IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110004190 


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 reconsideration of his previous request to be retired by reason of physical disability.

2.  The applicant states he suffered from a heart condition, pseudofolliculitis [ingrown hairs], tinnitus [ringing in the ears], sinusitis with polyps [sinus inflammation], and asthma while serving on active duty.  The doctor suggested he should have a medical evaluation board (MEB); however, he was never given a board for his heart and asthma conditions.  He states he is a Christian and believes in total honesty and integrity in all matters and his medical records will show that he is not fabricating his illnesses.

3.  The applicant provides copies of his medical records.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100016159 on 20 January 2011.

2.  The applicant enlisted in the Regular Army on 15 October 1987 for a period of 2 years.  He completed training as an armor crewman and served until 13 October 1989 when he was honorably released from active duty and transferred to the U.S. Army Reserve to complete his statutory service obligation.

3.  On 21 November 1996, he again enlisted in the Regular Army in pay 
grade E-4 for a period of 4 years.  He successfully completed training as a traffic management coordinator and was transferred to Hunter Army Airfield, Georgia.

4.  The available medical records provided by the applicant show he began receiving medical treatment for breathing problems in August 1997 and was diagnosed as having exercised-induced asthma.  He was prescribed treatment and was issued a temporary physical profile for self-paced physical training and alternate Army Physical Fitness Test events.

5.  A computerized interpretation report from an Army medical center, dated 16 July 1998, shows the applicant had mild restrictive airway disease [decrease in the ability to expand the lungs or breathe in].

6.  On 22 July 1998, his medical records show he received treatment for asthma and the treating physician stated, "MEB may need to be done – depends on command/military occupational specialty (MOS) – should be initiated through troop command."

7.  On 31 July 1998, a physician referred the applicant to another physician for evaluation by a board.  The physician indicated he would recommend a board; however, as he previously stated, it would be up to the troop command.  He provided the applicant with his appointment letter to provide to the troop medical clinic (TMC).

8.  On 3 August 1998, the applicant was seen at the TMC for review for a possible MEB.  The examining physician ordered a "chest review" and follow-up. 
He also extended the applicant's physical profile for 2 weeks.

9.  On 24 August 1998, the physician performed a follow-up examination and indicated the applicant should continue to work within his physical profile and stated he did not feel that the applicant's illness warranted an MEB.  The available records are essentially silent on the matter after that determination was made.

10.  On 29 April 1999, the applicant underwent a separation medical/physical examination and was found fit for separation.

11.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records.  However, his records do contain a duly-authenticated DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows the applicant was honorably discharged on 30 April 1999 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 6-3a, due to hardship.  He completed 2 years, 5 months, and 10 days of active service during his 4-year enlistment.

12.  A review of the available records failed to show any indication the applicant was unable to perform the duties of his rank and MOS at any time.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 6, in effect at the time, provided for the separation of personnel because of genuine dependency or hardship.  An application for such separation would be approved when a service member could substantiate that his or her situation or immediate family's situation had been aggravated to an excessive degree since enlistment, that the condition is not temporary, and that discharge will improve the situation.  However, individuals would not be separated under this provision if they were not deemed to be medically qualified for retention and separation.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a Department of Veterans Affairs (VA) rating does not establish error or injustice in whether or not an Army rating is given or in an Army rating that is given.  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 it determines were incurred during military service and subsequently affect the individual's civilian employability.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the available record does not contain sufficient evidence to show he was determined to be unfit for retention or discharge at any point during his service or during the separation process or that he could not perform his duties.  Therefore, it must be presumed in the absence of evidence to the contrary that the applicant's administrative discharge was accomplished in accordance with the applicable regulations with no violations of his rights.

2.  The applicant's contention that he was recommended for an MEB and he never received one has been noted.  However, the medical records provided by the applicant show he was referred to a physician for evaluation for a possible board and, after conducting tests and reevaluating the applicant, the physician opined that the applicant's illness did not warrant referral to an MEB.

3.  It must also be presumed in the absence of evidence to the contrary that at the time the applicant underwent his separation physical, medical personnel properly determined his medical conditions did not warrant consideration under the Physical Disability Evaluation System and/or referral to a medical and/or physical evaluation board.  Accordingly, it appears he was properly discharged under administrative procedures in accordance with the applicable regulations.

4.  In the absence of evidence to show he was unfit for separation or could not perform the duties of his rank and MOS at the time of his discharge, there appears to be no basis to grant his request for a medical retirement.
 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100016159, dated 20 January 2011.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      _____________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)                                         AR20110004190



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004190



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1