IN THE CASE OF:	  

		BOARD DATE:	       30 April 2009

		DOCKET NUMBER:  AR20080018296 


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 the honorable discharge he received from the Colorado Army National Guard (COARNG) be corrected to show he was medically discharged or retired.

2.  The applicant states, in effect, that he should have been given a medical discharge from active duty instead of a normal honorable discharge.

3.  The applicant adds that he was told by several members of the COARNG that because the 147th Combat Hospital was deployed, it would be easier to be honorably discharged and then have the Veterans Administration [now the Department of Veterans Affairs] (VA) decide his medical disability percentage and then have the COARNG change his discharge.  It turns out that it took the VA almost 5 years to determine his percentage because of lost records from the COARNG and he is still waiting to hear from the Veteran's Board of Appeals for his 60 percent decision.

4.  The applicant also adds that in calendar year 2000, he should have been given a medical review board.  He was never informed of his rights or procedures to include time limits for change.  He was on a DA Form 268 [under a suspension of favorable personnel action] at the time of his discharge due to his inability to safely complete a two mile run.  He should have been given a chance for a medical discharge.

5.  In support of his request, the applicant submitted copies of his military medical records, two letters which indicate or allege, in effect, that he was discharged from the COARNG with medical conditions suffered while on active duty.

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 service record shows he enlisted in the COARNG and as a Reserve of the Army on 26 September 1986.  The applicant continued to serve and was honorably discharged on 25 December 2000 in the rank and pay grade, Staff Sergeant/E-6, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management) at the expiration of his term of service.  On the date of his discharge, the applicant had completed 14 years and 3 months net service.

3.  Item 18 of the NGB Form 22 (National Guard Bureau - Report of Separation and Record of Service) shows the applicant was ordered to active duty in support of Operation Desert Shield / Desert Storm for the period from 3 January 1991 through 13 May 1991.  The applicant served in Southwest Asia for the period 29 January 1991 through 27 April 1991.

4.  On 24 March 1991, the applicant completed and signed a Chronological Record of Medical Care for Southwest Asia Demobilization / Redeployment - Medical Evaluation.  To the question, "What diseases or injuries did you have while in the Southwest Asia region?," the applicant responded, "None."  To the question, "Do you have a cough or sinus infection?," the applicant responded "No."

5.  Page two of the Report of Medical Examination prepared for the applicant on 9 February 1993 shows he successfully passed a Class III Flight Physical.  The applicant's PULHES Serial at the time of this physical examination was a 1 1 1 1 1 1.  The applicant had no assignment limitations imposed on him as a result of this examination.

6.  A DA Form 4186 (Medical Recommendation for Flying Duty) was also completed on 9 February 1993 to document the applicant's Class III Flight Physical.  The applicant was cleared for "Full crew chief duties."  The applicant acknowledged his clearance on the same date.

7.  On 8 November 1993, the applicant was seen by medical treatment personnel for a cough which was accompanied by a wheeze that had lasted for three days.  The applicant's chest was X-Rayed.  The applicant was diagnosed to have Bronchitis and a while no specific findings or recommendation were made on the radiological report, a comment was made on the report that the result were "within normal limits."  A DA Form 3349 (Physical Profile) record was prepared on this same date.  The applicant, this form states, was found to have Bronchitis.  He was restricted from running, prolong standing, and marching, for five days and the restrictions expired on 13 November 1993.

8.  On 16 February 1994, the applicant was examined and was found to have Bronchitis.  The applicant was restricted from running and was to take PT (physical training) at his own pace and in an amount to be determined by him.  These restrictions expired on 24 February 1994.

9.  On 20 May 1997, an AF Form 422 (Physical Profile Serial Report) was completed on the applicant.  He was examined and found to have exercise induced Asthma; however, no assignment limitation were imposed upon him and referral to a Medical or Physical Evaluation Board (MEB or PEB) was not deemed necessary.  The examining physician did however complete a DA Form 4186 (Medical Recommendation for Flying Duty) and did temporarily suspend the applicant from flying duties for medical reasons for 90 days beginning on 20 May 1997.

10.  The Total Army Personnel Data Base (TAPDB) maintained for the applicant shows in the Physical Data section that he last underwent a physical examination on 1 December 1997.  At the time, the applicant was 72 inches in height, and weighed 175 pounds.  The applicant had no limitations imposed due to physical profile and his PULHES Serial was 1 1 1 1 1 1.  The TAPDB record also states that the applicant last passed his APFT in May 1997.

11.  There is no evidence in the applicant's available service records to show that he had been identified for entry into the PDES (Physical Disability Evaluation System) or to go before a MEB or PEB.

12.  There is no documentary evidence in the applicant service medical records that he requested a review of his medical records by a MEB in calendar year 2000 or in any year.  Because there is no evidence the applicant was ever identified for entry onto the PDES, there was no requirement for him to be informed of his rights or procedures pertinent to MEB/PEB processing and time limits applicable thereto.

13.  The applicant alleges that he was on a DA Form 268 [under a suspension of favorable personnel action] at the time of his discharge due to his inability to safely complete a 2 mile run and that he should have been given a chance for a medical discharge.  There is no evidence, and the applicant provided none, to support his statement that his favorable personnel actions had been suspended.

14.  In a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) the applicant submitted to the Army Discharge Review Board on 7 October 2008 requesting that his honorable discharge be changed to a medical separation, he stated, in effect, that in the early 1990s he started to have issues with a medical condition that was later identified as Asthma.  In the late 1990s, he stated, the COARNG was unable to perform medical evaluations and he believes that had they ordered a medical review board as he had requested, he would have been discharged honorably with a medical discharge.

15.  The applicant continues that he was originally diagnosed with Bronchitis in 1993 and continued to suffer from this gradually increasing condition until 1997 when he was still on Active Guard Reserve Title 32 active duty.  He was diagnosed with exercise induced Asthma when he was discharged in 2000.

16.  The applicant concluded his remarks by stating, in effect, that when he was forced out of the military in 2000 he was under suspension of favorable personnel actions due to his inability to perform the two mile run safely.  He was on several steroids prescribed to him by military physicians and in his opinion he should have been eligible for a medical discharge and to have ongoing benefits.  Prior to his discharge due to his inability to safely take the APFT because of his ongoing health condition, he inquired about this and was told that the VA would determine if he had service connected disabilities and to come back to the military for a change of military discharge status.

17.  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 Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

18.  PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

19.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

20.  Title 10, United States Code, Chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

21.  Department of Defense Directive 1332.18, Part 7, Final Disposition, paragraph E, Disposition of Unfit Members, provides for the permanent disability retirement of members who have at least 20 years of active service or whose total disability rating is at least 30 percent (emphasis added).

22.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  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, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.

23.  The VA can evaluate a veteran throughout his or her lifetime and adjust the individual's percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

24.  The applicant provides COARNG Memorandum, dated 2 April 2004, Subject:  Available Records for [the applicant] in which appears the following statement:  [The applicant] was discharged from the COARNG several years ago due to a medical condition he contracted while serving in Southwest Asia during Operation Desert Storm.  This memorandum was addressed to the VA apparently to address the absence of the applicant's personnel and other records at the COARNG and not to serve as witness to the applicant's reason for leaving the COARNG.

25.  The applicant provides a letter that was prepared by an acquaintance of his for the VA apparently in support of his claim for service-connected disability compensation and benefits.  In this letter, the author states, in effect, that they served together in Southwest Asia in support of Operation Desert Shield / Desert Storm.  The applicant had minor health problems there relating to his respiratory system but since their redeployment his asthma became progressively worse and now he must use an inhaler every day.  It is now to the degree of severity that he can no longer fully participate in any extracurricular events at all.  It affected him while he served in the military and during his APFT (Army Physical Fitness Test) and during any physical exertion.


DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant's NGB Form 22 shows he was honorably discharged on 25 December 2000, under the provisions of National Guard Regulation 600-200, at the expiration of his term of service, in pay grade E-6, and not for a medical condition that he contracted while serving in Southwest Asia during Operation Desert Shield / Desert Storm as indicated in the 2 April 2004 letter.

3.  There is no evidence of record nor did the applicant provide any to show he was ever deemed medically unfit to perform his duties.  The evidence show that the applicant underwent a rigorous Class III Flight Physical Evaluation and was found physically fit to perform the duties of a crew chief in 1993 and again in 1997.  After each medical examination, the applicant was given a P1, U1, L1, H1, E1, S1 physical profile with no assignment limitations.  There is also no evidence the applicant's medically diagnosed conditions were considered by medical treatment personnel sufficiently severe to cause them to refer him to either a MEB or to a PEB.

4.  The evidence does shows that the applicant was suspended from performing flight duties; however, this suspension was only of a few days duration.  There is no evidence, and the applicant provided none, to show he was permanently suspended from flight duties or that he ever had a suspension that remained for longer than a few days in duration.

5.  There is no evidence that the applicant was under a suspension of favorable personnel action at the time of his discharge due to his inability to safely complete a two mile run.  There is no evidence, and the applicant provided none, to show that he had a physical profile and assignment limitations imposed upon him as a result of physical profile at the time of his discharge from the COARNG.  It appear the applicant made a decision to leave the Army National Guard and did not reenlist even though, based upon the available evidence from a medical and a physical fitness standpoint, he likely would have qualified for reenlistment.

6.  In accordance with governing laws, the VA is the Department responsible for compensating veterans when service related conditions cause social or industrial impairment after a Soldier's discharge.

7.  The applicant is advised that the VA can evaluate a veteran throughout his or her lifetime and can adjust the individual's percentage of disability based upon that agency's examinations and findings.  The applicant is further advised that the VA has neither the authority nor has it ever had the authority for determining physical fitness for military service members so they can return to their military department to have their discharge corrected or changed as he alleges he was told by several members of the COARNG.

8.  In view of the foregoing, there is no basis for granting the applicant's request for a change of his discharge to a medical discharge or medical retirement.

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)                                         AR20080018296





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ABCMR Record of Proceedings (cont)                                         AR20080018296



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