IN THE CASE OF:	  

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20100000590 


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 submits his request through counsel.

2.  The applicant defers his statement to counsel.

3.  The applicant provides additional documentary evidence through counsel in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for correction of his records to show he was medically retired on 31 October 1992.

2.  Counsel provides a 30-page brief in which he submits his argument in the form of an executive summary, procedural history, standards of review, a summary of the Board's previous denials, and a declaration by an expert witness. Counsel argues that the applicant should have been found medically unfit due to asthma and gastro-esophageal reflux disease (GERD).  He should have been referred to a medical evaluation board (MEBD), and the MEBD should have referred him to a physical evaluation board (PEB), and the PEB should have granted him a disability rating that would have allowed him to be medically retired.  He bases his argument on the following:

	a.  A Reserve Component Major (MAJ) Army Nurse Corps (expert witness) reviewed the applicant's medical and personnel records and determined he should have been fully medically retired by reason of unfitness due to asthma, GERD, hypertension, chest pain, and left arm numbness; 

	b.  The advisory opinion submitted by the Army Review Board Agency's medical advisor indicates the medical doctor did not evaluate the applicant's medical records and confused him with someone else. 

	c.  Medical documents and other documents that were not previously considered combined with those previously considered support a conclusion that the applicant should have been medically retired. 

	d.  The Army improperly separated the applicant and transferred him to the Individual Ready Reserve (IRR).

	e.  The Board committed a mistake of law or manifest error when it denied the applicant's claims.

	f.  Counsel's personal observations of the applicant's earlier years were of a healthy, fit individual and now the applicant is ill and he lives in an assisted living facility with no income other than that from the Department of Veterans Affairs (DVA), since the Army stopped his Voluntary Separation Incentive (VSI) pay which he was to receive for another 23 years.

3.  Counsel provides the following additional documentary evidence in the form of exhibits in support of the applicant's request:

	a.  Exhibit A:  A copy of a declaration by MAJ J-------, dated 12 February 2010.  

	b.  Exhibit B:  A copy of the applicant's Pulmonary Function Laboratory Report, dated 26 September 1990, Womack Army Community Hospital (WACH), Fort Bragg, NC.

	c.  Exhibit C:  A copy of Orders 190-110, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, on 4 October 1990.

	d.  Exhibit D:  A copy of a record of medical care, dated 7 December 1990.

	e.  Exhibit E:  A copy of a DA Form 5570 (Health Questionnaire Dental Treatment), dated 4 November 1991.

	f.  Exhibit F:  A copy of a Standard Form (SF) 600 (Chronological Record of Medical Care), dated 24 February 1992.
	g.  Exhibit G:  A copy of a DA Form 3349 (Physical Profile), dated 20 May 1992.

	h.  Exhibit H:  A copy of an SF 600, dated 26 May 1992.

	i.  Exhibit I:  A copy of a memorandum, dated 9 September 1997, from the U.S. Army Reserve Personnel Center, St. Louis, MO, titled: Notification of Medical Disqualification.

	j.  Exhibit J:  A copy of a memorandum, dated 21 September 1998, from the Medical Advisor, Department of the Army Review Boards Agency, titled: Advisory Opinion on [Applicant].

	k.  Exhibit K:  A copy of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 October 1992.

	l.  Exhibit L:  A copy of an SF 600, dated 25 February 1992.

	m.  Exhibit M:  A copy of an SF 513 (Consultation Sheet), dated 11 September 1992.

	n.  Exhibit N:  A copy of a DA Form 4700 (Medical Record - Supplemental Data), dated 11 March 1981.  

	o.  Exhibit O:  A copy of an Inpatient History Summary, dated 9 September 1992 and a DA Form 3647 (Inpatient Treatment Record Cover Sheet), dated 
23 October 1992 

	p.  Exhibit P:  A copy of Orders 259-153, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 15 September 1992.

	q.  Exhibit Q:  A copy of a DA Form 1059 (Service School Academic Evaluation Report), dated 14 May 1980, and copies of the applicant's previously-reviewed Officer Evaluation Reports (OERs) for the periods 14 May 1981 through 
1 December 1981, 13 July 1984 through 27 January 1985, 28 January 1985 through 27 January 1986, 8 January 1988 through 7 January 1989, 8 January 1989 through 17 July 1989, and 18 July 1989 through 25 April 1990.

	r.  Exhibit R:  A copy of the Methacholine Bronchoprovcation Testing Report, dated 26 February 1992.

	s.  Exhibit S:  A copy of an SF 510 (Nursing Notes), dated 11 September 1992.
	t.  Exhibit T:  A copy of the applicant's request for unqualified resignation, dated 13 July 1992.

	u.  Exhibit U:  A copy of an SF 510, dated between 9 and 11 September 1992.

	v.  Exhibit V:  A copy of Table 7-1 (Physical Profile Functional Capacity Guide) taken from Army Regulation (AR) 40-501 (Standards of Medical Fitness), undated.

4.  Counsel also provides a voluminous copy of the applicant's various medical records, charts, examinations, consults, and other medically related documents, dated on miscellaneous dates throughout his military service.  He also provides a voluminous copy of the applicant's DVA and/or Social Security Administration (SSA) medical charts, reports, psychological and/or mental evaluations, and other medically related documents, dated on miscellaneous dates subsequent to his discharge. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's cases by the ABCMR in Docket Number AR1999025606 on 13 May 1999 and Docket Number AR20000050139 on 29 March 2001.  

2.  On 15 February 2010, the applicant submitted, through counsel, another request for reconsideration.  His submission contains copies of previously submitted medical and/or personnel documents that were previously considered by the ABCMR.  However, his request also contains a declaration by a Reserve Component MAJ, Army Nurse Corps, which was not previously considered; therefore, it is considered new evidence and, as an exception to policy, warrants reconsideration by the Board.

3.  With prior enlisted service, the applicant was appointed as a second lieutenant in the Regular Army Air Defense Artillery following graduation from the U.S. Military Academy and executed an oath of office on 22 December 1979.  He was subsequently transferred into the Armor branch, completed several training courses, served in various staff and/or command positions within and outside of the continental United States.  He was promoted to MAJ on 1 November 1991.

4.  On 10 July 1992, by memorandum, the applicant requested unqualified resignation from the Army, under the Fiscal Year (FY92) Voluntary Early Transition Program with entitlement to VSI benefits.  The applicant's battalion commander recommended approval of his request and indicated the applicant was physically qualified for separation pending VA determination of an asthmatic condition.  The commander also indicated the applicant had been counseled and was fully aware of the consequences of his decision and that the applicant was confident that this decision was in his best interest to pursue a civilian career.

5.  On 14 September 1992, the applicant's request was approved.  His discharge under the VSI program was contingent upon incurring service obligations in addition to any existing statutory military service obligations in the IRR.  

6.  On 30 October 1992, the applicant submitted a DA Form 4187 (Personnel Action) wherein he agreed to serve in the Ready Reserve for a period of not less than 3 years. 

7.  On 31 October 1992, the applicant was honorably discharged.

8.  His DD Form 214 shows he was discharged under the VSI Program with entitlement to $15,075.65 per year for 28 years.  He completed 12 years, 10 months, and 9 days of creditable active service and he had completed 1 year and 7 months of prior active service.

9.  On 1 November 1992, he was appointed as an Armor MAJ in the U.S. Army Reserve (USAR) and executed an oath of office on the same date. 

10.  On 9 September 1997, by memorandum, the USAR Personnel Center, St. Louis, notified the applicant that a review of his medical records revealed he did not meet the standards for retention in the USAR by reason of bipolar disorder, chronic asthma, hypertension, low blood pressure, and sleep disorder.  He was further instructed to elect an honorable discharge or a transfer to the Retired Reserve.  His election is not available for review with this case; however, it appears he elected to transfer to the Retired Reserve. 

11.  On 18 June 1998, by letter, the U.S. Total Army Personnel Command, St. Louis, notified the applicant that his records were considered for promotion to lieutenant colonel by a mandatory DA Reserve Components Selection Board (RCSB) but he was not selected.  He was also notified that he would have a second opportunity for consideration by the next RCSB.

12.  On 24 September 1998, the U.S. Army Reserve Personnel Command, St. Louis, MO, published Orders C-09-833678, transferring the applicant to the Retired Reserve by reason of medical disqualification.

13.  The applicant's records reveal he received the following ratings on his last five OERs:

	a.  An Annual OER from 8 August 1988 through 7 January 1989 shows he performed as a company commander.  His rater rated him as always exceeded requirements and his senior rater indicated his performance was terrific. 

	b.  A Change of Rater OER from 8 January 1989 through 17 July 1989 shows he performed as a company commander.  The applicant's rater stated "Another great job" and rated him as always exceeded requirements.  His senior rater stated he "continued to perform superbly."

	c.  A Permanent Change of Station OER from 18 July 1989 through 25 April 1990 shows he performed as a company commander.  His rater stated he did "an excellent job" and rated him as always exceeded requirements.  His senior rater stated that he "did an outstanding job." 

	d.  An Annual OER from 16 April 1990 through 25 April 1991 shows he performed as an operations officer.  His rater stated that he "has done an absolutely superb job" and rated him as always exceeded requirements.  His senior rater stated that "his relentless approach to his duties, coupled with his skill in handling many missions simultaneously will serve him well."

	e   An Annual OER from 26 April 1991 through 25 April 1992 shows he performed as an Active Component Mobilization Plans Officer.  His rater indicated that he had a physical profile dated April 1992, that he was undergoing medical evaluation for profile determination, and that his physical condition did not impair his performance.  His rater also indicated that the applicant had proven himself to be an extremely valuable asset to his section and rated him as always exceeded requirements.  His senior rater described him as a hard-working, dedicated, and sincere officer who attended mobilization planner school and completed the requisite homework to bring him up to speed.

	f.  His final OER from 26 April 1992 through 31 October 1992 shows he performed as a Mobilization Plans Officer.  His rater stated that he passed his Army Physical Fitness Test in June 1992 and indicated that the applicant's performance had been professional in every respect, and rated him as exceeded requirements.  His senior rater stated that he performed all duties with attention to detail and a sense of urgency.

14.  His records contain Order Number 156-030, issued by the U.S. Total Army Personnel Command, dated 11 October 1991, that announced his promotion to MAJ, effective 1 November 1991.  
15.  Counsel submits the following declaration written by a Reserve Component MAJ Army Nurse Corps (expert witness) who reviewed the applicant's medical and personnel records and opined the following:

	a.  The applicant developed asthma during combat simulation training at the special forces basic course.  A pulmonary function laboratory report demonstrated that he performed below expected standards for pulmonary functions.  He was eliminated from the course due to his asthmatic condition.  He was reassigned to Fort Knox, KY, where he was diagnosed as having exercise -induced asthma with probable cold triggers.  A U.S. Air Force (USAF) doctor concurred.  In February 1992, the doctor positively diagnosed him with asthma.  He was issued a permanent physical profile which excused him from the 2-mile run.  The regulation in effect at the time required that individuals undergo an MEBD if they were diagnosed with asthma of sufficient severity wherein it interfered with satisfactory performance of duty or the individual had frequent attacks that were not controlled by oral bronchodilators or inhaled medications.

	b.  A USAF doctor also diagnosed the applicant as having GERD of a mild to moderate severity, a condition that was also related to his asthma.  He also suffered from hypertension.  Although any one of these three conditions could have disqualified him from further service, a member may be found unfit because of disability resulting from the overall effect of two or more impairments even though no one of them alone would cause unfitness.

	c.  The applicant was admitted to the hospital in September 1992 for chest pain, hypertension, and left arm numbness.  This action should have precluded him from being discharged in October 1992.  He was still receiving medical treatment for these conditions at the time of discharge.  He was also required to follow up for additional medical attention; yet, his command separated him while these medical issues were still pending.  The requirement for further medical care indicates that he was not medically fit for discharge.

	d.  The applicant's eventual discharge from the USAR Control Group (IRR) by reason of medical unfitness supports a conclusion that he was not fit for duty when the Army discharged him. 

16.  Counsel submitted copies of previously submitted DVA, SSA, and State medical facilities' reports, medical records, charts, examinations, consults, psychological and/or mental evaluations, and other medically related documents, dated on miscellaneous dates subsequent to his discharge.  The following previously-submitted documents show:

	a.  A chronological record of medical care, dated 25 February 1992, indicates the applicant showed an impression of asthma and discussed the use of various bronchial inhalers.  Certain parts of this document are highlighted. 

	b.  A pulmonary function report, dated 26 February 1992, cited an impression of “Positive Methacholine Bronchoprovocation test consistent with asthma.”  The report is signed by USAF MAJ P__________. 

	c.  A physical profile, dated 20 May 1992, that shows the applicant had a permanent physical profile that assigned the number "2" in the physical capacity or stamina part of his physical profile serial system or PULHES.  This classification specified that he was permitted to walk or run at his own pace and distance, participate in unlimited walking, perform all functional activities and physical fitness tests by walking.

	d.  A record of medical care, dated 24 February 1992, shows he was evaluated for exercise induced asthma, mild to moderate GERD, and post nasal drip.  

	e.  A record of medical care, dated 26 May 1992, signed by the USAF MAJ indicated the applicant reported no clear episodes of asthma exacerbation since his last visit.  The applicant described pain in "L" side "tightening up" which was painful and seemed to respond to "MDI."  No nocturnal episodes.”  The doctor recorded impressions of asthma and indicated that he was on inhaled steroids.  He had an inability to meet minimum standards for aerobics.”

	f.  In the original case, an advisory opinion, dated 21 September 1998, authored by the ARBA medical advisor opined that the applicant had a myriad of medical complaints of a minor nature and that he had outstanding performance for several years.  He was recommended for a physical profile with limitations which by itself did not determine a need for an MEBD.  It was noted the medical advisor erroneously listed the applicant's branch as special forces instead of armor and that he was issued a P3 instead of a P2 profile.  This may have been caused by the volume of paperwork that was submitted by the applicant at the time. 

	g.  An inpatient treatment record cover sheet, dated 23 October 1992, shows a diagnosis of atypical chest pain, hypertension, asthma, and left arm numbness.

	h.  An automated record of inpatient medical pain shows the applicant was admitted to the hospital on 9 September 1992 and discharged on 11 September 1992 with diagnoses of atypical chest pain, hypertension, asthma and left arm numbness – resolved.
	i.  Copies of OERs for various periods with certain entries highlighted that show “Officer is undergoing medical evaluation for PROFILE determination"; "Officer's physical condition does not impair job performance”; "The most physically fit officer I have ever met"; "Maintains the highest level of physical fitness possible"; "Excellent physical condition"; "outstanding condition"; and "extremely fit, imposing physical appearance, meets body fat standards."

17.  The National Institute of Health makes the following definitions:

	a.  Asthma is a disease that affects the respiratory system.  The respiratory system includes the mouth, nose, throat, tubes leading to the lungs, and the lungs.  The purpose of the respiratory system is to bring oxygen to the body and remove carbon dioxide from the body.  When someone has asthma, they breathe normally most of the time; however, sometimes, they have an asthma attack or an asthma flare.  When an asthma attack occurs, the tubes carrying the air into the lungs become narrowed making it difficult to breathe.  Sometimes extra mucus is produced in the airways making it sticky.  A person with asthma may experience breathing difficulties or coughing at any time.  But there are some things that make problems more likely.  These include pollen, dust, air pollution, smoke, exercise, cold air, or illness such as a cold.  Different treatments have been long available for asthma.  Some may take daily medicine to prevent a flare while others may be prescribed an inhaled medication.  Some inhaled medications are taken before exposure to triggers while others are taken when an attack occurs to quickly open the air passages making it easier to breathe.

	b.  Heartburn is an irritation of the esophagus caused by acid that refluxes (comes up) from the stomach. Heartburn is also a symptom of a more serious gastroesophageal reflux disease, or GERD.  When swallowing, food passes down the throat and through the esophagus to the stomach.  Normally, a muscular valve called the lower esophageal sphincter (LES) opens to allow food into the stomach (or to permit belching); then it closes again.  Then the stomach releases strong acids to help break down the food.  But if the lower esophageal sphincter opens too often or does not close tight enough, stomach acid can reflux or seep back into the esophagus, damaging it and causing the burning sensation we know as heartburn.  However, if heartburn symptoms occur frequently and persistently, it may be a sign of a more serious problem, such as GERD which is a chronic reflux of acid into the esophagus.

	c.  Blood pressure is the force of blood pushing against blood vessel walls. The heart pumps blood into the arteries (blood vessels) which carry the blood throughout the body.  High blood pressure, also called hypertension, is dangerous because it makes the heart work harder to pump blood to the body and it contributes to hardening of the arteries or atherosclerosis and the development of heart failure.  The exact causes of high blood pressure are not known; however, several factors and conditions may play a role in its development such as smoking, being overweight or obese; lack of physical activity, too much salt in the diet, too much alcohol consumption, stress, genetics, older age, family history of high blood pressure, and chronic kidney disease.

18.  AR 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 office, grade, rank, or rating.  It provides for MEBDs, 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 AR 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  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.  This regulation also states the following:

	a.  Paragraph 2-2b(1) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty (until he is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation; such a member should not be referred to a PEB unless his physical defects raise substantial doubt that he is fit to continue to perform the duties of his office, grade, rank, or rating.

	b.  Paragraph 2-2b(2) states that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that: (a) the member, in fact, was physically unable to adequately perform the duties of his office, grade, rank, or rating even though he was improperly retained in that office, grade, rank, or rating for a period of time, and (b) acute, grave illness or injury or other deterioration of physical condition, that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability, rendered him unfit for further duty.
	c.  Paragraph 2-2b(3) states that when the member's referral for physical evaluation is related to physical examinations given as a part of non-disability retirement processing (voluntary or mandatory), the above evidence must be clear and convincing to overcome the presumption of fitness.  In other cases (resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), the presumption of fitness may be overcome by a preponderance of evidence.

	d.  Paragraph 2-1 provides 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

19.  AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 of regulation in effect at the time (15 May 1989) specified the various medical conditions and physical defects which may render a Soldier unfit for further military service.  This regulation also states the following:

	a.  Paragraph 3-27 of this regulation provides for the non-tuberculosis medical conditions which may render a Soldier unfit for retention and separation, including retirement, including asthma of sufficient severity to interfere with satisfactory performance of duty or with frequent attacks not controlled by oral bronchodilators or inhaled medication.  

	b.  Paragraph 3-29 of this regulation provides for the mouth, esophagus, nose, pharynx, larynx, and trachea defects and diseases which may render a Soldier unfit for retention and separation, including retirement.  (1) Esophagus, achalasia unless controlled by medical therapy.  (2) Esophagitis, persistent and severe.  (3) Diverticulum of the esophagus of such a degree as to cause frequent regurgitation, obstruction and weight loss, which does not respond-to treatment; and stricture of the esophagus of such a degree as to almost restrict diet to liquids, require frequent dilatation, and hospitalization, and cause difficulty in maintaining weight and nutrition.

   c.  Paragraph 7 provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and it is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors: P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  The numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  Even the numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in AR 635-40.  To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary).  The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

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

21.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

22.  Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), based on Public Law 102-190, dated 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntary separated members.  The VSI was one of the monetary benefits associated with this incentive program.  The policy published to support the military drawdown stipulated that members approved for VSI would be paid in annual installments commencing on their departure date from active duty, and on each anniversary date thereafter for twice the number of years on active duty, provided that the member continued to serve in the Ready Reserve.  It further stipulated that VSI annual payments would be discontinued if the member was separated from the Ready Reserve, unless the individual became ineligible to continue to serve due to medical or age limitations.  In these cases, the member would be transferred to the Standby Reserve or the Retired Reserve.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant voluntarily, willingly, and in writing requested separation from the Army under the FY92 VSI program.  He was counseled and was fully aware of the consequences of his decision and that he was confident that this decision was in his best interest to pursue a civilian career.

2.  The applicant’s records clearly and unequivocally show that he was fully fit for duty as evidenced in several of his OERs.  The applicant had no physical condition that impaired his performance of duty or warranted processing through the PDES.  Even though he had a physical profile, he had a numerical designator of "2" which indicated he had a medical condition or physical defect which required certain restrictions in assignment within which he was physically capable of performing military duty.  An individual with such designation would have received assignments commensurate with his functional capacity.  

3.  The applicant's P2 profile neither affected his duty assignment nor stopped his transfer to the USAR.  He continued to serve in the USAR for 5 years or more before he was determined to be not physically qualified for retention.  The applicant's active duty service was not terminated because of any physical condition.  

4.  At the time the applicant was discharged from the Army he was performing his duties and he has not overcome the presumption of fitness created by such performance of duty. 

5.  The Army's PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform in the office, grade, rank, or rating held.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  

6.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board.  PEB's evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating to provide a full and fair hearing for the Soldier; and make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

7.  Since the applicant's medical condition did not affect his ability to perform in his grade and specialty, there was no reason to refer him to the PDES.  Therefore, he was not considered by an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retirement for physical disability.

8.  An award or rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the DVA and/or SSA do not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  Similarly, the SSA may award certain benefits within its own rules. 

9.  Regardless of the applicant’s current medical conditions, what caused them or how the DVA chooses to currently evaluate them, the applicant was not entitled to physical disability processing or retirement at the time of separation from active duty.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

10.  With respect to the argument submitted by the applicant's counsel:

	a.  It is acknowledged that the advisory opinion previously submitted by the ARBA medical advisor contains administrative errors with respect to the wever, these errors are harmless and do not change the fact that the applicant had a myriad of medical complaints of a minor nature and that he had performed outstandingly for several years.  He was recommended for a physical profile with limitation, which by itself did not determine a need for an MEBD.  

	b.  Counsel failed to provide any particular proof the ABCMR failed to give the applicant's case a fair and complete adjudication.  If anything, the record suggests the exact opposite.  

	c.  The expert witness's military service, experience, and specialization are noted; however, the following is also noted:

		(1)  Her argument that the regulation in effect at the time established that members with asthma must be evaluated by a medical board and then must be referred to a PEB is factually wrong.  The regulation stated that an individual with asthma that meets certain severity criteria or those individuals with asthma that interferes with the satisfactory performance of their duty or those who have frequent attacks that are not controlled by oral bronchodilators or inhaled medications, are referred to an MEBD/PEB  

		(2)  Her argument that the command incorrectly assessed his physical profile as a P-2 is in error because he was not able to perform maximum effort over long periods and the elimination from the special forces basic course alone should have alerted his physician that he should have been assessed as a P-3 or P-4.  It is noted that the applicant performed the aerobic event of the physical fitness test.  Just because he was unable to complete the requirements of special forces training does not mean he should have been referred to an MEBD.   

		(3)  While doctors at the time did in fact diagnose the applicant as having symptoms of asthma, when it comes to physical disability, the issue is how a condition or impairment affects a Soldier's ability to perform in their specialty and grade.  In the applicant's case, his multiple OERs clearly indicate that his condition did not affect his duty performance.  

		(4)  Contrary to the expert witness's assertion that the applicant's GERD rendered him physically unfit, the regulation in effect at the time required such impairment to be of a severe nature.  This is not the case here.  He was diagnosed with mild GERD with no evidence that it affected his duty performance.

		(5)  Contrary to the expert witness's assertion that the applicant's visit to the hospital on 9 September 1992 for chest pain and hypertension should or would have rendered him medically unfit, again, there is no evidence to show that such condition affected his duty performance.  

		(6)  The primary requisite for eligibility for retirement or separation under the provisions of the regulation is that the member must be unfit because of physical disability to perform the duties of his office, grade, rank or rating.

		(7)  Prior to his discharge, his commander indicated that he was physically qualified for separation pending a VA determination of an asthmatic condition.  This comment does not constitute evidence of military unfitness.

11.  At the time of his voluntary separation in October 1992, the applicant was fit for duty.  The Army was satisfied with his performance and he was making normal career progression.  He had a mild asthma condition but it did not cause a termination of his career.  There were no grounds for a MEBD or PEB.

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 to amend the decisions of the ABCMR set forth in Docket Number AR1999025606, dated 13 May 1999 and Docket Number AR20000050139, dated 29 March 2001.




      _______ _   _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)                                         AR20100000590



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ABCMR Record of Proceedings (cont)                                         AR20100000590



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