IN THE CASE OF:	

		BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090010253 


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, change of his honorable discharge to a medical retirement.

2.  The applicant states that he was denied a Medical Evaluation Board (MEBD) and a Physical Evaluation Board (PEB) while on active duty.  He maintains that he was also denied reenlistment because of being diagnosed with a service-connected disability.  He offers that he received a 60 percent disability rating percentage for his skin condition by the Department of Veterans Affairs (VA).

3.  The applicant provides numerous medical documents 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 record shows he enlisted in the Regular Army (RA) on
21 June 2001.  He was honorably released from active duty on 20 June 2005 after completing 4 years of active federal service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

3.  The applicant provided numerous copies of his medical records that show he was seen at the servicing medical clinic on the following dates for the following conditions:

   a.  29 June 2001, head cold; 3 July 2001, flu symptoms ; 18 July 2001, lab results; 6 September 2001, heat injury; 16 November 2001, flu; 10 December 2001, X-ray left knee, and 13 December 2002, rash on inner thigh.

   b.  11 January 2002, flu; 16 January 2002, sore throat and vomiting; 12 March 2002, vomiting;  25 April 2002, left knee; 14 May 2002, left knee; 17 May 2002, head congestion, fatigue, and mucus buildup in lungs; 28 June 2002, psoriasis of the scalp, prescribed medication; 20 August 2002, left knee pain, 15 October 2002, cough; 17 October 2002, flu symptoms; 18 October 2002, nausea and flu symptoms; 3 December 2002, refill on prescription; 4 December 2002, eye appointment; 17 December 2002, head cold and eyes; and 19 December 2002, eye appointment.

   c.  27 January 2003, eye examination; 10 February 2003, psoriasis and eye examination, refilled prescription; 28 February 2003, elbow burn; 3 March 2003, burn on right elbow; 7 March 2003, follow-up for elbow burn; 21 March 2003, right elbow swollen; 2 April 2003, sore throat and flu symptoms; 3 May 2003, flu like symptoms; 9 May 2003, right ankle injury; 13 May 2003, allergy symptoms; 29 May 2003, cold symptoms; 30 May 2003, sore throat; 2 August 2003, seizure disorders; 2 June 2003, nausea; 3 June 2003, follow up appointment;  4 August 2003, hospitalized for seizures; and 11 August 2003, released from hospital where numerous studies were conducted for seizure disorder.

   d.  3 August 2004, referral to dermatology for psoriasis; 14 September 2004, sinuses; 16 September 2004, stomach problems; 1 October 2004, sinus pressure; 1 November 2004, HIV test; 24 November 2003, EKG (electrocardiogram), and 26 November 2003 sinus problems.
    
   e.  3 May 2005, follow-up for neck.

4.  The applicant's medical records show he received three DA Forms 3349 (Physical Profile) placing him on temporary profile:  24 July 2001 to 30 August 
2001 for mononucleosis; 20 August 2002 to 4 September 2002 for patella femoral pain; and 12 August 2003 to 12 October 2003 for seizure disorder.  Additionally, on 14 May 2002, the applicant received a profile on a DD Form 689 (Individual Sick Slip) for no running or marching until 1 June 2002.

5.  On 2 May 2005, the applicant underwent a separation medical examination which cleared him for separation.

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service.

7.  Stuttgart Transition Center Orders Number 108-002, dated 18 April 2005, released the applicant from active duty not by reason of physical disability and assigned him to the USAR Control Group (Reinforcement), effective 20 June 2005.

8.  Orders M-11-603268, dated 22 November 2006, show that the applicant was ordered to active duty for mobilization processing with a reporting date of no later than 14 January 2007.

9.  During the applicant's pre-deployment health assessment it was noted that he had a history of epilepsy which was originally diagnosed as idiopathic epilepsy.  He was determined to be non-deployable.  On 16 January 2007, he was placed on profile for seizure disorder.

10.  A memorandum, dated 16 January 2007, stated that the applicant had an uncontrolled seizure disorder that failed to meet the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  The commander requested and it was subsequently granted that the applicant be removed from mobilization duty due to an uncontrolled seizure disorder which was discovered during Soldier Readiness Processing.

11.  Headquarters, U.S. Army Training Center, Fort Jackson, SC, Orders
030-171, dated 30 January 2007, released the applicant from active duty, effective 3 February 2007, by reason of physical disability and reassigned him to the USAR Control Group (Reinforcement).

12.  Army Regulation 40-501 states, in pertinent part, that seizure disorders and epilepsy by themselves are not disqualifying unless they are manifestations of 
epilepsy.  However, they may be considered along with other disabilities in judging fitness.  In general, epilepsy is disqualifying unless the Soldier can be maintained free of clinical seizures of all types by nontoxic doses of medications.

13.  The regulation further states that all active duty Soldiers with suspected epilepsy must be evaluated by a neurologist who will determine whether epilepsy exists and whether the Soldier should be given a trial of therapy on active duty or referred directly to an MEBD for referral to a PEB.  In making the determination, the neurologist may consider the underlying cause, electroencephalogram (EEG) findings, type of seizure, duration of epilepsy, family history, Soldier's likelihood of compliance with therapeutic program, absence of substance abuse, or any other clinical factor influencing the probability of control or the Soldier's ability to perform duty during the trial of treatment.

14.  If a trial of duty on treatment is elected by the neurologist, the Soldier will be given a temporary P-3 profile with as few restrictions as possible.  Once the Soldier has been seizure-free for 1 year, the profile may be reduced to a P-2 profile with restrictions specifying no assignment to an area where medical treatment is not available.  If seizures recur beyond 6 months after the initiation of treatment, the Soldier will be referred to an MEBD.

15.  Army Regulation 40-501, paragraph 3-38 (Skin and cellular tissues) states, in pertinent part, that extensive psoriasis will be referred to an MEBD if it cannot be controlled by treatment.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until Soldier is scheduled for separation, is an indication that the individual is fit.

17.  This same regulation requires commanders to refer a Soldier to the servicing medical treatment facility (MTF) for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.  The MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  The commander will 
advise the Soldier's commander of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEBD.
18.  Additionally, paragraph 4-8 (Referral by commanders) states that when a commander believes that a Soldier of his or her command is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability, the commander will refer the Soldier to the responsible MTF for evaluation.  The request for evaluation will be in writing and will state the commander's reasons for believing that the Soldier is unable to perform his or her duties.  

19.  Title 38, U.S. Code, sections 1110 and 1131, 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

DISCUSSION AND CONCLUSIONS:

1.  The applicant maintains that he was denied reenlistment because of his medical condition.  However, he has provided no evidence to substantiate his claim.

2.  The applicant’s medical records show that he was diagnosed with the skin disease of psoriasis.  However, based on the sporadic appointments listed in his medical records for complications occurring because of this condition, it appears that his skin condition was being properly controlled with treatment and no MEBD was warranted.  Additionally, the fact that he was medically cleared for separation and his separation orders show that he was separated "not by reason of disability" is an indication that he was physically fit to perform his duties at the time of separation.

3.  Evidence of record shows that the applicant received a temporary profile in August 2003 after being released from the hospital where numerous studies were conducted for his seizure disorder.  There is no indication that the applicant 
suffered with another seizure from the time he was administered the temporary profile until the time he was separated in June 2005.  Therefore, since he was seizure-free for more than 1 year, referral to an MEBD was not warranted.

4.  Additionally, the fact that the applicant was determined to be non-deployable at the Soldier Readiness Processing Center and released from active duty in January 2007 has no bearing on his request for medical retirement.  There is no evidence that he was separated because he could not perform his duties.  He was separated because he was not deployable and the Army would take no chances with his health.  He has provided no medical evidence to demonstrate an inequity or injustice in the medical treatment received in service.  Absent evidence to the contrary, the applicant was physically fit at the time of his separation from active service on 20 June 2005.  He has provided no evidence to indicate otherwise.  

5.  The applicant implies that since he received a 60 percent disability rating percentage from VA for his skin condition then he should receive a similar rating and a subsequent medical retirement.  The VA is not required by law to determine medical unfitness for further military service.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

6.  Furthermore, an award of a VA disability rating subsequent to separation from the service does not establish entitlement an individual to medical retirement or separation.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  On the contrary, the Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  Consequently, 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.



      _______ _   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)                                         AR20090010253



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ABCMR Record of Proceedings (cont)                                         AR20090010253



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