RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 January 2008
	DOCKET NUMBER:  AR20070010504 


	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.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Mr. Dean A. Camarella

Member

Mr. Rodney E. Barber

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 retirement.

2.  The applicant states that his medical condition was diagnosed after he had been in the Army for over 13 years.  He met the “eight year rule.”  Not all of his diagnoses and surgical procedures were presented to the Physical Evaluation Board (PEB).  He had a splenectomy in 1985 after a Sickle Cell Crisis was aggravated while performing a physical fitness test; he had prolonged episodes of priapism as a result of the splenectomy which required numerous surgeries; he had paralysis of the ulnar nerve in his left arm that required surgery in 1989 (sic); he had left knee surgery in 1983; his gallbladder was removed in 1986; and he had lumbosacral or cervical strain.  He was found fit for duty by a medical board.  He feels he should have been medically retired.

3.  The applicant provides a Veterans Administration (VA) Rating Decision Continuation Sheet, dated 28 September 1992; and an undated VA printout showing updated ratings.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 6 June 1978.  He was promoted to Staff Sergeant, E-6 on 8 June 1985 in military occupational specialty 91C (Practical Nurse.)

3.  Around May 1991, the applicant was referred to the Physical Disability Processing System by his unit commander and the Chief, Primary Care because of a history of Sickle Cell disease requiring recurrent phlebotomy and because he was not felt to be worldwide deployable.  The Narrative Summary noted that the applicant had a splenectomy around 1985; that he developed gallstones in March 1986 that required a cholecystectomy (removal of the gallbladder); that he developed his first episode of priapism in July 1986 and since then had seven other episodes, five of which required hospitalization; that he had a surgical history of having an ulnar nerve release in December 1988; and that he had a left patellar fracture in April 1983 with subsequent removal of patellar fragments.  He was diagnosed with hemoglobin Sickle Cell Disease and hemolytic anemia secondary to hemoglobin Sickle Cell Disease.

4.  On 26 June 1991, the applicant was given a temporary physical provile due to Hemoglobin Sickle Cell Disease.  He was given assignment limitations of no assignment to isolated areas where definitive medical care is not available or where environmental extremes predispose to dehydration.  

5.  In a memorandum dated 8 August 1991, the applicant’s supervisor noted that the applicant was a wardmaster when the supervisor arrived in June 1991.  The applicant always performed his duties in a professional and conscientious manner.  He was resourceful and enthusiastic and was diligent in the performance of all tasks assigned to him.  

6.  On 9 August 1991, a Medical Evaluation Board (MEB) referred the applicant to a PEB due to Hemoglobin Sickle Cell Disease and hemolytic anemia secondary to Hemoglobin Sickle Cell Disease.  Both diagnoses were determined to have been incurred while the applicant was entitled to base pay and not EPTS (existed prior to service).  On 27 September 1991, the applicant agreed with the MEB’s findings and recommendation.  

7.  On 15 October 1991, an informal PEB found the applicant to be fit for duty.  He apparently initially nonconcurred with the findings of the informal PEB and requested a formal PEB.  On 9 January 1992, he withdrew his request for a formal board.  

8.  The applicant’s noncommissioned officer evaluation report (NCOER) for the period ending March 1992, which he signed on 25 March 1992, shows that he was rated as “success” in all areas of NCO responsibilities and that his profile did not interfere with his duty performance.

9.  On 23 April 1992, the applicant was honorably discharged upon his expiration term of service (ETS).  He had completed 13 years, 10 months, and 18 days of creditable active service. 

10.  On 28 September 1992, the VA awarded the applicant an 80 percent disability rating for Sickle Cell Anemia with recurrent priapism, postoperative    (60 percent); splenectomy (30 percent); left knee fracture, postoperative          (10 percent); cubital tunnel syndrome, left, postoperative with tendonitis           (10 percent); chronic lumbosacral sprain (zero percent); and cholecystectomy (zero percent).

11.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  In pertinent part, it 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.  

12.  Army Regulation 635-40 also states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  

13.  Title 10, U. S. Code, section 1207a states that, in the case of a member with at least 8 years of active service, who would be eligible for disability separation but for the fact that the member’s disability is determined to have been incurred before the member became entitled to basic pay in the member’s current period of active duty, the disability shall be deemed to have been incurred while the member was entitled to basic pay ad shall be so considered for the purposes of determining whether the disability was incurred in the line of duty.

14.  The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  

15.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  
16.  Army Regulation 40-501 governs the medical fitness standards enlistment and appointment (chapter 2) and for retention and separation (chapter 3).  Neither paragraph 3-17 (genitourinary system) nor paragraph 3-18 (genitourinary and gynecological surgery) list priapism or surgery to correct priapism as a cause for referral to an MEB.  Paragraph 3-6 (gastrointestinal and abdominal surgery) does not list cholecystectomy or splenectomy as a cause for referral to an MEB (although splenectomy (except when accomplished for certain listed reasons) and sequelae of cholecystectomy are listed as a cause for rejection for enlistment).  

DISCUSSION AND CONCLUSIONS:

1.  The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  The VA 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 by the VA even though the Army determined the condition was not unfitting.

2.  The applicant’s Narrative Summary listed all of the conditions noted by the applicant.  The MEB took into account the eight year rule when it determined that his Hemoglobin Sickle Cell Disease and hemolytic anemia secondary to Hemoglobin Sickle Cell Disease were incurred while he was entitled to base pay and were not EPTS.   

3.  The evidence of record shows that the applicant was fit for duty at the time of his separation.  His supervisor noted that the applicant always performed his duties in a professional and conscientious manner.  The applicant’s NCOER for the period ending March 1992, which he signed on 25 March 1992 and did not contest, shows that he was rated as “success” in all areas of NCO responsibilities and that his profile did not interfere with his duty performance.  He was then honorably discharged on 23 April 1992 upon his ETS.

4.  Since the evidence of record shows that the applicant was fit for duty at the time of his separation, there is insufficient evidence that would warrant granting the relief requested.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__amc___  __dac___  __reb___  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.




__Ann M. Campbell_____
          CHAIRPERSON




INDEX

CASE ID
AR20070010504
SUFFIX

RECON

DATE BOARDED
20080103
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
108.00
2.

3.

4.

5.

6.