IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110010424 


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 records be corrected to show his physical evaluation board (PEB) found him physically unfit for the following medical conditions with disability ratings as listed below:

* sinusitis with a 30 percent disability rating
* allergic rhinitis with a 30 percent disability rating 
* nasal polyposis with a 30 percent disability rating
* headaches with a 50 percent disability rating
* back pain with a 100 percent disability rating

2.  He states he first began experiencing back pain on his first duty assignment in South Korea in April 1991 and that it continues today.  He states, in effect, that he continues to have the medical conditions listed above which made it extremely difficult to perform military duties.  He further describes the symptoms associated with the medical conditions he listed.  He believes his impairment rating failed to address other illnesses and injuries that occurred while on active duty.  He takes prescribed medication to treat injuries and illnesses which occurred on active duty which causes him difficulty in maintaining employment due to its side effects.  

3.  He does not recall receiving advisement of appellate rights and/or guidance from the Physical Evaluation Board Liaison Officer (PEBLO).  He adds that he continues to experience extreme difficulty financially providing for his family.


4.  He provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 8 October 1997
* copies of military medical records
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* other medical-related documents
* noncommissioned officer evaluation reports
* military commendations
* DD Form 256A (Honorable Discharge)
* Horry County Police Department records check

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.  His military records show he enlisted in the Regular Army on 6 November 1990.  He reenlisted and served continuously.  He attained pay grade E-5.

3.  On 11 April 1997, he was referred to an MEB because of his substandard duty performance due to his physical impairments.

4.  An MEB Narrative Summary shows his chief complaint was bronchial asthma with allergic component and that he was referred for this same reason.  It shows the examination was conducted on 25 June 1997.  The summary lists only perennial allergic rhinitis and nasal polyposis under the heading of all other conditions.

5.  On 1 August 1997, an MEB diagnosed him with:  bronchial asthma, adult onset, multiple triggers to include exercise and aero-allergens, medically unacceptable under Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-27a; perennial allergic rhinitis; and nasal polyposis.  The MEB referred him to a PEB.  The applicant indicated he did not desire to continue on active duty and he agreed with the MEB's findings and recommendation.

6.  On 11 August 1997, an informal PEB found the applicant unfit for duty under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) diagnostic code 6602 (bronchial asthma), rated 10 percent disabled.  The conditions listed as medical board diagnosis #2 and #3 (perennial allergic rhinitis and nasal polyposis) were considered by the PEB and found to be neither unfitting nor ratable.

7.  The PEB recommended a combined rating of 10 percent and separation with severance pay if otherwise qualified.  On 15 August 1997, the applicant concurred with the findings and recommendation of the PEB.

8.  A DA Form 5893 (PEBLO Counseling Checklist/Statement) shows he received PEBLO counseling on 15 August 1997.  The form shows he acknowledged receiving counseling pertaining to his disability evaluation which included MEB appeal procedures.

9.  On 8 October 1997, he was discharged under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) for disability with severance pay.

10.  Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.

11.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It 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 or her office, grade, rank, or rating.  It states that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

12.  Army Regulation 635-40, paragraph 3-5c states that the fact a Soldier has as condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty.  Paragraph 
B-3(2)f states that conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the findings of unfitness.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant was referred to an MEB for bronchial asthma with allergic component, perennial allergic rhinitis, and nasal polyposis.  Only the bronchial asthma with allergic component was determined to be unfitting and he agreed with the MEB's findings and recommendation.

2.  A PEB recommended a combined rating of 10 percent and separation with severance pay if otherwise qualified.  The applicant concurred with the findings and recommendation of the PEB.

3.  The Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  There is no evidence in available military records to indicate he should have been considered by an MEB for sinusitis, headaches, or back pain.  As such, there was no basis for referral to a PEB for a disability rating determination for any of these conditions.

4.  Contrary to his indication that he may not have received advisement of appellate rights and/or guidance from the PEBLO his records show he acknowledged receiving counseling pertaining to his disability evaluation which included MEB appeal procedures.  As such, it must be presumed he was properly counseled regarding his options, appellate rights, and guidance.

5.  His contention that he is experiencing difficulty financially providing for his family is noted.  However, the ABCMR does not grant requests for correction of records for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits.

6.  There is insufficient evidence to support any disability rating for the medical conditions requested by the applicant.


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)                                         AR20110010424



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ABCMR Record of Proceedings (cont)                                         AR20110010424



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