IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090001261 


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 his record be corrected to show he was medically retired instead of being retired by reason of length of service as is currently indicated in his record and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

2.  The applicant states, in effect, he suffered from chronic obstructive pulmonary disease which could not be diagnosed at that time due to a lack of sophisticated diagnostic tests and as a result he was erroneously retired by reason of length of service based on his completion of 20 years of active duty service.  

3.  The applicant further states that the Board should adopt the decision of the Department of Veterans Affairs (DVA) Appeals Board, dated 12 October 2006, which held that the onset of his chronic obstructive pulmonary disease occurred while he was on active military duty in 1958.  He further states his military records will show he was hospitalized for 22 days with pneumonia at Fort Bragg, North Carolina, in 1958, and the DVA decision establishes that his retirement should have been for medical reasons.  

4.  The applicant contends that following his release from the hospital in 1958, he experienced daily episodes of acute chest pains and shortness of breath.  He claims that he always recovered in a short period of time with no apparent ill effects and as a result he never went on sick call.  However, there is evidence 

from three Judge Advocate General (JAG) officers with whom he served from 1958 to 1961, in the 82nd Airborne Division, who attest to his pulmonary problems during this period.  

5.  The applicant further claims that after he was assigned to Germany in 1961, his symptoms were considerably more acute with the onset of winter, and he could not breathe the cold air and was being suffocated by coal smoke from the locomotives and homes burning coal.  He indicates he was hospitalized in Germany for 4 days following a particularly acute respiratory bout; however, all medical tests were negative.  He states that had pulmonary function tests been available at the time, he is sure his condition would have been diagnosed.  He states that at his retirement medical examination, tests were negative for pulmonary or cardiac conditions and thus, he was forced to retire based on completion of 20 years of service, not for medical reasons as he should have been.  

6.  The applicant concludes by stating that on 12 October 2006, the DVA decided that the onset of his condition was in 1958, when he was on active duty, and he was issued a disability award letter on 27 February 2008, which is when he began to look at the application procedures for correcting his military record.  

7.  The applicant provides a DVA Rating Decision, dated 3 August 2007; VA Appeals Board Order, undated; Department of the Army (DA) Retirement Approval Packet, dated 25 January 1962; and DD Form 214 in support of his application.  

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 completed a total of 20 years, 6 months, and 19 days of active military service, in both an enlisted and an officer status, on 31 January 1962.  It further shows that the highest rank he held while serving on active duty was first lieutenant (1LT) and that he held the rank of master sergeant (MSG) on the date of his release from active duty (REFRAD) for retirement on 31 January 1962.

3.  The applicant's record contains a DD Form 481-2 (Clinical Record Cover Sheet), dated 19 March 1958, which shows the applicant was hospitalized at the United States Army Hospital, Fort Bragg, for 22 days and was treated for "pneumonia, lobar, n.e.c./right lower lobe, due to undetermined organism."  The disposition indicates the applicant was returned to duty.  It also contains a DD Form 481-3 (Clinical Cover Sheet), dated 6 June 1961, which shows the applicant was hospitalized for 3 days at the United States Army Hospital, Bad Kreuznach, Germany, for "observation, medical, chest pains, no disease found."  The disposition shows he was returned to duty upon his release from the hospital.  

4.  A Standard Form (SF) 513 (Consultation Sheet) completed by a civilian physician on 12 August 1961, indicates that the applicant had an episode of chest pain and was treated at the 14th Field Hospital for 2 days.  His EKG [electrocardiogram] was within normal limits and a physical examination was negative.  There is also a notation that indicates that no disease was present.  

5.  An SF 89 (Report of Medial History) completed by the applicant on
5 November 1961, during his retirement processing, contains a self-authored statement that indicates he was in excellent health except for recurring daily chest pains and a perforated left ear drum.  The Physician's summary indicates the applicant had a history of recurrent ear infection and that his chest pain issue was addressed in Item 73 (Notes) of the SF 88 (Report of Medical Examination). The SF 88 documenting his retirement medical examination indicates all normal clinical findings with the exception of ears.  The clinical evaluation finding for lung and chest was normal, as was the finding for his heart.  The examining physician noted his history of chest pains in Item 73, and indicated this matter was resolved through a medical consultation.  The examining physician assigned the applicant a physical profile of 111211 and determined the applicant was medically qualified for retirement/retention.  There is no indication that the applicant suffered from a disabling medical condition that warranted his retirement processing through medical channels.



6.  On 31 January 1962, the applicant was honorably retired, in the rank of MSG, by reason of length of service retirement, after completing a total of 20 years,
6 months, and 19 days of active military service.

7.  The applicant provides a DVA Rating Decision, dated 3 August 2007, which awarded him service-connection for restrictive lung disease with a 30 percent disability rating based on a 12 October 2006 decision by the Board of Veterans Appeals that granted service-connection for restrictive pulmonary disease.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  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.  Separation by reason of disability requires processing through the PDES.

9.  Chapter 3 of Army Regulation 635-40 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, in and 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.

10.  Paragraph 3-2 of Army Regulation 635-40 contains guidance on fitness presumptions.  It states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the Soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

11.  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.  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 should have received a medical retirement based on his chronic obstructive pulmonary disease which could not be diagnosed at that time due to a lack of sophisticated diagnostic tests and resulted in his erroneous retirement by reason of length of service based on his completion of 20 years of active duty service was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, the mere presence of impairment does not, in and 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.

3.  The evidence of record shows the applicant's retirement processing for length of service was properly accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It further confirms that the applicant was only retired by reason of length of service retirement after he had undergone a comprehensive separation medical examination, which included a consultation evaluation of his heart condition, which resulted in his being cleared for separation by competent medical authority.

4.  The medical evidence of record and the independent medical evidence provided by the applicant, while showing his restrictive pulmonary disease 

condition was likely the result of the pneumonia for which he was treated while serving on active duty, fails to show this condition or any other condition or illness he suffered from the time of his discharge was sufficiently disabling to disqualify him from further service or to support his separation processing through medical channels.

5.  The applicant's military medical records outline his treatment for pneumonia and for chest pains he received while he was on active duty.  However, they fail to show that any of the conditions for which he was treated were physically disabling, prevented him from performing his duties, or warranted his separation processing through the PDES at the time of his retirement.  During his retirement physical, the applicant noted that he was in excellent health, clearly indicating that he did not have any medical condition that prevented him from performing hs duties.

6.  The Rating Decision he provides shows he was granted service-connection with a 30 percent disability rating from the DVA for restrictive pulmonary disease; however, the military medical treatment records on file and provided by the 
applicant fail to confirm this condition was physically disabling and supported his retirement processing through medical channels at the time of his length of service retirement.  In fact, his continued performance of assigned duty commensurate with his or her rank or grade between when he was treated for pneumonia in March 1958 until he was scheduled for retirement in January 1962, creates a presumption that he was fit.  

7.  The applicant is advised that the DVA, 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 applied by military medical authorities at the time of his discharge.  As a result, the VA is the appropriate agency to provide him medical treatment and disability compensation for service-connected medical conditions that were not found permanently disabling at the time of his discharge/retirement.

8.  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 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)                                         AR20090001261



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ABCMR Record of Proceedings (cont)                                         AR20090001261



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