IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100024143 


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 that the narrative reason for his discharge be changed from “Condition, Not a Disability” to a “Disability Discharge.” 

2.  The applicant states that he was discharged due to his service-connected heart condition and that disability was the reason for his not completing his service.  Accordingly, he should have been discharged by reason of disability.

3.  The applicant provides a copy of his Department of Veterans Affairs (VA) Rating Decision and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 had prior honorable service in the U.S. Marine Corps from      24 April 1996 through 28 September 1997.  He enlisted in the Regular Army in Tampa, Florida on 30 June 2006 for a period of 3 years under the Officer Candidate School (OCS) enlistment option and was transferred to Fort Benning, Georgia on 9 July 2006 for entry into OCS.

3.  For reasons not explained in the available records, the applicant was never enrolled in an OCS class and on 3 October 2006, while on pass, he was diagnosed by a civilian physician in Florida as having cardiomyopathy.

4.  On 6 February 2007 the commander of the Medical Department Activity (MEDDAC) dispatched a memorandum to the applicant informing him that he did not meet the clinical criteria for assignment to the Medical Hold Company.

5.  On 7 February 2007 the applicant was involuntarily released from OCS due to medical reasons.  The record of disenrollment states that he was disenrolled because he had been unable to start a class since his arrival because he had many medical ailments that resulted in his being diagnosed with cardiomyopathy.  His doctors believe that it will take 6 to 12 months to recover and that the applicant will be able to request reinstatement to OCS once the medical disqualification is removed.

6.  On 5 March 2007 the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 5-17(8) for other designated physical or mental conditions due to his diagnosis of cardiomyopathy.

7.  After consulting with counsel the applicant elected not to submit a statement in his own behalf.  He also indicated that he had spoken to a VA representative and had been informed that he met the qualifications for VA benefits after his release from active duty.

8.  The appropriate authority approved the recommendation for discharge on     15 March 2007 and directed that he be furnished an Honorable Discharge Certificate.

9.  Accordingly, he was honorably discharged on 21 March 2007, under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition, not a disability.  He had served 8 months and 22 days of active service.

10.  On 21 April 2008 the VA granted the applicant a 10% disability rating for cardiomyopathy and 10% for pes planus of bilateral feet (flat feet) effective 22 March 2007.
11.  Army Regulation 635-200, paragraph 5-17, provides for the separation of Soldiers who have a physical or mental condition that potentially interferes with assignment to or performance of duty; however, the physical or mental condition does not amount to a disability or qualify for disability processing under the provisions of Army Regulation 635-40.

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  it states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.  

14.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affects the individual's employability

15.  The National Institutes of Health medlineplus.gov states cardiomyopathy can be acquired or inherited.  Many times, the cause of cardiomyopathy is not known.



DISCUSSION AND CONCLUSIONS:

1.  The mere presence of impairment does not, of itself justify a finding of physical unfitness and/or medical retirement from the Army.  In addition, cardiomyopathy has different causes, including an inherited cause.  Given the applicant's short service on active duty, there is no evidence that his condition was incurred while he was on active duty, only that it was discovered while he was on active duty.

2.  The fact that the VA has awarded the applicant a disability rating for his cardiomyopathy and flat feet does not establish physical unfitness, or the degree thereof for Department of the Army purposes.  Although there is no evidence to suggest that his cardiomyopathy permanently prevented him from performing his duties, each agency/department is bound to operate within its own rules, regulations, and policies.  The granting of a compensable award by one agency is not tantamount to a lesser, equal or more enhanced award by the other agency.

3.  The evidence of record clearly shows that he needed no additional medical treatment at the time, that he simply needed time to heal and that a determination was made that he should be discharged rather than held at the OCS until he was deemed medically fit to undergo training.

4.  The fact that the VA, in its discretion, has awarded him a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department.

5.  Disability ratings assigned by the VA are based upon the establishment of service-connection of the diagnoses.  This rating may fluctuate from zero to 100 percent based on the former service member's physical condition at the time of each physical examination.

6.  Army disability ratings are not based upon the same principles as the VA and, consequently, the ratings awarded by the VA may differ from those awarded by the Army.

7.  Accordingly, he was properly discharged in accordance with the applicable laws and regulations with no indication of any violations of any of his rights.




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)                                         AR20100024143





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ABCMR Record of Proceedings (cont)                                         AR20100024143



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