IN THE CASE OF:	  

		BOARD DATE:	       12 March 2009

		DOCKET NUMBER:  AR20080018270 


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 reconsideration of his earlier request that his separation be changed to a medical retirement.

2.  The applicant states that he believes the evidence was not justly considered and that he is submitting more evidence. 

3.  The applicant provides an updated Department of Veterans Affairs (VA) Rating Decision Continuation Sheet, dated 1 December 2008, and copies of his "complete" chronological record of medical care, test results, referrals, consults, reports, and various medical documentation, dated on miscellaneous dates throughout and/or after his military service, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070010504 on 3 January 2008.

2.  The applicant submitted an updated VA Rating Decision Continuation Sheet, dated 1 December 2008, and copies of his "complete" chronological record of medical care, test results, referrals, consults, reports, and various medical documentation, dated on miscellaneous dates throughout and/or after his military service, some of which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  The applicant’s records show he initially enlisted in the Regular Army on 6 June 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91C (Practical Nurse).  His records also show he executed several reenlistments in the Regular Army and attained the rank/grade of staff sergeant/E-6.

4.  The applicant’s records also show he served in various staff and leadership positions within the continental United States and overseas, including service in Germany from February 1979 to May 1981 and Hawaii from August 1985 to June 1990.

5.  On 23 May 1991, the applicant underwent a physical examination at Fort Bliss, TX.  He was diagnosed as having hemoglobin sickle cell disease and hemolytic anemia secondary to his hemoglobin sickle cell disease.  In his narrative summary, the attending physician indicated that the applicant had a splenectomy around 1985; that he developed gallstones in March 1986 that required a removal of his gallbladder (cholecystectomy); and that he developed his first episode of priapism (persistent, painful erection – half of all adults with sickle cell disease develop priapism) in July 1986.  Since then he 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.  The attending physician recommended the applicant’s referral to a medical evaluation board (MEBD).

6.  On 26 June 1991, the applicant was issued a temporary physical profile for hemoglobin sickle cell disease.  The profiling officer indicated that the applicant was not worldwide deployable.  Additionally, the applicant was given assignment limitations of no assignment to isolated areas where definitive medical care was not available or where environmental extremes predisposed him to dehydration.

7.  On 9 August 1991, an MEBD convened at Fort Sam Houston, TX, and after consideration of the applicant’s clinical records, laboratory findings, and physical examinations, it determined that the applicant’s medical conditions of hemoglobin sickle cell disease and hemolytic anemia secondary to hemoglobin sickle cell disease warranted a recommended referral to a physical evaluation board (PEB). Both diagnoses were determined to have been incurred while the applicant was entitled to base pay and not to have existed prior to service.  On 27 September 1991, the applicant agreed with the MEBD’s findings and recommendation and indicated that he did not desire to continue on active duty.  
8.  On 15 October 1991, an informal PEB convened at Fort Sam Houston, TX.  Based on a review of the objective medical and personnel evidence of record, and considering the physical requirements for reasonable performance of duties required by the applicant’s grade and specialty, the PEB found the applicant to be fit for duty.  The PEB further indicated that although the applicant was not worldwide deployable, worldwide deployability could not be used as the sole basis for a finding of unfitness.

9.  On 31 October 1991, the applicant was counseled by the PEB liaison officer regarding his rights, appeal process, election options, guidelines for submitting a rebuttal, and right to a hearing.  He appears to have initially elected not to concur with the findings of the informal PEB and appears to have requested a formal PEB.  However, on 9 January 1992, he submitted a written memorandum electing withdrawal of his request for a formal board and waived his right to a formal hearing.  He further indicated that he did not concur with the informal findings of the PEB, dated 15 October 1991; but, there is no indication in his records that he submitted a rebuttal.

10.  On 28 January 1992, by memorandum, the Acting Chief of the Physical Disability Branch, U.S. Total Army Personnel Command (now known as the Human Resources Command or HRC), Alexandria, VA, approved the findings of the 15 October 1991 PEB and indicated that the applicant was found fit for military service.

11.  There is no indication in the applicant’s records that he reenlisted subsequent to the PEB’s approved finding of fit for duty.  Accordingly, on 23 April 1992, the applicant was honorably discharged upon his expiration term of service (ETS).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he had completed 13 years, 10 months, and 18 days of creditable active service.

12.  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).

13.  The applicant submitted a copy of an updated VA rating, dated 12 December 2008, that shows he is eligible for 50 percent to 100 percent service-connected disability.

14.  The applicant submitted copies of his "complete" chronological record of medical care, test results, referrals, consults, reports, and various medical documents, dated on miscellaneous dates throughout and/or after his military service, most of which had already been considered by the MEBD and the PEB.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 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.

16.  Army Regulation 40-501 (Standards of Medical Fitness) 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), lists priapism or surgery to correct priapism as a cause for referral to an MEBD.  Paragraph 3-6 (gastrointestinal and abdominal surgery) does not list cholecystectomy or splenectomy as a cause for referral to an MEBD (although splenectomy – except when accomplished for certain listed reasons – and sequelae of cholecystectomy are listed as causes for rejection for enlistment).

17.  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 and shall be so considered for the purposes of determining whether the disability was incurred in the line of duty.

18.  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.

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his medical records should be reconsidered so he may be granted a medical retirement.

2.  The evidence of record shows that the applicant was diagnosed with hemoglobin sickle cell disease and hemolytic anemia secondary to hemoglobin sickle cell disease.  An MEBD determined the conditions were incurred while he was entitled to pay, did not exist prior to his service, and were not permanently aggravated by his service.  He was referred to a PEB which subsequently found him fit for duty.  It appears he elected not to remain on active duty and was ultimately discharged on his ETS date.  There is neither error nor injustice.

3.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Therefore, an award of a higher VA rating does not establish error or injustice in the Army rating.

4.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, there is no basis to grant him the requested relief in this case.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070010504, dated 3 January 2008.


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      _________________________
                 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)                                         AR20080018270



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ABCMR Record of Proceedings (cont)                                         AR20080018270



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