IN THE CASE OF:	  .

		BOARD DATE:	       1 OCTOBER 2009

		DOCKET NUMBER:  AR20090005243 


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 honorable discharge from the Regular Army (RA) be corrected to show he was placed on the Retired List for physical unfitness.

2.  The applicant states that his medical records show that he complained of fatigue; joint pain in the hips, knees and shoulders; stomach pain; acid reflux; nausea; regurgitation; and difficulty breathing in 2005 and 2006.  However, the Army failed to evaluate and treat these conditions.  He claims that if he had been separated today, he would be medically retired.  The applicant lists the medical conditions which have been rated as disabling by the Department of Veterans Affairs (VA) and describes how these conditions existed and were physically unfitting while he was on active duty.

3.  The applicant provides various military and VA medical records in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he entered active duty on 22 February 2001 with prior active and inactive service.  He served as an infantryman in pay grade E-5. 



2.  The military medical records provided by the applicant show that he was treated for several medical conditions while on active duty.  However, none of his medical conditions were considered severe enough to refer the applicant to a medical evaluation board (MEBD).  

3.  On 12 July 2006, the applicant was given a medical examination.  In that examination a DD Form 2807-1 (Report of Medical History) was completed.  Under the section "HAVE YOU EVER HAD OR DO YOU NOW HAVE:," the applicant's response under "Yes" include asthma or any breathing problems related to exercise, weather, pollens, etc; shortness of breath; bronchitis; wheezing or problems with wheezing; been prescribed or used an inhaler; a chronic cough or cough at night; worn contact lenses or glasses; painful shoulder, elbow or wrist (e.g. pain, dislocation, etc.); numbness or tingling; swollen or painful joint(s); knee trouble (e.g. locking, giving out, pain or ligament injury, etc.); any need to use corrective devices such as prosthetic devices, knee brace(s), back support(s), etc; broken bone(s) (cracked or fractured); frequent indigestion or heartburn; adverse reaction to serum, food, insect stings, or medicine; frequent or severe headache; and nervous trouble of any sort (anxiety or panic attacks).  The applicant indicated that he was currently in good health.  The examining physician determined that the applicant did not have any medical condition which would require physical profile restrictions.  However, the physician also determined that the applicant was not qualified for service due to obesity (his height was 69 inches and his weight was 270 pounds).

4.  On 10 November 2006, the applicant was honorably discharged by reason of completion of required active service.

5.  On 11 November 2006, the applicant enlisted in the Army National Guard (ARNG).  However, he was discharged on 31 January 2007 due to an erroneous enlistment.

6.  On 11 November 2006, the VA increased a 30 percent disability rating for obstructive sleep apnea to 50 percent, and increased a zero percent disability rating for gastroesopageal reflux disease with bilateral shoulder pain to
10 percent.  The dates of the original disability ratings are not a matter of record. 

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), which governs the processing of Soldiers under the Disability Evaluation System (DES), chapter 3, Policies, paragraph 3–1, Standards of unfitness because of physical disability, states the following:


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.

Objectives of standards.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualifications standards have been established in Army Regulation
40–501 (Standards of Medical Fitness), chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an MEBD.  The major objective of these standards is to achieve uniform disposition of cases arising under the law.  These retention standards and guidelines should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation from the Army.  The fact that the Soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for Soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness.

Considering the overall effect of disabilities.  The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered.  The effect will be considered both from the standpoint of how the disabilities affect the Soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments.  A Soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness.

Evaluating the Soldier’s fitness to perform duties.  All relevant evidence must be considered in evaluating the fitness of a Soldier.  Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence.  Thus, if the preponderance of evidence indicates unfitness, a finding to that effect will be made.  For example, when a referral for physical evaluation immediately follows acute, grave illness or injury, the medical evaluation may have the greater weight.  This is particularly true if medical evidence establishes the fact that continued service would be harmful to the Soldier’s health or would prejudice the best interests of the Army.  A Soldier may be referred for physical evaluation under other circumstances.  If so, evaluations of the 
performance of duty by supervisors (letters, efficiency reports, or personal testimony) may provide better evidence than a clinical estimate by the Soldier’s physician describing the physical ability to perform the duties of 
the office, grade, rank, or rating.  Thus, if the evidence establishes the fact that the Soldier adequately performed the normal duties of his or her office, grade, rank, or rating until the time of referral for physical evaluation, the Soldier might be considered fit for duty.  This is true even though medical evidence indicates the Soldier’s physical disability to perform such duties may be questionable.  However, inadequate duty performance should not be considered as evidence of physical unfitness unless a cause and effect relationship exists between the inadequate duty performance and the presence of physical disabilities.

Deciding the Soldier’s unfitness to perform duties.  Initial enlistment, induction, or commissioning physical standards are not relevant to deciding unfitness for continued military service.  Once a Soldier has been enlisted, inducted, or commissioned, the fact that the Soldier may later fall below initial entry physical standards does not, in itself, authorize separation or retirement unless it is also established that the Soldier is unfit because of physical disability as described above.  Likewise, a lack of special skills in demand, inability to meet physical standards established for specialized duty such as flying, or transfer between components or branches within the Army, does not, in itself, establish eligibility for disability separation or retirement.  Although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness.

8.  Army Regulation 40–501 contains a weight standard under its procurement (enlistment) standards.  It does not contain a weight standard under its retention standards.

9.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  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.  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.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was never determined medically disqualified.  As such, he was never referred to an MEBD.  Without an MEBD he could not have been referred to a physical evaluation board (PEB).  Without a PEB, he could not have been medically retired.

2.  The applicant argues that the fact that he was treated for medical conditions while on active duty which were subsequently rated as disabling by the VA shows that the Army should have medically retired him.  This is not so.  The VA has no requirement for determining whether a medical condition is medically disqualifying or physically unfitting.  The VA only has to determine whether the medical condition affects the employability of the veteran.

3.  The applicant was discharged from active duty at his expiration of term of service (ETS).  The separation physical examination showed that while he had no physical profile limitations (which indicates no serious medical conditions), he was disqualified due to being obese.  Obesity is not medically disqualifying for retention.  As such, the evidence shows that he was properly discharged at his ETS; therefore, there is no basis for granting the applicant's requested relief.

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.



      ____________XXX_________
               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)                                         AR20090005243



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ABCMR Record of Proceedings (cont)                                         AR20090005243



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