IN THE CASE OF:	  

		BOARD DATE:	       6 August 2009

		DOCKET NUMBER:  AR20080009920 


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, in effect, that he be granted a 15-year letter and placed in the Retired Reserve.  

2.  The applicant states that the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) either overlooked or chose not to consider information regarding his claim of bi-polar disorder.  He goes on to state that his records are incomplete and he had provided numerous documents documenting his bi-polar condition.  He continues by stating that he is not medically qualified for duty in the U.S. Army Reserve (USAR) because of his bi-polar disorder which occurred on active duty on 19 June 1983 and continues to be present to this date.  He also states that he provided numerous physician fitness letters, pulmonary function test data, and DA Forms 7349 (Initial Medical Review – Annual Medical Certificate) and Standard Forms (SF) 507 (Clinical Record – Functional Capacity Certificate) to the MEB and they took no action on his case in its October 2006 meeting.  He concludes by stating that he should be granted a 15-year retirement based on his 17+ creditable years of service and his current condition.

3.  The applicant provides a copy of a DA Form 2139 (Military Pay Voucher) for the period of 25 June to 1 July 1983; a copy of a DA Form 2496 (Disposition Form), subject: Transfer to the Retired Reserve, Discharge or Request for Waiver for Medical Disqualification), dated 19 December 1983, notifying him of his medical disqualification and the options available to him; a copy of a medical statement, dated 27 February 1984, indicating that he had contracted a disease 

on 19 June 1983 in the line of duty and that he was entitled to pay and allowances from 25 June to 1 July 1983.  It also indicates that he had recovered sufficiently to perform normal military duties as of 2 July 1983.  He also provides the reverse side of a DA Form 4856-R (General Counseling Form), dated
28 August 1983; a copy of AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 7 June 2007; and a copy of a letter from the Human Resources Command - St. Louis (HRC-STL), dated 27 September 2006, correcting his retirement points.

4.  The applicant also provides a copy of an appeal of a Department of Veterans Affairs (VA) Rating Decision, dated 19 March 1997; a copy of a VA Rating Decision, dated 14 May 1997, granting him a disability rating of 10 percent (%); a copy of a Standard Form (SF) 507, dated 20 September 2006; copies of SFs 600 (Medical Record - Chronological Record of Medical Care); copies of two DA Forms 3349 (Physical Profile); a copy of a DA Form 7349, dated 1 April 2006; a copy of a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 May 2002; an SF 88 (Report of Medical Examination), dated 9 August 1999; a copy of a DA Form 7349, dated 2 November 2002; copies of DA Forms 7349, dated 1 November 2003, 2 October 2004, 1 April 2006, and 20 September 2006; and a copy of an SF 600, dated 22 May 2002, for a ring finger injury.

5.  The applicant also provides an SF 93 (Report of Medical History), dated      9 August 1999; a letter from a civilian physician from Towncrest Internal Medicine, L.L.P., dated 16 November 2004; a copy of Headquarters, 89th Regional Readiness Command (RRC), Wichita, KS, Orders 06-285-00110, dated 12 October 2006, discharging him from the USAR effective 12 October 2006; a copy of a "Bronchochallenge Report," dated 27 July 2004; a copy of a self-authored letter, dated 3 December 2004, indicating that he can adequately perform his duties as a Respiratory Specialist in the USAR; a copy of Headquarters, 89th RRC memorandum, subject: Instructions for Probationary Period Evaluation for [the applicant], dated 28 August 2003; page 3 of a DD Form 2766 (Adult Preventive and Chronic Care Flowsheet), undated; an SF 603 (Health Record – Dental), with services provided on 1 November 2003 and 2 October 2004; and an SF 601 (Health Record – Immunization Record).

6.  The applicant further provides a VA Form 5-3831a (Employee Health Record); a copy of his employee medical activity history and supporting documents; a copy of a letter to the applicant's congressional representative from G-1, Headquarters, USAR Command, dated 29 November 2006, regarding the applicant's eligibility for retirement from the USAR; a copy of a handwritten     self-authored letter from a major general, dated 7 March 1995; a copy of electronic mail (e-mail) traffic, dated 1 September 2006, from the applicant to officials at the G-1, 89th RRC; a copy of his Medical Disqualification Options Form, signed by the applicant, dated 19 July 2006; a copy of his notification for a VA hearing on 30 January 1996; and a copy of the VA Rating decision denying him service-connection for a nervous condition.   

CONSIDERATION OF EVIDENCE:

1.  The applicant's records, though somewhat incomplete, show that he enlisted in the Iowa Air National Guard (IAANG) on 13 July 1971 for a period of 6 years.  He served in the IAANG as a medical service specialist until he was honorably discharged on 10 October 1974.

2.  On 7 August 1976, he enlisted in the USAR for a period of 1 year.  He again enlisted in the USAR on 19 June 1980 for a period of 3 years and he remained in the USAR through a series of continuous reenlistments. 

3.  He enlisted in the Iowa Army National Guard (IAARNG) on 30 November 2000 for a period of 1 year and, on 27 August 2001, he again enlisted in the USAR for a period of 4 years, which made his expiration of term of service (ETS) 26 August 2005.

4.  The applicant's official records show that as early as 1988, while serving as a respiratory specialist in the USAR, the applicant was placed on the overweight program due to not meeting the body fat requirements for his height and weight.  He was 69 inches in height and weighed 199 pounds.

5.  In July 1995, the applicant applied to the VA for service-connected disability for a psychiatric disorder, specifically bi-polar disorder.  His request was denied and he submitted an appeal to that decision.  On 19 March 1997, he was granted a 10% service-connected disability rating from the VA, effective 22 March 1995.

6.  His DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report [NCOER]) ending in August 2002 shows that he did not meet body fat standards and that he was enrolled in the unit weight control program.  His height was 69 inches and his weight was 240 pounds.  His evaluation report ending in August 2003 shows that he was still overweight, that he was in the weight control program, and that his height was 69 inches and his weight was 245 pounds.

7.  On 28 August 2003, a memorandum was dispatched from the 89th RRC addressed to the applicant's unit commander.  The memorandum provided instructions for a probationary period evaluation of the applicant based on his permanent profile for a diagnosis of exercise-induced reactive airway.  The memorandum explained that a Military Occupational Specialty (MOS) Medical Retention Board (MMRB) had determined that the applicant would be placed on a 12-month probationary period for further evaluation of his ability to perform.  The memorandum also explained that the medical advisor had advised that the applicant had not been adequately evaluated with proper tests to make the diagnosis of asthma and/or reactive airway disease and further indicated that the applicant should be enrolled in the weight control program.  The commander was further advised that before the end of the probationary period, the applicant would obtain a physician's evaluation and statement with his current diagnosis and status and the commander would counsel the applicant on the Army weight standard and a proper weight loss program.  The commander would then refer the applicant back to the MMRB for final determination.  The effective date of the 12-month probationary period was on 28 August 2003 (ending on 27 August 2004).

8.  His NCOER ending in August 2004 shows that he was still in the weight control program with a weight of 245 pounds and that his profile did not interfere with his ability to accomplish his assigned duties.

9.  On 16 November 2004, a civilian physician dispatched a letter to the applicant's commander explaining that the applicant underwent a "methacholine challenge" which indicated he was borderline positive for asthma.  He also opined that clinically he did not believe the applicant had asthma and while the applicant could not run to meet the standard necessary for participation in the USAR, he believed that the applicant was able to meet the criteria for walking.

10.  On 3 December 2004, the applicant authored a letter explaining that per the MMRB memo, his physician felt that he did not have asthma and that he could perform his duties in the USAR adequately.  He also stated that he was presently participating in the Army Weight Control Program and he felt that with his           32 years of experience as a respiratory therapist he could adequately perform as a respiratory specialist in the USAR.

11.  His NCOER ending in August 2005 shows that he was still in the weight control program with a weight of 245 pounds and that his profile did not interfere with his ability to accomplish assignments.  His rater also indicated that the applicant was not showing progress in the weight control program and that he had not accepted the challenge to be fit.

12.  The results of the MMRB are not present in the available records; however, the records show that the applicant was honorably discharged from the USAR on 12 October 2006.  His discharge orders indicate that he was held past his normal discharge date through no fault of his own.

13.  On 29 November 2006, in response to an inquiry from the applicant's congressional representative, officials at the USAR Command at Fort McPherson, Georgia explained to the congressional representative that the applicant was discharged from military service due to the expiration of his term of service (ETS).  It was further explained that the applicant was placed on probation for 12 months by the MMRB with specific instructions on what information was to be submitted to the MMRB at the end of his probationary period to make a proper determination in his case; however, he failed to submit the documents as directed and he did not request an extension.  It was also noted that his discharge orders were delayed while waiting for him to submit the proper documentation and when he failed to provide the necessary documentation required to process a request for medical retirement, there was no basis to forward his case to an MEB/PEB for further evaluation.  Therefore, he was not eligible for medical retirement and was discharged accordingly.

14.  The applicant's AHRC Form 249-2-E shows that the applicant had 17 years, 3 months, and 8 days of qualifying years of service for retirement. 

15.  There is no indication in the available records to show that the applicant attempted to reenlist or that he was ever removed from the weight control program.

16.  On 3 October 2008, a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) which opines that it appears that the applicant was properly discharged from the USAR and that any actions to be resolved regarding his referral to an MEB/PEB would require action by the USAR before the USAPDA could review it. 

17.  On 7 October 2008, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant responded by email on 6 November 2008 to the effect that his case was referred to an MEB in 2006 and they took no action on his asthma condition, his 1984 Annual Training (AT) injury, his subsequent medical treatment, or his 10% service-connection issued by the VA in 1995.  He also states that he received a PEB in March 2003 and submitted all required items in January 2004.  He also states that he is going to request another MEB from the 89th RRC.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 may reasonably be expected to perform because of his or her office, rank, grade or rating.  

19.  Title 38, U.S. Code, sections 310 and 331, 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.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

20.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  However, the VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

21.  Title 10, U.S. Code, section 12731b, specifies that a member of the Selected Reserve who has completed at least 15 years but less than 20 years of service may be entitled to temporary special retirement qualification when they no longer meet the qualifications for membership in the Selected Reserve solely because the member is unfit because of a physical disability, not due to misconduct.

22.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U.S. Code, by adding section 12371b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b states that a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability pay, for the purpose of section 12371 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 years and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been issued a 15-year letter and placed in the Retired Reserve has been noted and appears to lack merit.

2.  The applicant's claim that the MEB/PEB ignored his claim of disability for      bi-polar disorder, a disability for which he has been rated by the VA as being 10% service-connected has also been noted and found to lack merit.

3.  While the Board has found no evidence to show that an MEB/PEB was convened to consider his conditions at the time, the available records do show that an MMRB was convened and a determination was made to place him on a 12-month probationary period that ended on or about 27 August 2004 for further evaluation of his ability to perform his duties.  The applicant was advised of what information he was to provide to the MMRB at the end of the probationary period and there is no evidence in the available records to show that he complied with those instructions.

4.  It is noted that in November and December 2004, the applicant and his physician submitted statements to the effect that the applicant did not have asthma and that he could perform his duties in the USAR.

5.  It is also noted that in 1997 the applicant was granted a 10% service-connected disability rating from the VA for bi-polar disorder, effective 22 March 1995.  However, he continued to serve in the USAR as a respiratory specialist and his evaluation reports fail to show that at any point during his service he was unable to perform his duties.

6.  Additionally, it is noted that as early as 1988 the applicant was placed on the overweight program and while his failure to meet Army weight standards did not affect his ability to perform his duties, there is no indication that the chain of command took any action to separate him from the service.

7.  However, the Army attempted to evaluate the applicant's condition to accurately evaluate his medical condition and he failed to provide the necessary information requested by the MMRB.  Furthermore, he indicated after the suspense date imposed by the MMRB that he could perform the duties of his MOS.

8.  Accordingly, the applicant was subsequently discharged due to the expiration of his term of service.

9.  Inasmuch as there is no evidence to show that a determination was made by appropriate authorities (MEB/PEB or his commander) that he was unable to perform his duties, he is ineligible to receive a 15-year letter.

10.  Therefore, absent evidence to show that an MEB/PEB was conducted as the applicant claims, and that the MEB/PEB did not properly consider the issues claimed by the applicant at the time, there appears to be no basis to grant his requested relief.

11.  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 submit evidence that would satisfy that 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)                                         AR20080009920



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ABCMR Record of Proceedings (cont)                                         AR20080009920



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