IN THE CASE OF:	

		BOARD DATE:	6 October 2009   

		DOCKET NUMBER:  AR20090004861 


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, reconsideration of his earlier petition requesting medical retirement or disability severance pay.  

2.  The applicant states, in effect, that he was arbitrarily deprived of a physical disability retirement and that he is submitting new evidence and argument to support this claim.  He asks that he be given an explanation as to why he did not receive separation pay; and whether the officers involved in the criminal investigation report neglected their duties in reporting, investigating, or advising proper authority of the factual and legal sufficiency of any offense under the Uniform Code of Military Justice (UCMJ).  Additionally, he raises objections to the Board's original findings and its failure to explain how the information contained in the Record of Proceedings determined that he is ineligible for medical retirement or severance pay.  

3.  The applicant provides the following documents in support of his reconsideration request:  self-authored letters, dated 20 February, 8 May, and 
23 June 2009; Standard Form (SF) 89 (Report of Medical History), dated 27 May 1976; SF 513 (Clinical Record-Consultation Sheet), dated 28 May 1976;          DD Form 771-1 (Eyewear Prescription Plastic Lens), dated 14 June 1976;        SF 600 (Chronological Record of Medical Care); DA Form 3349 (Physical Profile Board Proceedings), dated 17 June 1981; and SF 88 (Report of Medical Examination), dated 12 April 1983. 


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 AR20080007238, on 22 July 2008.  

2.  During its original review of the case, the Board found the applicant's physical profile at the time of his discharge was 111121, which showed he was medically fit for continued service.  It further concluded that the 2 numerical designator he received for his eyes was not medically disqualifying and carried with it no assignment restrictions or physical limitations that restricted the performance of his duties in his grade and military occupational specialty (MOS), which was 36C (Wire Systems Installer).   Finally, the Board concluded there was no evidence to show the applicant was eligible for physical disability processing and/or for a medical retirement.  

3.  In the statements he provided with his reconsideration request, the applicant argues, in effect, that his basis for requesting reconsideration is the Board's failure to consider the fact his physical profile of 111121 was already in place on the date of his final examination on 17 June 1981, the date the Board indicated he received this physical profile.  He claims he is submitting evidence that his initial 1976 enlistment was conditioned upon a permanent profile of 2 for his eyes and that this was prior to the serious injury that he received to his eyes and the physical profile of 17 June 1981.  He claims his initial enlistment was conditioned upon the Army providing him corrective lenses and that given he was never provided these lenses, he could no longer be considered qualified for service.  He also claims he was not involved in the process that resulted in the final physical profile outcome documented on the 17 June 1981 DA Form 3349.  

4.  The applicant's record shows he initially enlisted in the Regular Army and entered active duty, on 8 August 1976.  He was trained in and awarded MOS 36C.  On 29 March 1979, he was honorably discharged for the purpose of immediate reenlistment and he reenlisted for a period of 4 years on 30 March 1979.

5.  A DA Form 3647-1 (Inpatient Treatment Record Cover Sheet), dated 
26 May 1981, on file in the applicant's record shows he sustained superficial facial powder burns with conjunctival and intracorneal foreign bodies when a gun went off in his face on 23 May 1981.  The foreign bodies were removed from his eyes in the emergency room.  

6.  On 17 June 1981, the applicant was issued a permanent profile of 111121 under eyes (corneal scar, left eye and light sensitivity secondary to corneal scar, left eye).  Assignment limitations based on this profile were that he could wear dark glasses when on duty outdoors.    

7.  On 1 April 1982, the applicant was promoted to specialist four (SP4) in MOS 36C.  His DA Form 2A (Personnel Qualification Record-Part 1), dated 
24 February 1983, shows his physical profile was 111121.  

8.  On 4 May 1983, the applicant was honorably discharged, in the rank of SP4,  under the provisions of chapter 4, Army Regulation 635-200, by reason of expiration of term of service (ETS).  The DD Form 214 he was issued at the time shows he completed a total of 6 years, 9 months and 23 days of creditable active military service and he had accrued 34 days of lost time due to one period of being absent without leave (AWOL) and two periods of confinement.  

9.  An SF 89, dated 27 May 1976, which the applicant provided contains no notations regarding his eyes.  An SF 513, dated 28 May 1976, which the applicant provided, outlines his corrective lens prescription requirement and a DD Form 771-1 he provided, dated 14 June 1976, is an actual corrective lens prescription form.  An SF 600 he provided outlines medical treatment he received between 10 November 1980 and 15 June 1981, it also outlines the physical profile of P2 for the eyes.  A DA Form 3349, dated 17 June 1981, he provided shows he was issued a P2 profile for his eyes on that date based on his physical defects of corneal scar, left eye and light sensitivity secondary to corneal scar, left eye.  The only assignment limitation listed was that he could wear dark glasses when on duty outdoors.  An SF 88 he provided, dated 12 April 1983, documents his final physical examination and shows he had a physical profile of 111121 and that the examining physician determined he was fully qualified for separation/retention at the time.    

10.  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.

11.  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.

12.  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.

13.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7, physical profiling, states 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.  A physical profile of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect which may require some activity limitations.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical retirement based on an eye condition he suffered from at the time of enlistment and at the time of discharge 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 due to his office, grade, rank, or rating.

3.  The evidence of record shows the applicant was separated by reason of ETS and there is no indication that he suffered from a disabling mental or physical condition that would have supported separation processing through medical channels at the time of his discharge.  The reason he did not receive physical disability separation/severance pay is because there is no evidence his eye condition(s) prevented him from performing his duties, not because “officers involved in the criminal investigation report neglected their duties.”

4.  The applicant enlisted in 1976 and reenlisted in 1979, with an eye condition that supported a 2 profile for the eyes.  The medical documents on file and provided by the applicant give no indication that his eye condition prevented him from performing the duties of his MOS and grade at anytime during his period of service, even after he sustained powder burns to his eyes in 1981.  To the contrary, he was sufficiently able to perform his duties to warrant his promotion in April 1982, a year after the accident.  These documents also give no indication that the referenced eye condition supported separation processing through medical channels at the time of his discharge.  To the contrary, the examining physician that completed his final medical examination found him medically fit for separation/retention at the time.  

5.  The record confirms the applicant was only separated by reason of ETS after he had undergone a comprehensive separation medical examination which resulted in him being cleared for separation/retention by competent medical authority.  The medical evidence of record and the independent medical evidence provided by the applicant, while showing a long standing eye condition, fails to show this condition or any other condition or illness that he suffered from at the time of his discharge was sufficiently disabling to disqualify him from further service or to support separation processing through medical channels.

6.  In fact, the applicant's continued performance of his assigned duties commensurate with his rank or grade between the time that he suffered his last eye injury in May 1981 and was issued his P2 profile in June 1982 creates a presumption that he was fit and this was corroborated by his final medical examination in 1983.  As a result, absent any evidence of record or independent evidence provided by the applicant that shows he suffered from a disqualifying physical condition that would have supported separation processing through medical channels at the time of his discharge, there is an insufficient evidentiary basis to support granting the requested relief.   

7.  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 or that would support amendment of the original Board decision 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 AR20080007238, dated 22 July 2008.  




      _______ _   _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)                                         AR20090004861



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ABCMR Record of Proceedings (cont)                                         AR20090004861



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