IN THE CASE OF:	   

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110019817 


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 correction of his records to show he was medically discharged or medically retired with entitlement to back pay and allowances from 1992 to the present instead of honorably discharged.

2.  The applicant states:

* the Army misdiagnosed his chronic medical condition in October 1987 and doctors continued their failure to properly diagnose him from 1987 to 1992 when he was discharged
* the Army’s failure to provide the correct diagnosis denied him a medical retirement for a serious chronic condition
* the Department of Veterans Affairs (VA) correctly diagnosed him with the right medical condition of pancytopenia (a medical condition in which there is a reduction of red and white blood cells as well as platelets)/chronic cyclic neutropia

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Selected service medical records from 1985 to 1992
* VA medical records (discharge summary, progress notes, consults, radiology reports, laboratory results, and other VA medical documents)
* Two statements

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests correction of the applicant’s records to show he was medically retired.

2.  Counsel states the applicant found it difficult to perform his duty as an infantry officer while ill and seeking treatment.

3.  Counsel did not provide any evidence.

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 was appointed as a U.S. Army Reserve (USAR) commissioned officer and he executed an oath of office on 10 May 1980.  He entered active duty on 6 June 1980, served in a variety of stateside or overseas assignments, and he was promoted to captain (CPT).

3.  On 15 April 1992, subsequent to his request for voluntary discharge from active duty, HQDA approved his request for discharge under the provisions of Army Regulation 635-100 (Personnel Separations - Officer Personnel) and the Voluntary Incentive Program - Special Separation Benefit (VSI-SSB).

4.  He was honorably discharged from active duty on 15 April 1992 with entitlement to $64,041.71 of SSB benefits.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 11 years,
10 months, and 10 days of creditable active service.

5.  His service medical records are not available for review with this case.  There is no indication in the available records that shows he was:

* diagnosed with an illness or injury that rendered him unable to perform the duties of his rank, grade, or military specialty
* diagnosed with an illness or injury that warranted his entry into the Army physical disability evaluation system (PDES)
* issued a permanent physical profile or that he was medically unqualified for separation
* assigned any medical limitations and/or a physical category code listing a medical disqualification

6.  The applicant submitted selected service medical records as well as various VA medical records and two statements as follows:

	a.  Service medical records between 1985 and 1990 that show he was admitted to the internal medicine clinic in Hawaii on 14 October 1987 and that he was discharged from the hospital on 27 October 1987.  He was evaluated and diagnosed with undifferentiated febrile illness with cervical lymphadenitis. 

	b.  Various VA medical records (discharge summary, progress notes, consults, radiology reports, laboratory results, and other VA medical documents, dated on various dates in 2010) that show a diagnosis of pancytopenia/chronic cyclic neutropia.  

	c.  A statement, dated 22 September 2010, from an individual who states he experienced the same sickness between 2007 and 2008, characterized by headaches, high temperatures, shaking, chills, nausea, and vomiting.  The author adds that the applicant was generally sick and had to leave work because he could not perform his duties.

	d.  A statement, dated 22 September 2010, from the applicant’s spouse to the VA.  She chronicles the various illnesses the applicant had over the years, and alleges that the Army doctors misdiagnosed him.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) currently in effect establishes the Army 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 or her office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  Paragraph 3-2b states 

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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a member is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his/her rank or grade until the member is scheduled for separation/retirement, creates a presumption that the Soldier is fit. 

8.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).

9.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent (%).  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from June 1980 to April 1992.  He voluntarily submitted a request for discharge under the VSI-SSB program.  Nearly 7 years prior to his discharge, he was admitted to the hospital in Hawaii in what appeared to be a virus at the time.  He submits records that show he was evaluated and diagnosed with undifferentiated febrile illness with cervical lymphadenitis.
2.  The applicant’s record is void of any medical condition that would have rendered him unable to perform the duties required of his grade or specialty or warranted his entry into the PDES.  In fact, the applicant continued to perform his military duty up to the point of voluntary separation.  Disability processing does not apply to him because his career was not terminated for reasons of disability.  As such, the presumption of fitness applies in his case.  

3.  In the absence of a separation physical that found him medically unqualified for retention or separation, it is presumed he underwent a separation physical for this period of service and he was found medically qualified for separation.  There is no evidence of record and he did not provide any substantiating evidence that shows at the time of his discharge from active duty, he was medically disqualified for retention or separation.  Additionally, nowhere in his records does it show he:

* was issued a permanent physical profile
* suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS
* was referred to the Army PDES

4.  Even if he suffered an injury or an illness, the mere presence of impairment does not, in and 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

5.  Furthermore, a diagnosis by the VA - nearly 20 years after the applicant’s separation - does not establish an error by the Army or prove that Army doctors misdiagnosed him.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may diagnose a member and award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability.  A disability rating, if and when assigned by the Army, is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

6.  Although he contends the Army misdiagnosed him in 1987, the symptoms for which he was hospitalized in 1987 bear no resemblance to the condition he now has.  Additionally, although many of the current symptoms that led to his current VA diagnosis had been present since active service - for example ocular symptoms and mucosal lesions - the available medical records do not support this assertion.  

7.  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)                                         AR20110019817



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ABCMR Record of Proceedings (cont)                                         AR20110019817



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