IN THE CASE OF:	

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090012995 


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 medical retirement.  

2.  The applicant states he should have been medically retired instead of discharged.  He claims to have had a difficult time with severe asthma and blood pressure while on active duty.  He states he was treated several times and when he was discharged, he immediately received a 40 percent (%) disability rating percentage from the Department of Veterans Affairs (VA).  He states if the doctors had done their job, he would have been medically boarded and retired from service.

3.  The applicant provides a DD Form 214 and refers to a VA award letter that wasn't included with the 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 record shows the applicant enlisted in the Regular Army on 4 November 1993.  He was trained in and awarded military occupational specialty (MOS) 68B (Aircraft Power Plant Repairer) and the highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.

3.  The record is void of medical treatment records or other documentation showing the applicant suffered from or was treated for a disabling physical condition that would have required his separation processing through the Army's Physical Disability Evaluation System (PDES).

4.  On 3 January 2000, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required service.  The DD Form 214 he was issued shows he completed 6 years and 2 months of active military service.  

5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES 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 or her office, grade, rank, or rating.  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.  Separation by reason of disability requires processing through the PDES.

6.  Chapter 3 of this regulation contains guidance on standards of unfitness because of physical disability.  It states the mere presence of impairment does not 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 their office, grade, rank, or rating.

7.  Paragraph 3-2 of the same regulation contains guidance on presumption of fitness.  It states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is 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 or retirement for reasons other than 
physical disability, continued performance of assigned duty commensurate with 
his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  

8.  This regulation also stipulates the presumption of fitness may be overcome if the evidence establishes the Soldier was physically unable to perform his/her duties for a period of time because of disability.  There must be a causative relationship between the inadequate duty performance and unfitting medical condition(s).

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should have been medically retired instead of REFRAD in 2000 has been carefully considered.  However, by regulation, the mere presence of impairment does not 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/her office, grade, rank, or rating.

2.  The regulation also stipulates that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that 
the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes the Soldier was physically unable to perform his/her duties for a 
period of time because of disability.  There must be a causative relationship between the inadequate duty performance and unfitting medical condition(s).

3.  The applicant does not claim and the record does not show his asthma condition and blood pressure conditions prevented him for adequately performing his military duties.




4.  Further, the record is void of any indication the applicant suffered from a disabling condition that prevented his further service or would have supported his separation processing through the Army's PDES at the time of his REFRAD.  As a result, the evidence is not sufficient to overcome the presumption of fitness established by his satisfactory service through his REFRAD date.  Therefore, the evidence is not sufficient to grant the requested relief.

5.  The applicant is advised 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon its own examinations and findings.  However, these changes don't call into question the application of the fitness standards applied by military medical authorities at the time of his REFRAD.  As a result, the VA is the appropriate agency to provide him medical treatment and disability compensation for service-connected medical conditions that were not found permanently disabling at the time of his REFRAD, as it appears they are doing.

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)                                         AR20090012995



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012995



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1