IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100012417 


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, change of his discharge by reason of disability with severance pay to a medical retirement. 

2.  The applicant states, in effect, he was not completely evaluated.  He was medically evaluated based on only his asthma.  He contends there was evidence in his medical records which showed he had been diagnosed and treated for his back, right knee, and both of his feet, all of which were not evaluated.  He is willing to repay the severance pay.  He also believes his supervisor had a personal agenda to have him removed from the unit.  

3.  He further states, in effect, his supervisor challenged his lateral appointment order to the rank of corporal.  Once his supervisor discovered he was being treated for physical conditions, he began to question his physical ability to serve in an infantry unit. 

4.  The applicant provides:

* an excerpt from his Department of Veterans Affairs (VA) medical records
* a VA Form 3288 (Request for and Consent to Release of Information from Individual's Records), dated 31 March 2010
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DD Form 215 (Correction to DD Form 214), dated 2 July 2002


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 of record shows the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 1 November 1990 for a period of 8 years.  On 18 November 1990, he was discharged from the USAR DEP and on
19 November 1990, he enlisted in the Regular Army for 6 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 1 December 1995, the applicant's commander prepared a memorandum for the President, Physical Evaluation Board (PEB), Washington, D.C.  In this memorandum, the commander summarized that the applicant had difficulty breathing when exerting himself in the field or during physical training.  He noted that in spite of the applicant's good performance at garrison tasks, his asthma prevented him from fulfilling his duties as an infantryman.  He recommended reclassifying the applicant into a less demanding MOS.

4.  A copy of a DA Form 3349 (Physical Profile), dated 12 December 1995, shows the applicant was issued a permanent physical profile and he was rated with the following numerical values for the six medical factors:

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


5.  A copy of a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) shows that on 7 February 1996, the applicant was evaluated by an MEB for asthma.  The applicant indicated he did not desire to continue on active duty and the MEB did not find the applicant's medical condition medically disqualifying; however, he was referred to a PEB for further adjudication.  Item 
24 (Action by Patient) shows the applicant agreed with the board's findings and recommendation.  

6.  A copy of a Standard Form (SF) 93 (Report of Medical History), dated 
15 December 1995, indicates the applicant marked the following responses in item 
11 (Have You Ever Had or Have You Now):

* Asthma - Yes
* Recurrent Back Pain - No
* Foot Trouble - Yes

7.  On 14 March 1996, the applicant's case was considered by a PEB.  After review of the records, the board determined his asthma required a bronchodilator and inhaled steroids occurring at rest and following exercise.  He had frequent attacks with normal pulmonary function between asthmatic episodes which made him medically unfit to perform the duties in MOS 11B and in the rank/grade of SPC/E-4.  

8.  The PEB found the applicant to be physically unfit and recommended a combined physical disability rating of 10 percent (%) and advised him that because his disability was less than 30% 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.

9.  A copy of the PEB results show the applicant concurred with the board's findings and he waived his rights to a formal hearing.  He signed the form on 18 March 1996.

10.  A copy of the applicant's DD Form 214 shows he completed 5 years, 6 months, and 7 days of total active service.  This form also shows he was honorably discharged on 25 May 1996 under the provisions of Army Regulation 635-40, paragraph 4-24b (3), by reason of disability, with severance pay.

11.  Item 18 (Remarks) of the applicant's DD Form 214 shows he received $15,631.20 in disability severance pay on the date of his discharge. 


12.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling), 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):

	a.  An individual having a numerical designation of “1” under all factors is considered to possess a high level of medical fitness;

	b.  A physical profile designator of “2” under any or all factors indicates that an individual possesses some medical condition or physical defect that may require some activity limitations;

	c.  A profile containing one or more numerical designators of “3” signifies that the individual has one or more medical conditions or physical defects that may require significant limitations.  The individual should receive assignments commensurate with his/her physical capability for military duty; and

	d.  A profile serial containing one or more numerical designators of “4” indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.

13.  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 office, grade, rank, or rating.  It provides for MEB's, 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 MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

14.  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 evaluated the applicant for his asthma and referred his case to a PEB for further adjudication.  The MEB did not find the applicant's other medical condition(s) medically disqualifying.

3.  The PEB found the applicant to be physically unfit and recommended a combined physical disability rating of 10%.  He was advised that because his disability was less than 30% 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 condition (asthma) 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 unfitting 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 he was authorized to receive $15,631.20 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)                                         AR20100012417



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ABCMR Record of Proceedings (cont)                                         AR20100012417



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