IN THE CASE OF:	  

		BOARD DATE:	        24 July 2008

		DOCKET NUMBER:  AR20080007086 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show he was medically discharged instead of honorably separated.

2.  The applicant states that he feels he should have received a medical discharge due to his tuberculosis (TB) during his military service.  He adds that he underwent 19 months of "non-medical treatment."  

3.  The applicant provided the following additional documentary evidence in support of his request: 

	a.  Letter, dated 19 July 2007, from the applicant’s Member of Congress.  

	b.  Letter, dated 16 July 2007, to his  Member of Congress.  

	c.  Letter, dated 13 July 2007, from the National Personnel Records Center. 

	d.  Standard Form 88 (Report of Medical Examination), dated 11 April 1963. 

	e.  Standard Form 601 (Immunization Record), dated on miscellaneous dates from 1963 to 1968.    

	f.  DD Form 735 (Health Record-Abstract of Service), dated on miscellaneous dates from 1964 to 1966.   

	g.  Several pages of Standard Form 600 (Health Record-Chronological Record of medical Care), from 1963 to 1967. 

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’s records show that he enlisted in the Regular Army for a period of 3 years on 1 August 1963.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 74E (ADPS Console Operator).  He was honorably discharged on 24 October 1965 for the purpose of immediate reenlistment and executed a 3-year reenlistment on 25 October 1965. 

3.  The applicant’s medical records show that in April 1965, he had a chest        X-Ray at Fort Ritchie, Maryland, due to suffering from repeated colds and malaise.  The X-Ray reportedly showed a left upper lobe cavity infiltrate; however, he was returned to duty with symptomatic treatment.

4.  The applicant’s records further show that he continued to have an intermittent dry cough with some mild left substernal pleuritic chest pain.  His next X-Ray was taken on 10 August 1966 during a routine physical examination.  Again, his 
X-Ray revealed a left upper lobe infiltrate.  

5.  On 1 November 1966, he had an upper respiratory infection and another chest X-Ray was taken, revealing a cavity left upper lobe lesion.

6.  The applicant was admitted to the U.S. Army Hospital, Okinawa, Japan, where he tested positive for TB.  He was placed on several medications which he tolerated well. 


7.  On 24 March 1967, the applicant was transferred from the U.S. Army Hospital, Okinawa, to Fitzsimmons General Hospital, Denver, Colorado, after being diagnosed with pulmonary TB.  He underwent an external spirometry on 31 March 1967 which showed evidence of mild restrictive disease with possible mild obstruction to flow.  He was treated with anti-TB therapy and showed good radiological response to treatment.  The military physician remarked that the applicant's "active" pulmonary TB was treated to "inactive" and accordingly, the military physician recommended the applicant’s return to duty and placement at a fixed installation with medical supervision for a period of 1 year.  The military physician further indicated that there was no disability for general service and that the applicant was considered able to perform sustained effort or technical skill over moderate periods.  

8.  On 22 January 1968, a Medical Evaluation Board (MEB) convened at Fort Meade, Maryland, and determined that the applicant had a temporary condition of inactive TB of lung, left upper lobe.  The MEB further found the applicant fit for duty as evidenced by a medical examination and a review of his health records, and recommended reexamination in January 1969.  

9.  On 15 March 1968, the applicant was issued a temporary physical profile for his inactive TB.  The military physician remarked that the applicant was medically qualified for duty with limitations as evidenced by a medical examination, and recommended the applicant return to duty.

10.  On 25 June 1968, the applicant underwent a physical examination and was determined qualified for separation. 

11.  On 6 August 1968, the applicant requested early separation from the Army to attend school, in accordance with chapter 5 of Army Regulation 635-200 (Personnel Separations).  His request was approved on 21 August 1968.

12.  On 26 August 1968, the military physician noted on the applicant’s DA Form 1811 (Physical and Mental Status on Release from Active Service) that the applicant’s condition was such that he was considered qualified for separation or for reenlistment without reexamination provided he reenlisted within 90 days.  

13.  On 9 September 1968, the applicant certified that he underwent a separation medical examination and that there was no change in his medical condition.  




14.  He was honorably separated and transferred to the U.S. Army Reserve Control Group (Standby Reserve) on 9 September 1968.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 5 years, 1 month, and 9 days of creditable military service. 

15.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

17.  Paragraph 3-1 provides 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

18.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that 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.  The regulation also states that, 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 the Soldier is fit. 
19.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be changed to show he was medically discharged was carefully considered.  However, there is insufficient evidence to show he should have been medically discharged. 

2.  The applicant’s records show that he was ill during his military service.  He was diagnosed with pulmonary TB and that he was treated in Okinawa, Japan, as well as at Fitzsimmons Hospital, Colorado, and Fort Meade, Maryland, with medications.  Furthermore, he underwent an MEB that determined his condition was temporary and that he was qualified for duty, at the time.  The MEB further recommended his return to duty. 

3.  There is no evidence in the available records and the applicant did not provide documentary evidence that shows his condition was of a permanent nature, that he was issued a permanent profile, or that he underwent a PEB.  The Army must find that a Soldier is physically unfit to reasonably perform their duties and the Soldier must be assigned an appropriate disability rating before they can be medically retired or separated.  The applicant in this case was honorably separated based on his own voluntary request to pursue his education.

4.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  The DVA evaluates veterans throughout their lifetime, granting or adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.
5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.   The applicant has not shown error, injustice, or inequity for the relief he requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



															XXX
      _______ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007086



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007086



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1