RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 January 2006
      DOCKET NUMBER:  AR20050007076


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 separation be changed to a medical
discharge.

2.  The applicant states that, during his 2002 deployment to Kosovo, his
tent mates noticed he would stop breathing as he slept and would wake up
many times at night flailing his arms.  Upon his redeployment, he was
scheduled for a sleep study, but the earliest appointment he could get was
6 months out.  His unit received orders to deploy to Iraq one month before
his sleep study was scheduled and would not let him stay back for the
study.  His expiration term of service (ETS) came up and he was fortunate
enough to leave Iraq after six months.  One month after his ETS he was
officially diagnosed with severe obstructive sleep apnea and he is
currently receiving Department of Veterans Affairs (DVA) benefits.  He
suffered with this condition for most of his enlistment and should have
been allowed a medical discharge.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); deployment orders dated 1 November 2000 with
an attached personnel roster; a Chronological Record of Medical Care dated
9 September 2002; a Patient Appointments printout dated 14 June 2003;
deployment orders dated 16 April 2003; a memorandum for record dated 25
August 2003; a memorandum dated 1 September 2003; a DD Form 2807-1 (Report
of Medical History); separation orders dated 13 August 2003; sleep study
results from Methodist Hospital; and a DVA Rating Decision dated 9 June
2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 October 1998.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 98G (Voice Interceptor at the time).

2.  On or about 1 November 2000, the applicant deployed, with his unit, to
Kosovo in support of Operation Joint Guardian.  It cannot be determined
when he returned.

3.  On 9 September 2002, the applicant was diagnosed with a sleep disorder.
  He was scheduled to take a pulmonary functions test on 16 June 2003.  On
or about 26 April 2003, he deployed to Kuwait in support of Operation
Enduring Freedom.  On 10 May 2003, he deployed to the Central Command area
of responsibility in support of Operation Iraqi Freedom.  He left the
theater on or about 16 September 2003.

4.  On 20 December 2003, the applicant was honorably released from active
duty after completing 5 years, 2 months, and 13 days of creditable active
service.  His DD Form 214 does not show his deployments or all his awards.

5.  On 7 January 2004, the applicant was diagnosed with severe obstructive
sleep apnea.

6.  On 9 June 2004, the DVA awarded the applicant a 50 percent disability
rating for obstructive sleep apnea, a 10 percent disability rating for
diabetes mellitus type II, a zero percent disability rating for low back
strain, and a zero percent rating for retinal detachment.  The Rating
Decision shows the applicant was prescribed a CPAP (continuous positive
airway pressure) machine to treat his sleep apnea.

7.  Army Regulation 635-40 governs the evaluation for physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  It states that the mere presence of 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, or rank.

8.  Army Regulation 635-40 states disability compensation is not an
entitlement acquired by reason of service-incurred illness or injury;
rather, it is provided to Soldiers whose service is interrupted and they
can no longer continue to reasonably perform because of a physical
disability incurred or aggravated in service.  When a Soldier is being
processed for separation or retirement for reasons other than physical
disability, continued performance of assigned duty commensurate with his or
her rank or grade until the Soldier is scheduled for separation or
retirement, creates a presumption that a Soldier is fit.  Application of
the rule does not mandate a finding of fit.  The presumption is rebuttable
and is overcome when the preponderance of evidence establishes the Soldier
was physically unable to perform adequately the duties of his or her
office, grade, or rank.

9.  Army Regulation 40-501 governs medical fitness standards for
procurement, retention, and separation.  Paragraph 3-41c states obstructive
sleep apnea or sleep-disordered breathing that causes daytime
hypersomnolence or snoring that interferes with the sleep of others and
that cannot be corrected with medical therapy, surgery, or oral prosthesis
is a cause for referral to a medical evaluation board (MEB).

10.  Title 38, U. S. Code, sections 1110 and 1131, permits the DVA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.  The DVA, however, is not required by law to
determine medical unfitness for further military service.

11.  Until certain provisions of the law were changed in fiscal year 2004,
a common misconception was that veterans could receive both a military
retirement for physical unfitness and a DVA disability pension.  Under the
law prior to 2004, a veteran could only be compensated once for a
disability.  If a veteran was receiving a DVA disability pension and the
Board corrected the records to show the veteran was retired for physical
unfitness, the veteran would have had to have chosen between the DVA
pension and military retirement.  The new law does not apply to disability
retirees with less than 20 years of service and retirees who have combined
their military time and civil service time to qualify for a civil service
retirement.

DISCUSSION AND CONCLUSIONS:

1.  The rating action by the DVA does not necessarily demonstrate an error
or injustice on the part of the Army.  The DVA, operating under its own
policies and regulations, assigns disability ratings as it sees fit.  The
DVA 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.  Consequently, due to the two concepts involved
(i.e., the more stringent standard by which a Soldier is determined not to
be medically fit for duty versus the standard by which a civilian would be
determined to be socially or industrially impaired), an individual’s
medical condition may be rated as disabling by the DVA even though the Army
found the individual to be fit for duty.

2.  It is acknowledged the applicant's snoring was noticed by his tent
mates in Kosovo and that he was diagnosed with severe obstructive sleep
apnea shortly after he separated.  It is also noted that he was prescribed
a CPAP machine to treat his sleep apnea.

3.  Referral to an MEB for sleep apnea requires several conditions – that
the condition causes daytime hypersomnolence or snoring that interferes
with the sleep of others and it cannot be corrected with medical therapy,
surgery, or oral prosthesis.  The presumption of fitness is rebuttable;
however, it can be overcome only when the preponderance of evidence
establishes the Soldier was physically unable to perform adequately the
duties of his or her office, grade or rank.


4.  The applicant has not provided sufficient evidence to show the CPAP
machine does not resolve his sleep apnea condition nor has he provided
sufficient evidence to show he was physically unable to perform his duties
while he was in the Army.

5.  The applicant's DD Form 214 contains several errors concerning his
deployments and awards that are unrelated to his current request.  Since
they are unrelated, the Board cannot act to correct those errors at this
time.  However, the applicant may submit a new application requesting
correction of those errors. If he does so, he should provide the exact
dates of his deployment (with supporting evidence, if available) and verify
if he served in Operation Enduring Freedom.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __reb___  __rmn___  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007076                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060112                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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