IN THE CASE OF:	  

		BOARD DATE:	  31 July 2008

		DOCKET NUMBER:  AR20080009131 


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 request, in effect, that his 2 March 2002 discharge, by reason of physical disability with severance pay, be voided and that his record be corrected to show that he was instead medically retired on that same date.

2.  The applicant states, in effect, that he is currently chronically ill and facing mortality from Nuclear Biological and Chemical Weapons exposure and poisoning.  He claims that his medical doctors informed him that he received a terminal dose of poisons and that he needs to prepare to die.  However, as a last ditch effort to save his life, he was overdosed on 6 large IV bags of antibiotics.  Only by the grace of God and the perseverance of Army doctor to work against the Army's orders to cease life sustaining medical treatment did he survive.  He also claims that his medical records were classified and sealed and not made available to the Army Medical Board for rating consideration and although his medical conditions had not yet stabilized, he was discharged with only a 20% disability rating and was denied medical care at the Department of Veterans Affair (VA).

3.  The applicant also states that with the assistance of the Senate Majority Leader, who assisted him in obtaining his classified medical records and forwarding them to a doctor at the VA compensation examination program, he received a 100% disability rating from the VA.  He further states that based on the fact that he was incorrectly rated by the Army, he believes that his discharge by reason of physical disability should be voided and that he should be granted a medical retirement with a 100% disability rating.

4.  The applicant provides the following documents in support of his application:  Self-Authored Statement; United States Senate Letter Dated 12 May 2008; Separation Document (DD Form 214); Statements in Support of Claim (VA Form 21-4138); Correction to DD Form 214 (DD Form 215); Request Pertaining to Military Records (SF 180); Consent for Release Information; PA Congressional Control Sheet; and Fax Cover Sheets.

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 record shows that he enlisted in the Regular Army and entered active duty on 1 March 1996.  It also shows that he held and served in military occupational specialty (MOS) 95B (Military Police) and that the highest grade he attained while on active duty was specialist (SPC).

3.  On 26 June 2001, a Medical Evaluation Board (MEB) convened at Tripler Army Medical Center, Hawaii, to consider the applicant's case.  The MEB found the applicant unfit for continued duty due to his Chronic Retropatellar left knee pain syndrome, Hypertensive Vascular Disease, Hypercholesterolemia, Arthritis, Prurigo Nodularis, Lichen Simplex Chronicus, Bee Sting Anaphylaxis, Allergic Rhinitis Chronic, Bilateral elbow Epicondylitis, Bursitis Right Hip, Adjustment Disorder, and Fatty Liver.

4.  On 10 July 2001, the applicant non-concurred with the MEB findings and submitted his appeal in which he requested additional medical conditions be included in the MEB narrative for his Johnston Island hazardous duty exposure illness/Gulf War type syndrome.  

5.  On 2 August 2001, after consideration of the applicant's appeal the MEB approving authority denied the applicant's appeal request and approved the MEB findings and recommendations.

6.  On 6 November 2001, the applicant’s case was evaluated by a Physical Evaluation Board (PEB) which convened at Fort Lewis, Washington.  The PEB found that the applicant was physically unfit and recommended a disability rating of 0% for his Retropatellar pain syndrome, left, chronic.  The PEB determined the applicant's other 11 diagnosed conditions were not unfitting and as a result were not ratable conditions.

7.  On 13 November 2001, the applicant non-concurred to the PEB findings and demanded a formal hearing with personal appearance.  

8.  On 13 December 2001, the applicant's case was evaluated by a formal PEB, which convened at Washington, D.C.  The Formal PEB found the applicant was physically unfit and recommended a disability rating of 10% for his undifferentiated somatoform disorder, 10% for his Prurigo nodularis/lichen simplex chronicus, and 0% for his Retropatellar pain syndrome.  The PEB recommended the applicant be separated with severance pay with a combined rating of 20%.

9.  On 28 December 2001, the applicant non-concurred with the formal PEB findings and submitted an appeal.  

10.  On 8 January 2002, the PEB approving authority after careful consideration and review of the applicant's appeal and other documents submitted denied the applicant's request and adhered to the original findings and recommendations of the formal hearing.

11.  On 3 March 2002, the applicant was honorably discharged under the provisions of paragraph 4-24b (3), Army Regulation 635-40, by reason of physical disability with severance pay.  The DD Form 214 he was issued confirms he completed a total of 6 years and 2 months of active military service.

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, 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 their office, grade, rank, or rating.

13.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities.  It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable. 

14.  Title 38, United States Code, sections 1110 and 1131, permits the Department of Veterans Affairs (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.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not properly evaluated and rated for all of his disabilities, which would have entitled him to be permanently retired, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation 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.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Any non-ratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable


3.  The evidence of record confirms that the PEB determined that only the applicant's undifferentiated somatoform disorder and his Prurigo nodularis/lichen simplex chronicus diagnosis were unfitting and his disability rating was based on these conditions alone.  Although the MEB and PEB recognized the applicant suffered from other medical conditions, the PEB determined these conditions were not unfitting and therefore were not ratable.  

4.  Further, the applicant is advised that VA may award compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  It can also evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

5.  The evidence of record also shows that the applicant's PDES processing was accomplished in accordance with the applicable law and regulation.  All requirements of law and regulation were met and his rights were fully protected throughout his disability processing.  

6.  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 has failed to satisfy this requirement.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ___x____  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.




      _______ x_   _______   ___
               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)                                         AR20080009131



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ABCMR Record of Proceedings (cont)                                         AR20080009131



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