IN THE CASE OF:	

		BOARD DATE:	 10 March 2009 

		DOCKET NUMBER:  AR20080016405 


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 that his disability rating be changed from 20 percent to 40 percent and, as a result, his discharge with severance pay be changed to a medical retirement.

2.  The applicant chronicles the events leading to his diagnosis of diabetes and of what he believes to be substandard medical treatment for that condition.  He states that he went from a military policeman in relatively good shape to a diabetic requiring insulin injections and restricted diet, with vision problems, peripheral neuropathy, and diabetic retinopathy.  He concludes that he believes that he should have been placed on the Retired List for physical unfitness, rated at 40 percent disabled.

3.  The applicant provides lab test results, two statements from people associated with him in his civilian occupation, his Medical Evaluation Board (MEBD) and Physical Evaluation Board (PEB), and his Department of Veterans Affairs (VA) rating decision.  

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 military records show that he enlisted in the Regular Army on 12 July 1996, was trained and awarded military occupational specialty (MOS) 31B (military police) and later MOS 19K (M1 armor crewman), and was promoted to pay grade E-5.

3.  On 28 January 2003, the applicant was given physical profile limitations in that he could participate in light physical training.  

4.  The applicant was given a Noncommissioned Officer Evaluation Report (NCOER) for the period May 2002 to March 2003.  The evaluation was an above average report, with his rater rating him "Among the Best," the best rating in a three-field rating, and his senior rater rated him as a "1" in both Overall performance and Overall potential for promotion and/or service in positions of greater responsibility.  This evaluation shows that the applicant passed the Army Physical Fitness Test (APFT) in November 2002.

5.  On 21 August 2003, an MEBD convened and determined that the applicant was medically disqualified due to Type II Insulin Dependent Diabetes Mellitus.  The applicant indicated at that time that he desired to continue on active duty and did not agree with the MEBD's findings and recommendation.  The hospital's deputy commander considered the applicant's appeal and confirmed the original findings and recommendation.  The MEBD forwarded the applicant's case to the PEB for consideration.

6  On 19 September 2003, an informal PEB convened and determined that the applicant was physically unfit due to Type II Insulin Dependent Diabetes Mellitus, requiring insulin and restricted diet.  The PEB recommended that the applicant be discharged with severance pay, rated at 20 percent disabled.  The applicant did not concur and demanded a formal hearing.  

7.  There is no record of a formal hearing in the applicant's case.  However, on 7 December 2003, the applicant was honorably discharged due to physical unfitness and awarded $28,518 in severance pay.

8.  On 9 February 2004, the VA rated the applicant 40 percent disabled due to Type II Insulin Dependent Diabetes Mellitus.  In its decision, the VA stated that an evaluation of 40 percent is assigned when insulin, restricted diet, and regulation of activities are required.  The VA used the applicant's 3-day hospitalization in 2003 and the fact that he was unable to perform military duties as justification to assign him a 40 percent disability rating for this condition.

9.  The Veterans Administration Schedule for Rating Disabilities (VASRD), paragraph 7913, Diabetes Mellitus, states that Diabetes Mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet is rated at 20 
percent disabling.  Diabetes Mellitus requiring insulin, restricted diet, and regulation of activities is rated at 40 percent disabling.

10.  In the processing of this case an advisory opinion was obtained from the Physical Disability Agency (PDA).  The PDA stated that the applicant's physical profile only related to meal and medical care access, and did not preclude any exercise activities or physical training testing.  The PDA continues that the PEB did not find that the applicant had any significant restrictions on his military activities and none on normal everyday physical activities.  The PDA adds that the applicant's commander's performance comments related only to the applicant's difficulties concerning non-deployability due to insulin requirements.  The PDA concludes that the applicant has not submitted any evidence on how or why the PEB's findings and recommendation were not correct, and that subsequent VA ratings are not evidence of MEBD/PEB error.  The PDA recommended no change to the applicant's military records.

11.  The applicant was provided a copy of the advisory opinion and responded that he believes that what he perceives to be the cause of his diabetes (Anthrax vaccinations) is a good argument in his favor, and that the fact that he is a Type I diabetic has led to the quick destruction of his pancreas.  He continues by explaining his physical limitations due to his diabetes, and how those limitations had restricted his activities while in the military and has restricted his advancement at his civilian job.  The applicant believes that the problem is that his physical profile was inadvertently not updated with more severe restrictions, and that omission should not be allowed to prevent him from getting a proper disability rating.  The applicant then asks why the rating assigned to him by the Army is so different from the rating assigned to him by the VA.

DISCUSSION AND CONCLUSIONS:

1.  What appears to be the issue in this case is the interpretation of the term "regulation of activities" as used in the VASRD, paragraph 7913.  The interpretation of this term is pivotal on whether the applicant was correctly assigned a disability rating of 20 percent.

2.  In this regard, the applicant only submitted one physical profile and that only stated that he could participate in light physical training.  The PEB did not find that the applicant had any notable regulation of activities, and it appears the applicant accepted that finding by waiving his right to a formal hearing of his case.  

3.  While the applicant has stated that he had significant physical limitations while he was on active duty, he did not submit any evidence to support his contention.  To the contrary, all evidence shows that the applicant did not have any significant regulation of activities while he was on active duty.  This includes the NCOER he was given after he was given his physical profile for his diabetes.

4.  The VA ruled that the applicant's diabetes did require regulation of activities, but based that primarily on the fact that the Army found the applicant to be physically unfit to perform his military duties.  Since the Army's finding of unfitness was based primarily on the applicant's non-deployability, the VA's rating decision was based on that non-deployability.  The non-deployability was based on the applicant's need for specialized meals and access to medical care.  The Army did not believe that non-deployability based on meal and medical care access was a regulation of activity as defined in the VASRD, paragraph 7913.  The PEB's logic in making its decision appears to be sound and there is no reason to change it.

5.  It is regrettable if the applicant's medical condition has worsened since his discharge.  However, the VA is empowered to adjust a Veteran's disability rating throughout the Veteran's life.  As such, the VA is the appropriate Agency to contact to request a higher disability rating if the applicant's medical condition has worsened since his discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080016405



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016405



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1