BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090019916 


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 to have his discharge changed to a medical retirement.

2.  The applicant states a 1975 chlorine gas incident affected his lungs and caused him difficulty throughout his service.  As a result of his inability to walk distances, he was assigned as the First Sergeant's driver.  He states after separation, the Department of Veterans Affairs (VA) rated him at 30-percent disabled and subsequently increased his disability rating to 60 percent and then to 100 percent.

3.  The applicant provides a copy of the VA Rating Decision, dated 20 August 2009, 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 on 28 June 1974.  A Standard Form 88 (Report of Medical Examination) documenting the applicant's enlistment medical examination, dated 20 June 1974, shows no disqualifying defects or communicable diseases were noted and he was cleared for enlistment by the examining physician.

3.  The applicant's record is void of any medical treatment records indicating he suffered from any disqualifying physical or mental condition that would have supported his separation processing through medical channels during his active duty tenure.

4.  A DA Form 3082 (Statement of Medical Condition) completed by the applicant during his discharge processing on 27 June 1977 contains his confirmation he underwent a separation medical examination more than 3 working days prior to his departure from his place of separation and to the best of his knowledge there had been no change in his medical condition since his last separation examination.

5.  On 27 June 1977, the applicant was released from active duty after completing 3 years of active military service and transferred to the U.S. Army Reserve to complete his military service obligation.  His DD Form 214 (Report of Separation from Active Duty) shows he was separated under the provisions of chapter 2, Army Regulation 635-200 (Personnel Separations), by reason of completion of required active service.

6.  The record contains a DA Form 3725 (Army Reserve Status and Address Verification), dated 6 August 1977, in which the applicant certifies to the best of his knowledge and belief he has no medical condition or physical defect that would prevent his performance of active Federal service.

7.  The applicant provides a VA Rating Decision, dated 20 August 2009, which shows the applicant was granted service connection for "dysthymic disorder," which was previously rated as "acquired psychiatric disorder," and granted a 
70-percent disability rating from 2 February 2005 and for "asthma" rated at 
30-percent disabled from 30 November 1998, 60-percent disabled from 28 September 2001, and 30-percent disabled from 23 June 2008.  It further shows the applicant received the following combined ratings on the dates indicated:


* 30 percent, 30 November 1998
* 60 percent, 28 September 2001
* 90 percent, 2 February 2005
* 80 percent, 23 June 2008

8.  The record is void of any medical documents confirming treatment sought or received by the applicant for exposure to a chlorine gas agent while on active duty or subsequently through the VA.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.

10.  Chapter 3 of Army Regulation 635-40 contains guidance on standards of unfitness because of physical disability.  It states that the mere presence of impairment does not, of itself, 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 or her office, grade, rank, or rating.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

11.  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.

12.  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 or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards assigned by proper military medical authorities at the time of separation.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical retirement was carefully considered.  However, there is insufficient evidence to support his claim.

2.  By regulation, the mere presence of impairment does not, in and of itself, 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 or her office, grade, rank, or rating.

3.  The medical evidence of record and the independent medical evidence provided by the applicant fail to show he suffered from or was treated for any medical condition that disqualified him from further service and/or supported his separation processing through the PDES at the time of his discharge.  Absent such evidence, there is an insufficient evidentiary basis to support granting a medical retirement or PDES review.

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)                                         AR20090019916



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ABCMR Record of Proceedings (cont)                                         AR20090019916



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