IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090021559 


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 his discharge for disability be changed to a medical retirement.

2.  The applicant states:

	a.  he was not properly diagnosed with a mood disorder;

	b.  the option to file for a medical [retirement] was not made known [to him] and he was not aware that a medical [retirement] may help him now;

	c.  he was honorably discharged for medical problems he still has today, which are getting worse;

	d.  his asthma was brought on by the oil fires and oil rain and chemicals he was exposed to;

	e.  his asthma has become more severe over the years;

	f.   his adjustment disorder has been diagnosed as post-traumatic stress disorder (PTSD);

	g.  the rash "they" call eczema is a blistery, scaly, itchy mess that goes up into his eyes, down his back, shoulders, and in his ears, which causes a chronic ear infection that renders him unable to wear a hearing aid; and

	h.  it was his desire to serve until his retirement, but hazards and his failing health in the desert made it impossible.

3.  The applicant provides:

* a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 10 May 1995
* a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated
23 May 1995
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 11 August 1995

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 enlisted in the Army National Guard (ARNG) on 17 January 1982.  He was discharged from the ARNG and he enlisted in the Regular Army on 1 April 1986.  During his ARNG service, he was trained in and awarded military occupational specialty (MOS) 63B (Light Wheeled Vehicle Mechanic).  After entering the Regular Army, he was trained in and awarded MOS 52C (Utilities Equipment Repairman).  The applicant served in Southwest Asia during the period 9 September 1990 to 22 April 1991.

3.  On 10 May 1995, an MEB found that the applicant had the following conditions, which were incurred while he was entitled to base pay and permanently aggravated by service:

* asthma
* exercise induced asthma
* fire ant allergy
* [seasonal] allergic rhinitis
* adjustment disorder
4.  The MEB also found the applicant had eczematous dermatitis with an unknown date of origin.  The MEB did not make a determination on whether this condition was incurred while entitled to base pay, existed prior to service (EPTS), or was permanently aggravated by service.

5.  In its proceedings, the MEB noted that the Comprehensive Clinical Evaluation Program (CCEP) had diagnosed asthma, adjustment disorder, and eczematous dermatitis.  

6.  The MEB recommended referral of the applicant's case to a PEB.  On 16 May 1995, the applicant indicated he agreed with the MEB's findings and recommendation.  The MEB Proceedings indicate the applicant did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

7.  On 23 May 1995, a PEB found the applicant physically unfit and recommended a combined 10 percent (%) disability rating percentage for asthma with an exercise-induced component.  The PEB further recommended the applicant be separated with severance pay.  The PEB found that the MEB diagnoses of fire ant allergy and seasonal allergic rhinitis and the CCEP diagnoses of adjustment disorder and eczematous dermatitis were not unfitting and did not give the applicant a disability rating for these conditions.  The PEB proceedings include the following statement:  "Soldier was recommended for return to full active duty by the CCEP evaluation; however, his commander states that his limitations do restrict his performance of his military duties."

8.  A DA Form 5893-R (PEBLO [PEB Liaison Officer] Counseling Checklist/
Statement), dated 26 May 1995, shows the applicant acknowledged he was counseled on the options available to him.  He concurred with the PEB's recommendation and waived a formal hearing of his case.  The PEB proceedings were approved on 31 May 1995 and the applicant was discharged on 11 August 1995 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of disability with severance pay.  He completed 9 years, 9 months, and
24 days of total active service.

9.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

10.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years active service and a disability rated at less than 30%.

11.  Army Regulation 635-40 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

12.  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 Department of Veterans Affairs Schedule for Rating Disabilities (VASRD).  Department of Defense Instruction (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.  A rating can range from 0 to 100%, rising in increments of 10%.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to change his discharge for disability to a medical retirement.

2.  The applicant underwent an MEB which recommended his referral to a PEB.  He concurred with this recommendation and indicated he did not desire to continue to serve in the U.S. Army.

3.  The PEB found the applicant to be unfit for further military service and assigned him a disability rating percentage of 10% for asthma with an exercise-induced component.  The PEB recommended the applicant's disability separation with severance pay, if authorized.  The applicant concurred with the recommendation.

4.  The applicant states he was not properly diagnosed with a mood disorder.  The evidence of record shows he was diagnosed with adjustment disorder and the PEB found this condition did not render him unfit for further military service.

5.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations; the applicant concurred with the PEB's recommendation to separate him with severance pay.  The applicant has provided no evidence to refute the rating he received by the PEB.  Accordingly, he is not entitled to correction of his record to change his discharge for disability to a medical retirement.

6.  In view of the foregoing, 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)                                         AR20090021559



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ABCMR Record of Proceedings (cont)                                         AR20090021559



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