IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090009344 


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 the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from “disability, severance pay” to a medical retirement. 

2.  The applicant states, in effect, that his medical records should be reviewed as his medical condition limits him to the performance of certain jobs.  His medical condition occurred while on active duty and it has progressively gotten worse and requires constant medical attention.  

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show he enlisted in the Regular Army (RA) for a period of 4 years on 25 November 1992.  He held military occupational specialty (MOS) 54B (Chemical Operations Specialist, later converted to MOS 74D).  He executed several reenlistments in the RA including a 2-year reenlistment on      18 June 1996, a 5-year reenlistment on 21 June 1997, a 2-year reenlistment on 17 April 2003, and an indefinite reenlistment on 15 January 2004.  

3.  The applicant’s records also show he served in Iraq from 22 January 2003 to 26 August 2003.  He attained the rank/grade of staff sergeant (SSG)/E-6.

4.  The applicant's medical records show he was previously diagnosed with severe obstructive sleep apnea despite having an uvulopalatopharyngoplasty performed at Fort Stewart, GA, in 1997.  He noted some initial improvement after the surgery but over time, his snoring and apneic events increased.  This was noted by his team members during deployment to Iraq.  When he returned he snored loud, witnessed apneic events, and suffered excessive daytime sleepiness.  He had a sleep study done in May 2004 that showed 92.4 percent obstructive apneas per hour with a low saturation of 80 percent.  He had a follow- up study that showed good response to nasal Continuous Positive Airway Pressure (CPAP) at 16 cm of water.  He had been using his nasal CPAP machine with improvement in his daytime sleepiness.  The medical records further show that he was not interested in pursuing therapy with maxillary or mandibular advancement surgery and that given his obstructive sleep apnea and need for high pressure CPAP, he was issued a permanent physical profile and recommended for possible entry into the Army Physical Disability Evaluation System (PDES). 

5.  On 24 July 2004, by memorandum, the applicant's immediate commander remarked that the applicant was incapable of reasonably performing his duties as a 74D in a field environment due to his severe obstructive sleep apnea and that his illness required long term therapy on a CPAP machine.

6.  On 17 November 2004, the applicant underwent a complete physical evaluation.  His Narrative Summary (NARSUM), dictated on 30 November 2004, shows he had significant daytime sleepiness with an Epworth Sleepiness score of 20 when he was not on his nasal CPAP and that when his current nasal CPAP was at a setting of 16 cm, he was able to perform all duties and all functionalities. The attending physician concluded that the applicant's obstructive sleep apnea or sleep disorder that caused daytime hypersomnolence could not be corrected without the use of nasal continuous positive airway.  He was referred to a Medical Evaluation Board (MEBD). 

7.  On 14 December 2004, an MEBD convened at Winn Army Community Hospital, Fort Stewart, GA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant’s obstructive sleep apnea was severe.  The MEBD recommended that he be referred to a Physical Evaluation Board (PEB).  The applicant agreed with the MEBD’s findings and recommendation and indicated that he did not desire to continue on active duty. 

8.  On 13 January 2005, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to obstructive sleep apnea, CPAP therapy, rated as mild industrial impairment.  The PEB noted that it must rate sleep apnea under the Department of Defense Instruction (DODI) 1332.39, E2.A1.2.21 (page 40) and that this paragraph directed that compensation be awarded based upon the industrial impairment caused by the Soldier's sleep apnea.  The CPAP machine was not part of the rating criteria.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 0 percent disability rating for code 6847 (for the condition of obstructive sleep apnea shown on his NARSUM).  The PEB recommended that the applicant be separated with entitlement to severance pay.

9.  On 19 January 2005, the applicant concurred with the PEB’s finding and recommendation, waived his right to a formal hearing, and elected to receive disability severance pay.  He and his counselor authenticated the DA Form 199 and placed their signatures in the appropriate places.  Additionally, the DA Form 199 shows the following entry as an indication of proper counseling by his counselor:

I have informed the Soldier of the findings and recommendations of the PEB and explained to him the result of the findings and recommendations and his legal rights pertaining thereto.  The Soldier has made the election(s) shown above.

10.  On 17 March 2005, the applicant was honorably discharged in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay.  The DD Form 214 he was issued shows he was awarded $66,700.00 in severance pay.  




11.  Title 10, U.S. Code (USC), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

12.  DODI 1332.38 implements policy and prescribes procedures for retiring or separating service members because of physical disability.  This instruction provides, in pertinent part, that a service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his office, grade, rank, or duties, to include duties during a remaining period of Reserve obligation.  All relevant evidence will be considered in assessing service member fitness.  To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness.  Paragraph E4.1. provides a listing of medical conditions that are cause for referral to the physical disability evaluation system.  Paragraph E4.12.10 lists sleep apnea syndrome when complicated by requirement for an appliance, such as CPAP, for control.

13.  DODI 1332.39 implements policy, assigns responsibilities, and prescribes procedures, under the authority of DOD Directive 1332.18, 4 November 1996, for rating disabilities of Service members determined to be physically unfit and who are eligible for disability separation or retirement under Title 10, USC.  Paragraph E.2.A1.2.21 states that the VASRD lists four percentage rating options: 0 percent; 30 percent, 50 percent, and 100 percent under code 6847 (sleep apnea), corresponding to assessed levels of disability relative to civilian earning capacity due to Sleep Apnea.  The following interpretation will apply:  Total industrial impairment 100%; Considerable industrial impairment 50%; Definite industrial impairment 30%, and Mild industrial impairment 0%.

14.  Army Regulation 635-40 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 chapter 3 of Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

15.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  DODI 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.  

16.  The VASRD contains the rating criteria that the PEB uses to assign ratings.  VASRD Code 6847, Sleep Apnea Syndrome (Obstructive, Central, Mixed), assigns a rating of 100 percent for chronic respiratory failure with carbon dioxide retention or corpulmonale, or requires tracheotomy; a rating of 50 percent for a condition that requires the use of breathing assistance device such as CPAP; a rating of 30 percent when the condition has a persistent day-time hyper somnolence; and a rating of 0% for an asymptomatic condition with documented sleep disorder breathing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation should be corrected to show he was medically retired instead of honorably separated for disability with entitlement to severance pay.

2.  The evidence of record shows the applicant underwent a thorough medical evaluation that resulted in a diagnosis of the medically unacceptable conditions of obstructive sleep apnea.  He subsequently underwent an MEBD which recommended that he be referred to a PEB.  He agreed with this recommendation and elected not to remain on active duty.  The PEB considered the sleep apnea condition listed by the MEB and found his condition prevented him from performing his duties.  The PEB thus determined he was physically unfit for further military service and recommended separation with entitlement to severance pay.  He was counseled and concurred with the PEB's findings and recommendations and, accordingly, he was discharged and received severance pay.

3.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation.  The PEB noted that it must rate sleep apnea under the DODI 1332.39, E2.A1.2.21 which directed that compensation be awarded based upon the industrial impairment caused by the Soldier's impairment caused by his sleep apnea and that the CPAP machine was not part of the rating criteria.  Therefore, it appears the applicant was properly rated by the PEB.  There is no evidence to support a higher rating or medical retirement.  Since he was rated at less than 30 percent, he does not qualify for a medical retirement.
4.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  It is acknowledged that the applicant’s condition may have worsened since his separation; however, the Army’s rating is dependent on the severity of the condition at the time of separation.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting their disability rating.

5.  There is no error or injustice in this case.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant him the 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.




      _______ _   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)                                         AR20090009344



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ABCMR Record of Proceedings (cont)                                         AR20090009344



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