BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120002170 


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 retired instead of being honorably discharged for disability with severance pay.

2.  The applicant states he should be medically retired because there were a lot of errors made when he was discharged.  He had additional disabilities such as high blood pressure, sinusitis, and the severity of his lung problems that were missed by the medical authorities.

3.  The applicant provides:

* six self-authored statements
* a letter from his Department of Veterans Affairs (VA) doctor, dated 16 May 2012

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 enlisted in the Regular Army on 8 October 1991 and he held military occupational specialty 13B (Cannon Crewmember).  His last duty assignment was at Fort Drum, NY.

3.  The only medical document in his record is a DA Form 3349 (Physical Profile), dated 28 October 1993.  This form shows he received a permanent level 3 (P-3) physical profile under the "P" factor (physical capacity or stamina) for asthma that prevented him from taking the Army Physical Fitness Test.

4.  His record also contains Orders Number 073-00222, issued by Headquarters, 10th Mountain Division (Light Infantry), Fort Drum, dated 14 March 1994.  These orders show he was scheduled to be discharged on 30 March 1994 and authorized disability severance pay at a percentage of disability of 10 percent (%).

5.  On 30 March 1994, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b, by reason of disability with severance pay.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received disability severance pay in the amount of $4,343.80.

6.  He provided a self-authored statement entitled "Type of Discharge" wherein he states he received a disability discharge and he was given $4,348.80.  He thought this was the first of many installments for his 10% service-connected disability for asthma; however, he was mistaken.  He was not able to find work because he was a disabled veteran with asthma.  The only asthma medication he had was what he was able to stock up on while he was still in the Army.  In 1996, he moved to GA and he was seen at a VA hospital where he was diagnosed with high blood pressure and sinusitis.

7.  He provided a self-authored statement entitled "Present Status" wherein he states he is currently receiving an 80% service-connected disability and he is unemployable.

8.  He provided a self-authored statement entitled "I request the following correction" wherein he states he should be medically retired because the doctors made many errors and did not stabilize his asthma before he was discharged.  They missed his high blood pressure and sinusitis which were clearly indicated in his medical records.  He further stated he should be medically retired without delay, because any delay would be a disgrace and unjust to him, his family, and the country.

9.  He provided a self-authored statement entitled "My History" wherein he discusses his childhood and time in the Army.  He stated he served in the Army as a 13B.  He stated he began to have asthma attacks after a field problem at Fort Ord, CA, where they fired rounds all day.  He stated the thick smoke made him short of breath and hurt his chest.  He later began having frequent asthma attacks after firing rounds or running.  Finally, while stationed at Fort Drum, he had an asthma attack that was so severe he had to be revived.  After this attack his commander made the decision to recommend him for a medical evaluation board (MEB).

10.  He provided a letter from his VA doctor, dated 16 May 2012, wherein he stated the applicant was diagnosed with degenerative joint and disc disease of the lumbar spine, degenerative joint disease of the right ankle, possible right shoulder rotator cuff impingement syndrome, bilateral tri-compartmental degenerative knee arthritis, and asthma.  His doctor feels these medical conditions are the result of lifting heavy artillery rounds and breathing in toxic fumes/smoke from the expended rounds while he was in the Army.

11.  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 or her office, grade, rank, or rating.  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.  Separation by reason of disability requires processing through the PDES.

12.  Chapter 4 of this regulation contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.  These findings and recommendations include a determination of whether or not the disability is combat-related as defined in U.S. Code.

13.  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 empowered 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 may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be medically retired because in addition to his asthma, he has high blood pressure and sinusitis which went undiagnosed while he was in the military.  He bases his argument on the fact that he receives an 80% service-connected disability from the VA and is considered unemployable.

2.  The only medical document in the applicant's record is a permanent profile showing the diagnosis of asthma and his inability to take an APFT.  His statement that he was discharged due to his asthma, his profile, as well as his orders showing he received a 10% service-connected disability with severance pay for asthma indicates he was processed through the PDES to include a PEB.

3.  The available records do not show his unfitting condition was due to high blood pressure or sinusitis.  In the absence of such documentation, it must be presumed the PEB correctly characterized his unfitting condition.

4.  There are two important concepts involved in his case which require clarification.

	a.  One, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	b.  Two, when identified, diagnosed, evaluated, and rated, a disability rating 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.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated by the PEB.  However, the VA could potentially rate all service-connected conditions.

	c.  Since he did not have the conditions he now contends at the time of his separation in 1994, they would not have been rated.  However, even if he did have these conditions at the time, there is no evidence that they would have rendered him physically unfit.

5.  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)                                         AR20120002170



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002170



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1