IN THE CASE OF:	  

		BOARD DATE:  24 April 2012

		DOCKET NUMBER:  AR20110017441 


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 his record be corrected to show he was retired by reason of physical disability and placed on the "Permanent Disability Retired List."

2.  The applicant states he completed a DD Form 2697 (Report of Medical History) in January 2008 in which he indicated he had serious respiratory problems that had worsened during the latter period of his deployment to Iraq.  He states no respiratory testing or examination was done during his separation medical examination which violates law and policy.  He states the examining physician relied on breathing tests from his last physical examination to arrive at the conclusion that his respiratory problems were not serious.

3.  The applicant provides a 9-page explanation of his case with the 31 exhibits identified therein in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the U.S. Army Reserve on 5 August 2003 and entered active duty on 7 September 2003 as a Judge Advocate General’s Corps officer.  He was promoted to captain on 8 March 2004, which is the highest rank he held on active duty.

2.  On an unknown date the applicant requested resignation for miscellaneous/general reasons.  His record also does not include the separation medical examination completed for the applicant.
3.  The applicant's record is void of any documents indicating he was suffering from any disqualifying physical condition prior to his discharge that would have supported his separation processing through medical channels.  His last DA Form 67-9 (Officer Evaluation Report (OER)) on file covering the period 10 February 2007 through 10 December 2007 shows he was performing the duties of his grade and specialty at a high level during this rating period.

4.  The applicant's record contains a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was honorably discharged in the rank of captain on 15 March 2008 after completing 4 years, 6 months, and 9 days of active military service.  The DD Form 214 confirms he was separated under the provisions of paragraph 3-5, Army Regulation 600-8-24 (Officer Separations), by reason of "miscellaneous/general reasons."

5.  The applicant provides the following military and Department of Veterans Affairs (VA) medical treatment records:

	a.  A Standard Form 600 (Chronological Record of Medical Care), dated 2 January 2007, indicates the applicant presented with complaints of coughing up blood and a bleeding tongue for 7 weeks.  The physical findings noted the applicant's vital signs were good and he was not in acute distress.  It also showed his lungs were clear and his heart rate and rhythm was normal;

	b.  A Standard Form 600, dated 10 July 2007, documents a follow-up to a full study for pulmonary disease.  It indicates he has dyspnea during exertion; however, his respiration rhythm and depth were normal.  It further indicates his chest was normal to percussion and clear to auscultation.  His heart rate and rhythm were normal, heart sounds were normal, and no murmurs were heard.

	c.  A Standard Form 600, dated 12 March 2008, documents evaluation of chest pains and pressure.  It indicates testing found no scintigraphic evidence of ischemia or infarct and normal wall motion.

	d.  A Standard Form 600, dated 30 July 2008, shows the applicant presented with a respiratory issue and requested referral.  The examiner noted no systemic symptoms and requested a consultation with the pulmonary clinic.

	e.  Progress Notes, dated 27 August 2008, document a pulmonary consult.  It notes testing showed spirometry demonstrated normal flow without evidence of obstruction or restriction, spirometry flow/volume was normal.  The impression and opinion noted was bronchial asthma, hyperactive airways by history.

	f.  Surgical Information, dated 29 October 2009, documents panendoscopy results.  It shows the surgical procedure showed scattered erythea in the upper airway and lower airway, including the tracheobronchial tree.  The postoperative diagnosis was chronic laryngitis and chronic tracheobronchitis.

6.  The applicant also provides various other medical records and doctor's letters containing evaluations of his condition.  The applicant refers to his separation medical examination in his statement to the Board; however, he failed to provide a copy of the report of medical examination with his application.

7.  The applicant does provide a DD Form 2697 (Report of Medical Assessment) he completed during his separation medical examination processing on              18 January 2008.  In this document he noted his respiratory issues and dyspina condition.  However, in this same document he answered "No" to the question "Do you have any conditions which currently limit your ability to work in your primary military specialty or require geographic or assignment limitations."

8.  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/her office, grade, rank, or rating.  It stipulates that in each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  Paragraph 3-1 outlines the standards of unfitness because of physical disability.  It states 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 may reasonably be expected to perform because of his or her office, grade, rank, or rating.

9.  Paragraph 3-5 of Army Regulation 635-40 contains guidance on rating disabilities.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  The percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until a physical evaluation board (PEB) determines the Soldier is physically unfit for duty.  Under the provisions of Title 10, U.S. Code, chapter 61, these ratings are assigned from the VA Schedule for Rating Disabilities.
10.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct his record to show he was retired by reason of physical disability and placed on the Retired List has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, a member must be processed through the PDES and a PEB must determine the applicant suffers from an unfitting condition that renders him or her unable to perform the duties of his or her grade and specialty to qualify for a disability rating.

3.  In this case, although the applicant was being treated for the condition in question prior to his discharge, there is no evidence indicating this condition rendered him unfit to perform his duties.  In fact, his performance record, including his last OER, confirms he was performing his duties at a high level at the time of his discharge.

4.  The evidence of record confirms the applicant was separated based on a voluntary request for resignation and the medical evidence he now provides fails to show his respiratory/asthma condition rendered him unfit to perform the duties of his grade and specialty at the time of his discharge.  In fact, the applicant confirmed in the DA Form 2697 he completed on 18 January 2008 that he was not suffering from any condition that limited his ability to perform duties in his military specialty or that required geographic or assignment limitations.

5.  Although it appears clear the applicant was in fact suffering from respiratory issues that onset during his deployment to Iraq, there is no evidence of record and the medical evidence he submits fails to show this condition rendered him unfit for further military service or supported his separation processing through medical channels at the time of his discharge.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.

6.  The evidence of record and independent evidence submitted by the applicant was more than sufficient to serve the interest of justice in this case.  Therefore, a personal appearance formal hearing is not necessary.



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 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)                                         AR20110017441



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ABCMR Record of Proceedings (cont)                                         AR20110017441



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