical officials, four times in 1993 for bloating and or
heartburn, and an endoscopy was done in March 1993.  He was treated for
ankle pain in September 1994, and stomach cramps in April 1995.  In 1996 he
underwent two additional endoscopies (June and December) and was seen in
May 1996 for abdominal bloating and runny stools.  In 1997 he was seen in
April for bloating and in June for excessive bloating.

7.  Performance evaluation reports, also provided by the applicant,
indicate that in September 1993 he had a physical profile which precluded
taking the APFT.  However, the performance evaluation report noted that he
was participating in regular Army exercises, and that his profile did not
hinder his performance.  He also had a physical profile in July 1996 which
precluded taking an APFT.  Other than these two reports, his remaining
performance evaluation reports noted that he passed the APFT in March 1992,
October 1992, May 1994, May 1995, and December 1996.  His February 1995
performance evaluation report also noted that the applicant had
successfully completed a 133-mile relay and a 12-mile road march during the
rating period in question.

8.  There are no documents contained in the applicant’s file concerning his
release from BNCOC.

9.  On 25 April 1998, at the conclusion of his 1994 reenlistment contract,
the applicant was released from active duty, in pay grade E-5, with an
honorable characterization of service.  His separation code (JBK) indicates
that he was involuntarily separated at the conclusion of his contract
because he was ineligible to reenlist.  He received more than $30,000.00 in
separation pay.

10.  Army Regulation 601-280 states that Soldiers serving in pay grade E-5
who are not on a promotion list for pay grade E-6 are precluding from
serving in the Army beyond 15 years and are not eligible to reenlistment if
such a reenlistment would result in a separation date beyond the 15 year
mark.  At the time of the applicant’s separation he had approximately 14
years and 2 months of active Federal service.

11.  Army Regulation 600-8-19 states that the minimum time in service
requirement for promotion to pay grade E-6 is 48 months and the minimum
time in grade if 5 months.

12.  The applicant’s file confirms that his accomplishments as a military
food service specialist and chef were well regarded.  During his military
career he received two Meritorious Service Medals, including one awarded in
September 1996.  He was awarded numerous Army Commendation Medals, Army
Achievement Medals, four awards of the Army Good Conduct Medal, and
multiple letters of commendation.

13.  In December 2003 the Department of Veterans Affairs granted the
applicant a 30 percent disability rating for “gastritis, esophgitis, and
gastro-esophageal reflux disease” with an effective date of 22 November
2002.  The decision was the result of an appeal by the applicant of an
earlier 10 percent rating.

14.  The Department of Veterans Affairs rating decision noted that in March
and April 2003, the applicant reported “symptoms of difficulty swallowing,
substernal chest and arm pain, regurgitation, epigastric distress that
results in loss of sleep and fatigue, and heartburn.”  It noted that “no
occupational impairment nor any functional restrictions/limitations due to
the digestive symptoms [were] indicated.” A 30 percent rating was
established “based upon findings of persistently recurrent epigastric
distress with dysphagia, pyrosis, and regurgitation, accompanied by
substernal arm or shoulder pain which is productive of considerable
impairment of health.”

15.  Field Manual 21-20 states that a Soldier’s level of physical fitness
has a direct impact on combat readiness and although not the “heart of the
Army’s physical fitness program” the APFT is the primary instrument for
evaluating the fitness level of each Soldier.  The manual provides for the
identification of Soldiers with medically limiting defects to be placed in
a physical fitness program consistent with the limitations as advised by
their medical authorities.  It states that alternate APFT events are
available to assess the aerobic fitness and muscular endurance of Soldiers,
with permanent medical profiles or long-term (greater than 3 months)
temporary profiles, who cannot take the regular, three-event APFT.

16.  Army Regulation 350-1 states that while Soldiers with temporary
physical profiles are precluded from attending military schools until the
temporary profile has been removed, Soldiers with permanent physical
profiles are eligible to attend appropriate courses and train within the
limits of their profiles.

17.  Army Regulation 635-40 states that the mere presence of an impairment
does not, in 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.  To ensure all Soldiers are
physically qualified to perform their duties in a reasonable manner,
medical retention qualification standards have been established in Army
Regulation 40-501.  These retention standards and guidelines should not be
interpreted to mean that possessing one or more of the listed conditions or
physical defects signifies automatic disability retirement or separation
from the Army.
18.  Army Regulation 40-501 states that gastritis, if severe and chronic
hypertrophic gastritis with repeated symptomatology and hospitalization,
confirmed by gastroscopic examination may be cause for referral to a
Medical Evaluation Board.  It notes that hernias with severe symptoms not
relieved by dietary or medical therapy, or recurrent bleeding in spite of
prescribed treatment may also be a basis for referral.

19.  Army Regulation 635-40 states that when a commander believes that a
Soldier of his or her command is unable to perform duties because of
physical disability, the commander will refer the Soldier to the
responsible medical treatment facility.  It also states that commanders of
medical treatment facilities who are treating Soldiers may also initiate
action to evaluate the Soldier’s physical ability to perform the duties.

20.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs to award compensation for disabilities which
were incurred in or aggravated by active military service.  However, an
award of a Department of Veterans Affairs rating does not establish error
or injustice in the basis for separation from the Army.  An Army disability
rating is intended to compensate an individual for interruption of a
military career after it has been determined that the individual suffers
from an impairment that disqualifies him or her from further military
service.  The Department of Veterans Affairs, which has neither the
authority, nor the responsibility for determining physical fitness for
military service, awards disability ratings to veterans for conditions that
it determines were incurred during military service and subsequently affect
the individual’s civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s argument that his military career was interrupted
because of his medical condition, which ultimately resulted in his award of
disability compensation by the Department of Veterans Affairs, is not
supported by the evidence available to the Board.

2.  The evidence which is available to the Board does not show that the
applicant was ever given a permanent physical profile and that only on two
occasions, as shown by his performance evaluation reports, did a temporary
profile preclude his taking an APFT.  There is no indication that the
applicant’s medical condition ever precluded his performance of his
military duties, which, as he has noted, were performed in an exceptionally
outstanding manner.

3.  In spite of the fact that the applicant may have been removed from the
BNCOC for failing to pass the APFT, his records indicate that he did pass
the APFT in December 1996, several months after his removal from BNCOC.
The applicant has provided no evidence that he ever sought to be reinstated
into a BNCOC class, or that he ever sought a permanent profile which may
have enable him to complete an alternate physical fitness test.

4.  The evidence available to the Board indicates that the applicant was
periodically treated for his intestinal problems.  However, apparently
there were no members of his chain of command, or any of the physicians
that provided him medical treatment, who believed that his condition was
such that it precluded performance of duty or was severe enough for
referral for disability processing.  The absence of such referral, or even
a permanent physical profile, suggests that in spite of his medical
problems he was able to perform his duties, including passing a regular
physical fitness test.

5.  The applicant’s belief that his military career was interrupted by his
medical condition is not supported by any evidence available to the Board.
The applicant would have had multiple opportunities to seek medical
assistance prior to and after reporting to BNCOC if his medical condition
warranted some sort of permanent profile precluding taking the regular
APFT.  He should not now be able to use that medical condition as
justification to excuse his failure of the APFT.  To do so would
essentially enable the applicant to know he was having problems which might
affected his performance, chose to ignore those problems, and then use
those problems as an excuse when things did not work out as he had hoped.

6.  The Board notes that the applicant’s 30 percent disability rating from
the Department of Veterans Affairs was not granted until 2003, nearly 4
years after his separation from active duty, and then only after reporting
that his medical condition had deteriorated to the point that it then
included ”difficulty swallowing, substernal chest and arm pain,
regurgitation, epigastric distress that results in loss of sleep and
fatigue,” conditions that were not reported on his Army medical treatment
documents.

7.  The fact that he is receiving disability compensation from the
Department of Veterans Affairs is not evidence of any error or injustice in
the Army’s basis for his separation; which was reaching his retention
control point.  The Department of Veterans Affairs, operating under its own
policies and regulations, assigns disability ratings as it sees fit.  Any
rating action by that agency does not compel the Army to modify its reason
or authority for separation.

8.  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.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 April 1998; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
24 April 2001.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  ___PM __  ___SP __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ______Melvin Meyer_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004180                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050329                                |
|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.                      |                                        |


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