IN THE CASE OF:	  

		BOARD DATE:	    21 October 2010

		DOCKET NUMBER:  AR20100007831 


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 his narrative reason for separation be changed to a medical retirement. 

2.  The applicant states the following:

* He should have received a medical retirement due to his service connected disability
* He was operated on while in the service due to back injury
* He has diabetes, sleep apnea, neuropathy of lower legs, depression, schizophrenia, and right elbow fracture
* His disabilities and secondary conditions render him unable to serve in the Armed Forces or Reserve

3.  The applicant provides the following documents in support of his application:

* Appeal of the Physical Evaluation Board (PEB) findings
* 3 pages of Standard Form 600 (Chronological Record of Medical Care)
* Letter from Primary Care Manager at Moncrief Army Community Hospital
* 2-page follow-up assessment from a Sleep Disorders Center

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 6 January 1965.  He served in the Regular Army from 12 July 1983 to 13 May 1986 and was transferred to a Reserve unit on the following day.  He continued to serve in the Reserve component through reenlistments.  

2.  The applicant was ordered to active duty on 2 August 2004 in support of Operation Noble Eagle.  

3.  The applicant’s notification of eligibility for retired pay at age 60 (20-Year Letter) is dated 20 October 2004.

4.  The applicant provided a follow-up assessment from a Sleep Disorders Center which gives a description of his medical history, current medications, physical examination, and plan.  The follow-up assessment indicated the applicant’s obstructive sleep apnea had been adequately controlled with the use of CPAP and the musculosketetal discomfort associated with the lumbar disc contributed to daytime fatigue.  This assessment listed his medical problems as:

* obstructive sleep apnea
* hypersomnia [excessive amounts of sleepiness] compatible with narcolepsy
* Hypertension
* Diabetes
* Situational reaction

5.  The applicant’s Medical Evaluation Board (MEB) proceedings are not available.  

6.  On 9 September 2009, an informal PEB found the applicant unfit for military service due to chronic low back pain (MEB diagnosis 3).  The PEB proceedings indicate he injured his back in September 2007 when he fell wearing full battle gear.  The PEB indicated that a Electromyogram (EMG) conducted in January 2009 showed findings consistent with mild early peripheral neuropathy most likely due to diabetes.  The applicant’s noncommissioned officer evaluation reports (NCOERs) within the past three years had been acceptable.  There was no evidence of adverse duty performance secondary to diabetes.  

7.  The PEB also refers to the applicant’s medical conditions not unfitting as listed in the narrative summary of the MEB:

	a.  Diagnoses 1 and 2 – diabetes mellitus and bilateral foot dysesthesias due to peripheral neuropathy, not unfitting, not rated.  He was on a diet and exercise program, and took oral hypoglycemic medications.

	b.  Diagnoses 4 through 9 – met medical retention standards and were not listed on the physical profile as limiting any of the Soldier’s functional activities [conditions were not identified] or commented upon by the commander as hindering his performance.

8.  The PEB recommended that the applicant be separated with severance pay with a 10-percent disability rating.  The applicant did not concur with the recommendations of the PEB and requested to appear before a formal hearing of his case.  

9.  In the applicant’s rebuttal to the PEB findings, he argues the following points:

   a.  The board failed to provide a rating for his uncontrolled diabetes mellitus Type II.

   b.  The evidence regarding the lumbar spine disability supports a rating of 40 percent and the uncontrolled diabetes supports a rating of 20 percent in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-41e and 3-27a, and 38 C.F.R. [Code of Federal Regulations] 3.306, 4.71, 4.119, and diagnostic codes 5242-5243 and 7913.  

   c.  His severe lumbar spine disability has become progressively intense and he takes medication for muscle spasms and severe pain of lumbar spine. 
   
	d.  The physical examination conducted by Moncrief Army Community Hospital was not thorough.

	e.  His responses to the PEB examiner's questions were not accurately recorded.

   f.  Chronic obstructive sleep apnea is a very debilitating disease regarding the performance of his duties.  

10.  In a 20 October 2009 letter, the Primary Care Manager at the Moncrief Army Community Hospital gave a brief history of the applicant’s medical conditions to include hypertension, Type 2 diabetes, and sleep apnea. 

11.  In a 22 October 2009 letter, the U.S. Army Physical Disability Agency informed the applicant that his case was properly adjudicated by the PEB.  It was 
determined that the findings and recommendations of the PEB were supported by substantial evidence and were therefore affirmed.  

12.  The applicant underwent a psychological evaluation in October 2009 and was diagnosed as having major depressive disorder, generalized anxiety disorder, and schizoid personality disorder.  

13.  The applicant was honorably discharged from active duty on 1 December 2009 under the provisions of Army Regulation 635-40, paragraph 4-24b(5) by reason of physical disability, other.  

14.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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.  Physical evaluation boards 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; to 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 to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  

15.  Army Regulation 635-40 also states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

16.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

17.  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 rated at least 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant's back injury, diabetes mellitus, and bilateral foot dysesthisias were considered by the PEB.  However, with the exception of his back pain, the PEB determined that his medical conditions were not unfitting, and therefore, not rated.
2.  The applicant submitted a rebuttal to the September 2009 PEB.  There is no indication that the PEB was not aware of the applicant's other medical problems prior to making their final decision.  

3.  The PEB indicated the applicant’s early peripheral neuropathy was due to diabetes, but there was no evidence of adverse duty performance secondary to diabetes.  The applicant’s diagnosis of diabetes was not unfitting; therefore, it was not rated.  As for his other diagnoses, to include his sleep apnea, it appears his commander did not believe they rendered him unfit to perform his duties as he did not comment that they had hindered his performance.

4.  The applicant did not provide any evidence that would indicate a misdiagnosis/evaluation.   Consequently, there is no basis for granting the applicant's request.

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)                                         AR20100007831





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (