RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060014631 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. David K. Haasenritter

Member

Mr. Edward E. Montgomery

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, in effect, reconsideration for correction of his medical discharge to a medical retirement with an overall disability rating of 60 percent; 30 percent disability rating for his knee and 30 percent disability for his asthma.

2.  The applicant states, in effect, that he was referred for a pulmonary function test on 29 March 2004 with a test result of 56 percent.  He says that Table B-2, Army Regulation 635-40 provides that a test result of 55-65 percent is to be considered moderate to moderately severe and should have been evaluated by the Physical Evaluation Board (PEB) and given a rating of 30 percent disabling.

3.  The applicant further states that the United States Army Physical Disability Agency (USAPDA) did not follow proper rebuttal procedures by not forwarding his non-concurrence to the United States Army Physical Disability Appeal Board (APDAB).  He says that had his case been referred to the APDAB, it would have found that the PDA's action to reduce the disability rating for the left knee by 10 percent for an arthritic condition was erroneous.

4.  The applicant further states that his primary care manager decided that he would not treat him for the asthma condition or refer him to a (Medical Evaluation Board (MEB) because "it may or may not continue if he is assigned to a different location". 

5.  The applicant states that he believes the PEB and the PDA intentionally made several mistakes in evaluating his case, resulting in an injustice by the medical community to circumvent providing him with medical benefits.

6.  The applicant provides an undated copy of his asthma diagnosis, extracts of Army Regulation 635-40, Physical Evaluation Board Rebuttal, and a copy of his Army Achievement Medal Certificate dated 25 May 2006.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050013420, on 8 June 2006.

2.  On 25 January 2005, the applicant submitted an appeal, disagreeing with the MEB findings.  His appeal addresses the severity of the injury to his left knee but does not mention anything about having an asthmatic condition.
3.  On 8 February 2005, the applicant submitted an appeal to the informal PEB findings, addressing the injuries to his left knee.  He does not mention anything about his asthmatic condition.

4.  On 19 April 2005, a formal PEB upheld the original PEB findings.  The applicant appealed this decision but does not mention anything about his asthmatic condition.

5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) provides, in pertinent part, that the APDAB will determine if the Soldier received a full and fair hearing; that the evaluation proceedings conformed to current laws and governing regulations; that the findings and recommendations of the PEB, as changed or modified by the commanding General, USAPDA, are supported by the evidence.  It further provides that the APDAB will take one of the following actions and then forward the case to the Commanding General, Human Resources Command: 1. Concur with the decision of the Commanding General, USAPDA; 2. Concur with the recommendations of the PEB; 3. Adopt the recommendations of the minority member of the PEB when PEB recommendations were not unanimous;
4. Concur with the requests contained in the rebuttal submitted by the Soldier being evaluated; and 5. Specify new findings and recommendations or other proper actions.  It further provides that if the Soldier nonconcurrs and submits a statement of rebuttal explaining their reasons for disagreement, and the consideration of the rebuttal does not result in a change to the revised findings, USAPDA will forward the case to the APDAB for review unless the Soldier fails to submit an election within the allotted time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should receive a disability rating of
30 percent for his asthma is not supported by the available evidence.  His pulmonary function test was on 29 March 2004.  There is no evidence showing that his asthmatic condition was the same at the time of his MEB in January 2005, or his PEB's in February and May 2005.  His primary care provider stated that his condition could change with location and had decided not to refer this condition to the MEB.  There is no evidence showing that the applicant ever rebutted this decision.  Consequently, the MEB never evaluated his asthmatic condition.  

2.  The PEB (informal and formal) only considered the applicant's knee injury.  The applicant did not address his asthmatic condition in his rebuttals to the PEB's findings.
3.  The applicant did submit a rebuttal to the PDA which resulted in no changes to the PDA findings.  Therefore, the PDA should have forwarded the case to the APDAB.  However, there is no substantive evidence showing that the APDAB would have nonconcurred with the unanimous findings of the MEB, PEB, and PDA.

4.  While an administrative error may have been made, there is no evidence or argument showing that they were the cause of any injustice, or that the outcome of his case would have been any different had the error not occurred. 

5.  In view of the above, the applicant's request should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PMS__  __EEM__  __DKH __  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 to amend the decision of the ABCMR set forth in Docket Number AR20050013420, dated 8 June 2006.




__       Paul M. Smith________
          CHAIRPERSON




INDEX

CASE ID
AR20060014631
SUFFIX

RECON
 
DATE BOARDED
20070501 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
108.0000.0000
2.

3.

4.

5.

6.