IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110000479 


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 two separate applications, correction of his
DD Form 214 to show he was retired by reason of physical disability.

2.  The applicant states he had requested a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) on two separate occasions and both times he was told that his condition was not severe enough.

3.  The applicant provides:

* a Department of Veterans Affairs (VA) Rating Decision, dated 2 March 2010
* a letter from the Army Review Boards Agency, dated 15 December 2010
* a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 12 January 2010
* a Compensation and Pension Examination Report and Results, dated 17 November 2009
* a Standard Form (SF) 600 (Chronological Record of Medical Care), dated 21 July 2009
* a DA Form 3349 (Physical Profile), dated 16 May 2008

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant (2LT)/O-1 in the U.S. Army Reserve (USAR) on 21 May 2004.  He was ordered to active duty effective 10 June 2004.
2.  He was promoted to first lieutenant (O-2) effective 29 November 2005.  He was promoted to captain (O-3) effective 1 July 2007.

3.  The applicant submits a DA Form 3349, which shows that a temporary physical profile was initiated on him for Obstructive Sleep Apnea with CPAP (continuous positive airway pressure), on 16 May 2008.  The profiling officer stated that the applicant was pending evaluation and return to duty in 30 to
60 days.  The physical profile was to expire on 6 June 2008.  The DA Form 3349 does not show a signature by the approval authority.

4.  He was discharged on 30 September 2009.

5.  On 1 October 2009, the applicant accepted an appointment for an indefinite term as a captain in the USAR he was assigned to the 208th Support Detachment (Liaison), Fort Carson, CO.

6.  The applicant's Compensation and Pension Examination Report and Results, dated 17 November 2009, show he has symptoms of Post Traumatic Stress Disorder (PTSD), but does not have stressors that would warrant a diagnosis of PTSD.  His symptoms appear to meet the diagnostic criteria for anxiety disorder, not otherwise specified.  He was diagnosed with anxiety disorder, not otherwise specified (service-connected) and major depressive disorder (not service-connected).

7.  The VA Rating Decision he submits show that on 2 March 2010 he was granted a service-connected disability rating for the following conditions:

* Sleep Apnea with Restless Leg Syndrome - 50 percent (%)
* Left Shoulder Subacromial Bursitis and Mild Impingement Syndrome, Dominant - 10%
* Left Hip Trochanteric Bursitis - 10%
* Left Wrist De Quervain's Tensosynovitis, Dominant - 10%
* Left Knee Retropatellar Pain Syndrome - 10%
* Lumbar Strain L5-S1, with Spondylosis - 10%
* Anxiety Disorder, Not Otherwise Specified - 10%

8.  The VA awarded the applicant a 70% combined service-connected disability rating percentage.

9.  On 11 May 2010, the applicant was placed on a permanent physical profile for "Low Back Pain 3-39h:  Joint Pain 3-11e; Sleep Apnea with CPAP 3-11c; 

Depression 3-32; Anxiety 3-33.  Unable to walk with field gear and rucksack.  Limited lifting to 40 pounds, 50 feet.  Limited prolonged stretching to 45 minutes."

10.  The applicant's interactive Personnel Electronic Records Management System (iPERMS) file contains a DA Form 67-9 (Officer Evaluation Report (OER)) for the period 31 May 2009 through 30 May 2010.  This report shows no record of an Army Physical Fitness Test (APFT) during this rating period because his civilian duties often precluded him from participating on the same battle assembly schedule and due to his transition from active duty to the USAR.  However, his rater and senior rater comments indicate he performed his assigned duties in an outstanding manner.

11.  Review of the applicant's Human Resources Command - Integrated Web Services file shows he is still an active member of the USAR and performing his active and inactive duty training requirements through July 2011.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

13.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating.

14.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting documents have been carefully considered.  However, the available records do not show he was suffering from any medically unfitting condition that would require him to be processed for discharge through medical channels.

2.  As previously stated, the VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

3.  Although the applicant was placed on a physical profile, his records do not show that he is unable to perform his assigned duties as evidenced by his continued performance of active and inactive duty training and his latest OER that show he performed his assigned duties in an outstanding manner with no indication that he was unable to perform the duties of his office, grade, rank or rating.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110000479



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ABCMR Record of Proceedings (cont)                                         AR20110000479



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