IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100008812 


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, with severance pay, be changed to a medical retirement.

2.  The applicant states he was not completely evaluated.  He was medically evaluated based on only his knees and shoulders.  He contends there was evidence of his diabetes, depression and sleep apnea in his medical records which were not evaluated.  

3.  The applicant has not provided any documentation in support of the application because the Department of Veterans Affairs (VA) in Waco, TX is reviewing his records. 

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 evidence shows the applicant enlisted in the US Army Reserve, for 8 years, in the Delayed Entry Program on 20 August 1999.  On 29 September 1999, he enlisted in the Regular Army for 6 years.  He completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS), 15Y (AH-64D Armament/Electrical/Avionic Systems Repair)

3.  On 10 March 2004, a physical examination was initiated for the purpose of a medical evaluation board (MEB).  In preparation for the physical examination, the applicant completed a DD Form 2807-1 (Report of Medical History).  For each of the items marked "Yes," on this form, he made an explanatory comment in Item 29 (Explanation of "Yes" Answers).

4.  At the time of his physical examination, a DD Form 2808 (Report of Medical Examination), was completed.  Item 77 (Summary of Defects and Diagnoses) showed the following entries:

* Mild Sleep Apnea
* Presbyopia
* Onset Hearing Loss
* Chronic right shoulder pain
* Chronic bilateral knee pain
* Anxiety disorder
* Multiple musculoskeletal 
* Hypospermia

5.  A copy of a DA Form 3349 (Physical Profile), dated 30 March 2004, shows the applicant was issued a permanent profile and was rated with following numerical values:   

* 1 - P-physical capacity or stamina 
* 3 - U-upper extremities
* 3 - L-lower extremities
* 1 - H-hearing and ears
* 1 - E-eyes
* 1 - S-psychiatric

6.  On 20 April 2004, the applicant's commander prepared a memorandum for the President, Physical Evaluation Board (PEB), Washington, D.C.  In this memorandum, the commander summarized how he was assigned to the unit with a temporary profile for knee pain and had many different injuries and ailments that had precluded him from fully functioning in his current MOS and he was unable to take the Army Physical Fitness Test (APFT) due to his shoulder and knee problems.
7.  The commander recommended that the applicant be considered for separation from the Army at the earliest opportunity due to his inability to deploy in an austere environment.  He concluded that the applicant had complied with all directed treatment and his condition was not exaggerated in any way.

8.  A copy of a DA Form 3947 (Medical Evaluation Board Proceedings) shows that on 9 July 2004, the applicant was evaluated by a MEB for retropatella pain syndrome and subcoracoid impingement (bicipital tendinitis short head).  He was referred to a PEB for further adjudication.  The evaluation board determined both conditions were rated as medically unacceptable per Army Regulation 40-501 (Standards of Medical Fitness).  Item 24 (Action by Patient) shows the applicant agreed with the board's findings and recommendation.  His records are void of any documentation showing he appealed to have his diabetes, depression or sleep apnea evaluated or reconsidered.

9.  On 22 July 2004, the applicant's case was considered by the physical evaluation board.  After review of the records, the board determined that his functional limitations in maintaining the appropriate level of mobility, caused by the physical impairments made him medically unfit to perform the duties of a Soldier of his rank and primary specialty.  The PEB found the applicant to be physically unfit and recommended a combined physical disability rating of 0% and advised him that because his disability was less than 30 percent and he had less than 20 years of service, Army Regulation 635-40 (Physical Evaluation For Retention, Retirement, Or Separation) required his separation from service with severance pay.  

10.  A copy of the PEB results show the applicant concurred with the board's findings and waived his rights to a formal hearing.  He signed the form on 13 August 2004.  

11.  A copy of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he completed a total of 5 years and 17 days of net active service.  This form also shows he was discharged for disability, with severance pay, on 15 October 2004, under the provisions of Army Regulation 635-40, paragraph 4-24b (3).

12.  Item18 (Remarks), of the applicant's DD Form 214, shows he received $18,141.00, in disability severance pay, on the date of his discharge. 

13.  The applicant states his records are currently in review by the VA in Waco, TX.  

14.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 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 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 (PULHES): 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.  

15.  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.  It provides for medical evaluation boards, 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 Army Regulation 40-501, Chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

16.  Army Regulation 635-40 further states that 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.  As such, only medically disqualifying and physical unfitting conditions are rated by the PEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct his records to show he was medically retired was carefully considered.  

2.  The evidence shows the MEB determined retropatella pain syndrome and subcoracoid impingement (bicipital tendinitis short head) were rated as medically unacceptable in accordance with regulatory standards and further referred the applicant's case to the PEB.  The MEB did not find the applicant's other medical conditions medically disqualifying.

3.  The PEB found the applicant to be physically unfit and recommended a combined physical disability rating of 0%.  He was advised that because his disability was less than 30 percent and he had less than 20 years of service, the applicable regulation required his separation from service with severance pay.  The applicant concurred with the board's findings and recommendation.  He was properly rated for the only two conditions which prevented him from performing his duties.

4.  The applicant has not provided any evidence to show that he was not properly rated for his disabilities and that his discharge, with severance pay, should now be changed to a medical retirement.

5.  The evidence shows the applicant was honorably discharged for disability, with severance pay, and was authorized to receive $18,141.00, in disability severance pay, on the date of his discharge.  Consequently, his request for physical disability retirement should be denied.  

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)                                         AR20100008812





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ABCMR Record of Proceedings (cont)                                         AR20100008812



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