IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090007998 


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, consideration of his medical condition, restrictive lung disease, by a Medical Evaluation Board (MEB). 

2.  The applicant states, in effect, that he was never given the option to appear before an MEB for his medically unfitting condition.  He also states that he feels this was an injustice because his line of duty illness was chronically unfitting at the time and he should have been recommended for an MEB.  He was denied due process.  He is currently rated 100 percent permanent and totally disabled by the Department of Veterans Affairs (DVA) and his condition has worsened.  

3.  In support of his application, the applicant provides copies of his Air Evacuation Summary, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and his DVA Rating Decision and letters.

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 records show he was appointed in the United States Army Reserve (USAR) as a second lieutenant effective 17 December 1977.  He was ordered to active duty and entered active duty on 25 January 1978.  

3.  The applicant submitted a copy of an Air Evacuation Summary, dated 8 November 1985, that shows he was admitted to Letterman Army Medical Center for evaluation of restrictive lung disease.  He was subsequently referred to Walter Reed Army Medical Center for clinical, radiographic, and a pathologic second opinion and repeat exercise testing. 

4.  There is no evidence the applicant was referred to a medical evaluation or a physical evaluation board for consideration of restrictive lung disease or a line of duty determination was made for this condition during his period of active duty.

5.  The applicant was honorably discharged from active duty as a major on 29 September 1992, for Reduction in Authorized Strength.  He was appointed in the USAR as a major effective 30 September 1992.  He was honorably discharged from the USAR effective 8 March 2001.

6.  A 1 February 2005 letter from the U.S. Army Reserve Personnel Command indicates the applicant had been placed on the Retired List on 19 June 1996, He volunteered to be assigned to a unit on 7 October 1997, then he was voluntarily transferred back to he Retired Reserve on 1 July 1999.  He was then discharged on 8 March 2001.

7.  The applicant also submitted a copy of a DVA Rating Decision, dated 3 April 2003, that shows he was granted increased service-connected disability for idiopathic pulmonary interstitial fibrosis, a left knee injury, and hypertension.  He also submitted two letters from the DVA pertaining to his award of a 70 percent service-connected disability and being considered 100 percent totally disabled for VA purposes.  

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  

9.  Army Regulation 40-501, chapter 3, provides that, for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  

10.  Title 38, U. S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA 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 DVA, which has neither the authority, nor the responsibility for determining physical fitness for the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian 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.

11.  Unlike the Army, the DVA 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 at the time of discharge, thus compensating the individual for loss of a career while the DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to consideration of his medical condition by an MEB.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks. 

2.  There is an absence of medical documentation to support his statement that he should have been considered by an MEB.  There is also no evidence the applicant was diagnosed or referred to a medical evaluation or a physical evaluation board for consideration of any medical condition prior to his 1992 discharge from active duty.  There is evidence of record to indicate that the applicant felt himself to be sufficiently physically fit to request transfer to a Reserve unit in October 1997 and remain with that unit until July 1999.

3.  The DVA documentation provided by the applicant with his application was also carefully considered.  However, the award of a DVA rating or an increase of a DVA rating does not establish entitlement to a referral to an MEB for disability processing.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected. In this case, the applicant was properly evaluated and is being compensated for his service-connected medical conditions by the DVA.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20090007998





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ABCMR Record of Proceedings (cont)                                         AR20090007998



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