BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120003542 


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 record to show he was retired in the rank/grade of sergeant (SGT)/E-5 instead of specialist (SPC)/E-4.  He further requests his disability percentage be increased from 30% to 90% in accordance with his current disability rating rendered by the Department of Veterans Affairs (DVA).

2.  The applicant states, in effect, he was an SPC/E-4 at the time he was placed on the Temporary Disability Retired List (TDRL) and he should have been retired as an SGT/E-5 because he was in a promotable status.  He contends that although he never appeared before a promotion board, he should have been promoted based upon his time in grade (TIG) as an E-4.  He contends he was not promoted because he was flagged against favorable actions due to medical reasons.  He attests that everything in his military record, to include his Enlisted Record Brief (ERB), shows he was promotable, but flagged due to medical reasons.  He states Warrior Transition Units (WTU) did not exist at the time of his retirement, but if they did, he would have been retired as an SGT/E-5.

3.  The applicant also states his medical retirement with a 30% disability rating was only based on his condition of asthma.  He contends his other conditions should have been included in the evaluation which would have resulted in a higher disability percentage more in line with the 90% rating he received from DVA.



4.  The applicant provides no additional 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 enlisted in the Regular Army on 4 October 2000 in the rank/grade of private (PV2)/E-2.  He completed initial entry training and he was awarded military occupational specialty 15S (OH-58D Helicopter Repairer).

3.  His record contains two DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard) that shows the result of three APFTs.  Each show he performed the alternate walking event in lieu of the running event.  These forms also show on:

* 18 August 2003, he passed the APFT, but failed the weight test
* 27 January 2004, he passed the APFT, but failed the weight test
* 12 August 2004, he failed the APFT and the weight and body fat percentage test

4.  His record contains a computer generated copy of a Standard Form (SF) 502 (Narrative Summary - Medical Record), entitled Medical Evaluation Board (MEB) Consultation that was dictated on 6 January 2005.  This document contains the following pertinent information:

	a.  Chief complaint:  Increasing shortness of breath and chest tightness.

	b.  History of present illness:  The examining physician noted the applicant had a history of increasing shortness of breath and tightness in the chest since being in Iraq.  His symptoms were consistent with allergic rhinitis with nasal sinus plugging, runny nose, itchy nose and itchy eyes.  He also complained of persistent post-nasal drip in the morning, especially with weather changes.  He felt he could do physical training (PT) without any problems; however, he had not tried to pass the test.  He was considerably overweight for his height, but felt his weight was not a problem for PT because he could outrun most people.  He stated he was complaining of shortness of breath prior to deploying to Iraq and had been prescribed Albuterol.  He admitted to smoking a 1/2 to 3/4 of a pack of cigarettes for the past 7 years.  His pulmonary functions were tested and showed improvement since being tested in October 2004.  He complained of being unable to sleep solidly since prior to his deployment to Iraq.

	c.  Laboratory and X-ray data:  Recent laboratory studies showed an elevated white blood count with no shift to the left and no eosinophilia.  He was prescribed medication to treat this condition.  He had an abnormal chest X-ray with elevation of the left hemidiaphragm.  Etiology was uncertain at the time.  Skin testing was performed that showed numerous 4+ reactions to trees, grasses, weeds, and environmental, such as cat, dog, dust mite, cockroach, molds, and shellfish.  He also had a 3+ reaction to peanuts.

	d.  Assessment:  

		(1)  Chronic moderate persistent asthma with probable silent acid reflux.

		(2)  Smoker; smoking cessation was recommended.

		(3)  Obesity.

		(4)  Hyperthyroidism, which may actually be an initial phase of hypothyroidism, such as secondary to thyroiditis.

	e.  Plan:  He was referred to Internal Medicine for further evaluation of his abnormal thyroid studies.

	f.  Recommendation:  The physician noted the applicant was seen in follow-up with no significant improvement in pulmonary function after several weeks.  As a result, the physician referred the applicant to a Physical Evaluation Board (PEB) for final adjudication due to multiple medical problems, including obesity, hypertension, chronic obstructive asthma, perennial allergic rhinitis with multiple food allergies (including shellfish and peanuts) and his inability to wear a chemical protective mask.

5.  His record contains a Memorandum for Record by his Squadron Commander, subject:  Letter of Creditability for (applicant's name and social security number), dated 21 January 2005.  The commander noted the applicant was currently unable to take the APFT because of his physical profiles and he was scheduled to re-deploy with the unit in support of Operation Iraqi Freedom (OIF) in March 2005.  The commander stated the applicant currently worked at a physical fitness 

center because the limitations of his profile for asthma did not allow him to be around products used for aircraft maintenance.  His performance had been good, even though he was not able to work in his MOS.  Despite the physical limitations of his profiles, he still played a role in accomplishing the unit's mission.

6.  His record contains a computer generated SF 502, entitled MEB Summary that was dictated on 23 March 2005.  This document contains the following pertinent information:

	a.  Reason for referral and eligibility:  "This is a physician-directed Medical Evaluation Board."

	b.  Chief complaint:  "My lungs."

	c.  Onset:  In February 2001, while attending advanced individual training, the applicant noted some tightness in his chest.  He reported he was diagnosed with acute bronchitis and given an Albuterol inhaler to use.  In January 2002, he again had some tightness in his chest that required an office visit wherein he received a nebulization treatment.  In November 2002, he reported he was diagnosed with asthma by an allergist; however, his unit decided to take him to Iraq anyway.  While in Iraq, he continued to use his Albuterol inhaler and stated his condition got a little worse, but he just dealt with it.  When he returned from Iraq in March 2004, his primary care provider discontinued Albuterol and added Advair and Combivent to his prescribed medications.  In November 2004 he had some worsening of his symptoms that required a 5-day course of oral Prednisone.  He followed up with his doctor and underwent pulmonary studies at the end of 2004 that revealed a 16% improvement in the FEV1 with bronchodilators.  He also underwent skin testing that showed multiple allergies to trees, grasses, mites, etc.  He was kept on Advair and Combivent and he was placed on a permanent level 3 profile in January of 2005 and referred to an MEB.  He had never been hospitalized for his asthma.

	d.  Current status:  The applicant reported he had noted an "about 40% improvement overall" on his medications.  He still experienced symptoms of shortness of breath, coughing, and tightness of his chest.  He also had some nasal symptoms of stuffiness occurring about once a week for which he used nasal spray on occasion.  He had not required any emergency room visits, hospitalizations, or intubations for his asthma.  His symptoms were intermittent and worsened with exercise.  Sometimes when he was symptomatic, he could only walk a few steps before getting an increase in his symptoms.  He reported he had been unable to do PT since September 2004.

	e.  Past medical history:  His military entrance physical examination conducted in 2000 was unremarkable and no previous history of asthma or long related problems were noted.  Review of his medical record revealed the following problems in the past:  history of hypertension for which he took medication for a while until he stopped in 2004; right medial collateral ligament sprain of his knee; pseudofolliculitis barbae [better known as razor bumps]; patellar tendonitis resulting in chronic left knee pain; Gastroesophageal reflux disease (GERD); seborrhoic dermatitis (a common, inflammatory skin condition that causes flaky, white to yellowish scales to form on oily areas such as the scalp or inside the ear); dyslipidemia (high blood cholesterol levels); and recently obstructive sleep apnea.

	f.  Functional status and prognosis:  The applicant had not worked in his MOS since November 2004.  He reported his current duties were working at a gym handing out towels and doing some cleaning.  His medical condition affected his performance of his MOS in that strenuous activities irritated his lungs.  Other military training duties affected included:  inability to move with a fighting load, wear a protective mask and chemical protective equipment or do 3 to 5 second rushes.  He failed his most recent APFT on 14 August 2004.  The applicant did not want to continue on active duty.  His commander confirmed he could not perform his MOS duties.  The prognosis could be estimated as stable and there had been no compliance issues.

	g.  Diagnosis(es):  The applicant failed to meet retention standards under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) for the following condition:  Chronic Moderate Persistent Asthma.

	h.  Additional diagnoses:

* Nasal allergies
* Obstructive sleep apnea (intolerant of continuous positive airway pressure (CPAP) and with only minimal daytime drowsiness; not unfitting
* Seborrheic dermatitis
* Mild hyperthyroidism
* Chronic left knee pain
* Dyslipidemia

	i.  Profile and duty restrictions:  312111 with no moving with a fighting load, no wearing of face mask and chemical protective equipment, no 3 to 5 second rushes, alternative APFT of walk or bike, and run at own pace and distance.

	j.  Disposition:  The applicant was referred to a PEB for final adjudication of fitness for duty.

7.  His record contains a DA Form 3349 (Physical Profile), dated 13 April 2005, that shows his medical conditions at the time as:  Asthma and Chronic left knee pain.  As a result of these medical conditions, he was assigned a permanent physical profile of 312111 with the following assignment limitations:

* Run at own pace and distance
* Unable to move with a fighting load at least 2 miles
* Unable to wear protective mask and all chemical defense equipment
* Unable to do 3 to 5 second rushes under direct and indirect fire
* Nondeployable due to his medical condition
* Must have access to medical care for asthma medications
* Pending an MEB

8.  His record contains a DA Form 3947, dated 20 April 2005, that shows he underwent an MEB at Evans Army Community Hospital, Fort Carson, CO.  The MEB determined he suffered from one condition that rendered him unfit for retention in accordance with the provisions of Army Regulation 40-501, paragraph 3-27a:  Chronic moderate persistent asthma.  The MEB further determined he had several additional diagnoses (numbered 2, 3, 4, 5, 6, and 7) that did not render him unfit because they did not fall below retention standards:

* Nasal allergies
* Obstructive sleep apnea (intolerant of CPAP and with only minimal daytime drowsiness; not unfitting
* Seborrheic dermatitis
* Mild hyperthyroidism
* Chronic left knee pain
* Dyslipidemia

9.  The MEB indicated this condition of chronic moderate persistent asthma was incurred while the applicant was entitled to base pay, did not exist prior to service, and was permanently aggravated by service.  As a result, he was referred to a PEB for final adjudication.  The applicant indicated he did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings and recommendation of the MEB were approved on 27 April 2005.  The applicant agreed with the MEB's findings and recommendation on 28 April 2005.

10.  His record contains a DA Form 199 (PEB Proceedings) that shows an informal PEB convened Fort Lewis, WA on 3 May 2005.  The PEB found the applicant's asthma prevented him from performing the duties required of his grade and specialty and determined he was physically unfit because of his functional limitations in maintaining the appropriate level of stamina.  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned code 6602 for his asthma; and granted a 30% disability rating.  The PEB noted the applicant continued to smoke and he was overweight; and that both conditions aggravate asthmatic symptoms and could result in apportionment down at TDRL re-evaluation.  It was also noted his condition was not the result of misconduct, willful neglect or unauthorized absence, was incurred while he was entitled to basic pay, it was in the line of duty, and a proximate result of performing duty.  The PEB also considered the MEB diagnoses numbered 2, 3, 4, 5, 6, and 7 and found them to be not unfitting and therefore not ratable.

11.  The PEB advised him that although his impairments were rated at 30%, they were of a nature that permanent evaluation was not yet possible.  Therefore, he was placed on the TDRL pending reexamination in May 2006.  The PEB advised him that a member of an armed force may not be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury that he/she has.  The applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing on 5 May 2005.

12.  His record contains an ERB, dated 11 May 2005, which contains the following pertinent information:

	a.  Section I (Assignment Information) shows he did not hold a promotable status at the time.

	b.  Section III (Service Data) shows he held the rank/grade of SPC/E-4 with an effective date of 28 November 2003 and no indication he ever held the rank/ grade of SGT/E-5.  This section also shows he was assigned Immediate Reenlistment Eligibility/Prohibition (ERUP) Code "9Z" which indicates that he was flagged for failing to meet Army height and weight standards at the time.  

13.  His ERB does not show he was in a promotable status to SGT/E-5 at any time during his service.  Additionally, his record is void of any indication he ever appeared before a promotion board for consideration or that he was in a promotable status at the time of his placement on the TDRL.



14.  Orders 133-0007, issued by Headquarters, U.S. Army Garrison, Fort Carson, dated 13 May 2005, released the applicant from assignment and duty because of physical disability on 24 May 2005 and placed him on the TDRL effective 25 May 2005 in the rank/grade of SPC/E-4 with a disability rating of 30%.

15.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time contains the following pertinent information:

* Item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) shows his rank/grade as SPC/E-4
* Item 12h (Effective Date of Pay Grade) shows the effective date of his pay grade as 28 November 2003
* Item 18 (Remarks) shows he was discharged from enlisted status in the retired rank/grade of SPC/E-4
* Item 23 (Type of Separation) shows "Retirement"
* Item 25 (Separation Authority) shows Army Regulation 635-40, paragraph 4-24b(2)
* Item 28 (Narrative Reason for Separation) shows "Disability, Temporary"

16.  Following a final TDRL medical examination, the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, published Orders D223-03, dated 10 August 2006, that removed the applicant from the TDRL and placed him on the Retired List in the retired rank/grade of SPC/E-4 with a disability rating of 30%.

17.  The applicant's record is void of any evidence and he did not provide any evidence that shows he appeared before a promotion board for consideration to the rank/grade of SGT/E-5 at any time during his service or that he was in a promotable status to SGT/E-5 at the time he was retired and placed on the TDRL.  In a telephone conversation on 28 August 2012 with an ABCMR staff member, the applicant stated he never appeared before a promotion board for consideration to SGT/E-5, but he felt he should have been promoted to SGT/E-5 on the Retired List based upon his TIG as an SPC/E-4 in accordance with current policies for WTUs.  

18.  Title 10, U.S. Code, section 1372 states that any member of an armed force who is retired for physical disability or whose name is placed on the TDRL is entitled to the grade equivalent to the highest of the following:

	a.  the grade of rank in which he/she is serving on the date when his/her name is placed on the TDRL or the date he/she is retired

	b.  the highest temporary grade or rank in which he/she served satisfactorily, as determined by the Secretary of the armed force from which he/she is retired;

	c.  the permanent regular or reserve grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired and which was found to exist as a result of a physical examination; or 

	d.  the temporary grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

19.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides, in part:

	a.  Warrior Transition Battalion (WTB) commanders may promote, with waiver, Soldiers advancing to the rank of SPC who are assigned to that unit as a patient as long as the unit has sufficient waiver allocations as computed by the guidance in Table 2-2 (Computing waiver allocations).

	b.  Promotion to SGT/E-5 is executed in a semi-centralized manner which involves appearance before a board, promotion point calculation, promotion list maintenance at a local level.  Headquarters, Department of the Army operations determine promotion cutoff scores and the monthly SGT promotion selection by-name lists, which are determined and announced monthly.  These decisions are based primarily upon budget constraints and individual MOS requirements.

	c.  Each month, Active Army Soldiers in all MOSs who meet the following criteria will be automatically integrated onto the SGT promotion standing lists, provided they are otherwise eligible for promotion consideration despite lacking the actual promotion board appearance as outlined below:

		(1)  46 months time in service (TIS) (to become eligible for promotion at 48 months).

		(2)  10 months TIG (to become eligible for promotion at 12 months).

		(3)  Otherwise not ineligible in accordance with this regulation; to include being administratively flagged.

		(4)  Not otherwise denied by the commander.

		(5)  Soldier must have a minimum of 90 days remaining service as of the month of integration onto the recommended list.  

20.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this regulation, in pertinent part, provided 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.  The regulation 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.  

21.  Army Regulation 635-40 provides that a Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired.  Medical examiners and adjudicative bodies will carefully evaluate each case.  They will recommend removal of the Soldier's name from the TDRL as soon as the Soldier's condition permits.  Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed under Title 10, U.S. Code, section 1210.  The USAPDA will remove a Soldier from the TDRL as described below on the fifth anniversary of the date the Soldier's name was placed on the list, or sooner on the approved recommendation of a PEB for permanent retirement if the Soldier meets the criteria below, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay:

	a.  The Soldier is unfit.

	b.  The disability causing the Soldier's name to be placed on the TDRL has become permanent.

	c.  The disability is rated at 30% or more under the VASRD, or the Soldier has at least 20 years of active Federal service.


22.  Title 38, U.S. Code, sections 1110 and 1131, permits the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA 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 DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the DVA 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.  Evidence clearly shows the applicant was promoted from PFC/E-3 to SPC/E-4 on 28 November 2003.

2.  Evidence also shows the applicant was subsequently retired from active duty on 23 May 2005 and placed on the TDRL in the rank/grade of SPC/E-4 with a disability rating of 30%.

3.  The applicant's record is void of any evidence showing he appeared before a promotion board for consideration to the rank/grade of SGT/E-5 at any time during his service or that he was in a promotable status to the rank/grade of SGT/E-5 at the time he was retired and placed on the TDRL.  Additionally, the applicant attested to the fact that he never appeared before a promotion board.  Finally, evidence shows he was flagged for being overweight at the time of his separation; therefore, he was not eligible for automatic integration onto the SGT promotion standing lists.  As a result, there is no basis for promoting him to SGT/E-5 on the Retired List.

4.  The applicant's commander opined that his condition of asthma rendered him unable to perform his duties and referred him to medical authorities for an assessment.  As a result, he was seen by various medical specialists and recommended for entry into the Physical Disability Evaluation System (PDES).  He underwent an MEB that determined he failed to meet retention standards under the provisions of Army Regulation 40-501 for chronic moderate persistent asthma.  The MEB also noted he suffered from the following additional diagnoses that were not determined to be unfitting:

* Nasal allergies
* Obstructive sleep apnea (intolerant of continuous positive airway pressure (CPAP) and with only minimal daytime drowsiness; not unfitting
* Seborrheic dermatitis
* Mild hyperthyroidism
* Chronic left knee pain
* Dyslipidemia

5.  As a result, the MEB referred the applicant to a PEB for final adjudication.  The findings and recommendation of the MEB were approved on 27 April 2005.  The applicant agreed with the MEB's findings and recommendation on 28 April 2005.

6.  The PEB found his asthma prevented him from performing the duties required of his grade and specialty and determined he was physically unfit because of his functional limitations in maintaining the appropriate level of stamina.  He was rated under the VASRD, assigned code 6602 for his asthma; and granted a 30% disability rating.  The PEB also considered each of his other MEB diagnoses and found them to be not unfitting and therefore not ratable.  The PEB recommended the applicant be placed on the TDRL with entitlement to retired pay at the rank/grade of SPC/E-4.  He agreed with the recommendation.  As a result, he was honorably retired and placed on the TDRL pending follow-up medical examinations to determine his final disposition.

7.  On 10 August 2006, following a final TDRL medical examination, the applicant was removed from the TDRL and placed on the permanent Retired List in the retired rank/grade of SPC/E-4 with a disability rating of 30% based upon his asthma.

8.  He attests the DVA awarded him a disability rating of 90% and he now believes the PEB should have awarded him a combined disability rating of at least 90% for his combined conditions that would be in line with his DVA rating.

9.  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.  The applicant was properly rated in accordance with provisions of the VASRD for his condition at the time.  There is no evidence to support a higher rating or medical retirement.

10.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the PEB's recommendation.  There is no error or injustice in this case.  Therefore, in view of the foregoing evidence, he is not entitled to the 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)                                         AR20120003542



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ABCMR Record of Proceedings (cont)                                         AR20120003542



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