IN THE CASE OF:	  

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090006812 


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, a medical discharge. 

2.  The applicant states, in effect, that she was discharged without a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB) even though she was disabled and unfit for further service.  She contends that her medical records reflect serious and chronic conditions which should have been referred to an MEB and PEB for evaluation for placement on the Temporary Disability Retired List and permanent disability retirement.  She indicates that she receives Department of the Veterans Affairs (DVA) compensation for Gulf War Syndrome at this time.

3.  The applicant states that she was in very good to excellent health prior to going to Saudi Arabia in January 1991.  She indicates that she was unprepared for carrying two duffle bags and a ruck sack, that it was too much weight for her body to handle, and that the strain was tremendous.  She points out that she had to dig trenches, fill sand bags, stack sand bags, set up tents, load and unload the supply truck and that the carrying, lifting, and sleeping on cots which provided no back support wreaked havoc on her hands and lower back.       

4.  The applicant also states that her last U.S. Army Reserve (USAR) training drill occurred in February 1998, that her retirement was effective 14 March 1998, and that at no time between 1991 and 1998 was she ever evaluated by any Army board.  She goes on to state that her present physical condition is such that she has daily problems with her lower back, shoulders, knees, and fatigue.  She also claims that since returning from Saudi Arabia she has had an ongoing battle with depression.

5.  The applicant states that prior to leaving Saudi Arabia they were required to fill out a medical form stating their health at that time.  She filled out a form which stated that her legs and fingers tingled, her chest burned, and her shoulders and lower back hurt.  She contends that she left Saudi Arabia on 18 April 1991 and on 22 April 1991 she went to Walter Reed Army Medical Center where she received Zantac for the burning in her chest, a cortisone shot in her middle right finger, and an EMG [electromyogram] because of the tingling in her legs.  In 1992/1993, she was diagnosed with fibromyalgia and she believes her memory problems are part and parcel of the fibromyalgia, a condition which materialized after her tour of duty in Saudi Arabia.   

6.  The applicant further states that her last years of USAR duty were difficult for her whenever she had to wear load bearing equipment for any amount of time because of her lower back, shoulder problems, and the resulting numbness in her fingers.  Between the time she returned to work after her tour in the Persian Gulf and 1993, she had several months of chiropractic treatment for her lower back at a private facility in Pennsylvania.  Additionally, her worsening knee problems also prevented her from performing the two mile run required by the reserve unit.  During one weekend USAR drill in 1996 or 1997 she reported to her commanding officer that she was in too much pain to wear the load bearing equipment plus by wearing it her fingers became numb and she could not adequately fire a weapon on the firing range.  She contends that her overall health took a decidedly negative turn as a consequence of her tour of duty in the Persian Gulf in 1991.       

7.  In a 19-page brief, dated 12 June 2008, the applicant's attorney states, in effect, that the applicant was not fit to perform the duties of a psychologist in 1991 or 1997.  She had a variety of disabling conditions, including fibromyalgia, that severely impacted her ability to function in her military occupational specialty, since these deficits affected her ability to recall and remember as well as to focus and to concentrate on therapy for others.

8.  The applicant provides an affidavit; a Table of Contents which outlines her attachments; service records and DVA medical records; and a brief from her attorney, dated 12 June 2008, in support of her 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.  Having prior enlisted and commissioned service in the USAR, the applicant was ordered to active duty on 5 December 1990 in support of Operation Desert Shield/Storm.  She served as a clinical psychologist in the Medical Corps in Southwest Asia from 5 January 1991 to 19 April 1991.  

3.  On 1 April 1991, the applicant underwent a physical examination and was found to be qualified for release from active duty with a physical profile of 121111.  She noted that she had constant tingling in her fingers on her right hand, a burning sensation in her chest, lower back pain and problems with her feet in item 8 (Statement of Examinee's Present Health and Medications Currently Used) on her Standard Form 93 (Report of Medical History). 

4.  The applicant provided a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 26 April 1991, which states that she injured her wrist (pain in wrist) on 14 February 1991 after digging ditches and lifting equipment in Saudi Arabia.  

5.  On 9 May 1991, the applicant was released from active duty.

6.  Part IVa3 (Maintains appropriate level of physical fitness) on the applicant's Officer Evaluation Report (OER) for the period 10 May 1991 through 9 May 1992 shows the applicant was rated "1" [highest degree] by her rater.  This OER shows she had a profile dated June 1991.

7.  Part IVa3 on the applicant's OER for the period 9 May 1992 through 8 May 1993 shows the applicant was rated "1" by her rater.  This OER shows she had a profile dated February 1992.

8.  Part IVa3 on the applicant's OER for the period 9 May 1993 through 
15 September 1993 shows the applicant was rated "1" by her rater.  This OER shows she had a profile dated September 1993.

9.  Part IVa3 on the applicant's OER for the period 16 September 1994 through 15 September 1995 shows the applicant was rated "1" by her rater.  This OER shows she had a profile dated September 1993.

10.  Part IVa3 on the applicant's OER for the period 16 September 1995 through 15 September 1996 shows the applicant was rated "1" by her rater.  This OER shows the applicant passed the Army Physical Fitness Test (APFT) in July 1996.

11.  Part IVa3 on the applicant's OER for the period 16 September 1996 through 
1 June 1997 shows the applicant was rated "1" by her rater.  This OER shows the applicant passed the APFT in June 1997.

12.  All of the above mentioned OERs show the applicant's principal duty title as clinical psychologist.  Part Vb (Performance During This Rating Period)  of her final OER for the period 16 September 1996 through 1 June 1997 shows she was rated "Always Exceeded Requirements."  

13.  On 10 December 1997, the applicant received her 20 year letter.

14.  On 16 March 1998, the applicant was released from the USAR in the rank of lieutenant colonel and assigned to the Retired Reserve based on a voluntary transfer.   

15.  On 28 August 2008, a request for an advisory opinion was forwarded to the Office of The Surgeon General.  On 4 November 2008, the case was returned without action by the Office of The Surgeon General.     

16.  On 17 November 2008, the applicant was notified that the Office of The Surgeon General returned her case without action.  The Office of The Surgeon General reviewed the applicant's application and determined the medical information she provided was insufficient for their office to render a medical opinion.  The Office of The Surgeon General requested that the applicant provide any documentation showing her profile while on active duty in 1991, her Line of Duty (LOD), and any documentation/memorandum notifying her commander of her request for a PEB.  On 20 November 2008, counsel requested a 30-day extension to locate and submit profile information on the applicant.  On 27 March 2009, counsel responded and indicated that the applicant's medical records did not contain any LOD reports or profiles.  The applicant requested that her case be submitted to the Board without these documents.   

17.  In support of her claim, the applicant provided numerous medical records and DVA documentation. 

18.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  

20.  Paragraph 3-13a of Army Regulation 635-40 states that General officers and Medical Corps officers will not be found to be unfit by reason of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and experience.   Paragraph 3-13b of this regulation states that General officers and Medical Corps officers who are processing for retirement by reason of age or length of service may not be retired for physical disability unless the initial unfitness determination of the Secretary of the Army is approved by the Secretary of Defense on the recommendation of the Assistant Secretary of Defense (Health Affairs) (ASD(HA)). 

21.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) 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.  

22.  Title 38, U. S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  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.  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 DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, medical evidence of record shows that on 1 April 1991 the applicant underwent a separation physical examination and her physical profile was 121111.   Numerical designator "2" indicates 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 and the individual should receive assignments commensurate with his or her functional capacity.  

2.  The applicant's OERs for the period May 1991 to June 1997 show her rater rated her "1" in maintains appropriate level of physical fitness which shows she was able to perform her military duties.  She passed the APFT in 1996 and 1997.   Her last OER shows she always exceeded requirements in her duties as a clinical psychologist.  Therefore, it appears her raters believed she was fully capable of performing her duties well after her tour in Southwest Asia.  There is insufficient evidence to show the applicant was unable to perform her duties, insufficient evidence to show she was eligible for physical disability processing, and there insufficient evidence to show there is a basis for a medical discharge.   

3.  In addition, paragraph 3-13a of Army Regulation 635-40 states that Medical Corps officers will not be found to be unfit by reason of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and experience.   

4.  The applicant's contention that she receives compensation from the DVA was noted.  However, the rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability. 






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)                                         AR20090006812



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ABCMR Record of Proceedings (cont)                                         AR20090006812



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