IN THE CASE OF:	  

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090005090 


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 the reason for his release from active duty on 20 December 2003 be changed to a medical retirement.

2.  The applicant states he was retained under stop loss in 2003 to deploy for Operation Iraqi Freedom.  He states he was medically evacuated from Baghdad, given a permanent P3 profile for restrictive airway disease, and told by the doctor that he was no longer medically eligible for military service.  He states he is 40-percent disabled by the Department of Veterans Affairs (VA).  He states he was beyond his expiration of term of service (ETS) and a doctor told him he could no longer serve in the Army.  He believes he should have been medically retired.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); 83 pages from his service medical records; his VA Rating Decision, dated 22 July 2004; a letter from the VA, dated 19 February 2009; and 45 pages from his VA medical records 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 military personnel records show he enlisted in the Regular Army on 8 September 1998 for a period of 5 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 35E (Radio and Communications Security Repairer).

3.  The copies of service medical records provided by the applicant show he started to receive treatment for breathing problems in September 2002.  He was prescribed Albuterol.  In December 2002, he was diagnosed with mild persistent asthma and placed on Albuterol, Servent, and Florvent inhalers.

4.  In the applicant's DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period August 2002 to April 2003, the rater indicated he was "Among the Best" in overall potential for promotion and/or service in positions of greater responsibility.  In the section for physical fitness and military bearing, the rater specifically stated the applicant's profile did not hinder his duty performance.  The record does not show what his profile consisted of at this time.

5.  On 27 April 2003, the applicant was deployed to Iraq.  A letter from the 28th Combat Support Hospital, dated 15 May 2003, notified the applicant's unit that he was scheduled for medical evacuation due to his asthma.

6.  On 14 July 2003, a treatment record from Landstuhl Regional Medical Center, Germany, shows the applicant received follow up treatment for frequent flare-ups of asthma while being deployed.  The record shows his medications as Prednisone; Albuterol, Advair, and Singulair inhalers; Allegra; and Flonase.

7.  On 22 July 2003, the applicant received follow-up treatment for his asthma at Irwin Army Community Hospital, Fort Riley, KS.

8.  On 22 July 2003, the applicant was given a temporary (T) profile of 3 for physical capability to expire on 22 August 2003.

9.  A letter from Dr. R____, Medical Associates of Manhattan, P.A., dated 26 August 2003, contains the results of the evaluation of the applicant for asthma.  The examiner states the applicant's medications include Albuterol, Singulair, Advair 250/50, Allegra, Flonase, and occasional use of Ephedrine while weight lifting.  The examiner stated the applicant complains of continuous sinus drainage since arriving in Kansas and his asthma is worse during the summer months and improves after the first frost.

10.  Dr. R____ determined that by the applicant's symptoms and pulmonary function studies, he had moderate persistent asthma.  Dr. R____ increased the applicant's Advair to 500/50, substituted Zyrtec for Allegra, provided Atrovent nasal spray for times of increased rhinitis, continued his Singulair, provided Pseudoephedrine for nasal symptoms, and continued Albuterol.  Dr. R____ recommended that the applicant be given a P3 profile for his asthma, that the time he wears his gas mask be limited to less than 15 minutes, and that he should not be deployed to medically under-served regions of the world or to isolated areas of the world.

11.  Dr. R____ stated that given the applicant is a radio repairman, he may be eligible for full retention according to Army Regulation 40-501 (Physical Evaluation for Retention, Retirement, or Separation) if his asthma can be controlled with his medications and he can perform his duties.  Dr. R____ stated the applicant's asthma was relatively well controlled at the time, but he believed he could improve the applicant's function even more with more aggressive therapy.

12.  On 26  August 2003, the applicant was given a temporary (T3) profile for physical capability to expire on 26 November 2003.

13.  On 20 December 2003, the applicant was honorably released from active duty by reason of completion of required active service.  He was retained in the service for 105 days for the convenience of the government.  He had completed 5 years, 3 months, and 13 days of active service that was characterized as honorable.

14.  A VA, Winston-Salem, NC, Rating Decision of 22 July 2004 granted the applicant service connection for bronchial asthma with a disability evaluation of 30 percent.

15.  In the processing of this case, an advisory opinion, was provided by the Office of the Surgeon General (OTSG), dated 24 September 2009.  The OTSG stated that the applicant did not meet retention standards in accordance with paragraph 3-27a, in effect at the time, and he should have been referred to a medical evaluation board (MEBD) and possibly to a physical evaluation board (PEB).

16.  On 6 October 2009, a copy of the OTSG advisory opinion was sent to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  However, the applicant did not respond within the allotted time.

17.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 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 (Physical Evaluation for Retention, Retirement, or Separation).

18.  To make a profile serial more informative, two modifiers are used:  "P" (permanent) and "T" (temporary).  The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

19.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation 
40-501, as amended, provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.  Paragraph 3-27a of this chapter provides that asthma is a cause for referral to an MEBD.  Paragraph 
3-27a(1)(d) provides that Soldiers who are diagnosed as having asthma may be placed on a temporary profile under the "P" factor of the physical profile for up to 12 months' trial of duty, when medically advisable.  If at the end of that period, the Soldier is unable to perform all military training and duty, the Soldier will be referred to an MEBD/PEB.  Paragraph 3-27a(4) provides that chronic asthma meets retention standards, but is a cause for a permanent P2 profile if the Soldier requires regular medications but his asthma does not prevent the Soldier from otherwise performing all military training and duties including the 2-mile run within time standards.

20.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEBD.  Those members who do not meet medical retention standards based on the criteria in Army Regulation 40-501 will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

21.  Title 38, U.S. Code, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically retired because of his asthma.  He contends he was given a P3 profile due to his asthma and a doctor told him he could no longer serve in the Army.

2.  The applicant was treated for breathing problems as early as September 2002 and diagnosed with asthma in December 2002.  He was clearly taking medications for this condition since September 2002.

3.  The applicant's last NCOER in his records shows he was able to perform the duties of his rank and his MOS.

4.  There is no record the applicant was given a permanent profile for his asthma. He was given a T3 profile due to asthma to expire on 26 November 2003.  However, there is no evidence that he was determined to be unable to perform the duties of his rank or MOS upon the expiration of his profile.  Without this determination there would be no cause to refer him to an MEBD or for a determination of unfitness by a PEB.

5.  Notwithstanding the opinion of the OTSG, chronic asthma can meet retention standards.  Dr. R____ specifically stated the applicant's asthma was relatively well controlled and it could be improved with additional aggressive therapy.  Army Regulation 40-501 provides that chronic asthma meets retention standards if it requires medication and does not prevent the Soldier from otherwise performing all military training and duties, including the 2-mile run within time standards.  There is no evidence showing the applicant could not meet these requirements.

6.  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.  Accordingly, it is not unusual for the VA to award a veteran a disability rating when the veteran was not separated due to physical unfitness.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.

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 that 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)                                         AR20090005090



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ABCMR Record of Proceedings (cont)                                         AR20090005090



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