BOARD DATE:	  16 October 2012

		DOCKET NUMBER:  AR20120006449 


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 an increase in his Army disability rating.

2.  The applicant, in effect, states:

   a.  he believes his disability rating should have been higher than
20 percent (%) at the time of his discharge;

   b.  his Department of Veterans Affairs (VA) individual disability ratings total over 100% and resulted in his combined service connection disability rating of 80%, backdating to August 1994, the date of his discharge; and
   
   c.  his health is getting worse and he should be granted a full retirement based on his disabilities and VA disability rating.

3.  The applicant provides the following documents in support of his application:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* three self-authored statements
* Army Review Boards Agency letter dated 22 November 2011
* 1600-plus Army medical records, Biloxi VA Medical Center medical records, and other miscellaneous documents
* Congressional Inquiry documents (6 pages)
* Chris Beauty College Letter
* Mississippi First Judicial District Judgment of Divorce

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's military records show he enlisted in the Regular Army on 2 July 1982.  He was trained in, awarded, and served in military occupational specialty 11M (Fighting Vehicle Infantryman).

3.  His record includes a DA Form 3349 (Physical Profile Record), completed on 15 March 1999, which shows that based on his diagnosis of "asthma," he was assigned a rating of "3" in the physical capacity factor "P" of his physical profile serial (PULHES).   It also shows he was pending a medical evaluation board (MEB).

4.  The PULHES factors represent the following portions of an individual's anatomy:

* P = physical capacity or stamina
* U = upper extremities
* L = lower extremities
* H = hearing and ears
* E = eyes
* S = psychiatric

5.  A DA Form 3947 (MEB Proceedings), dated 1 June 1994, shows an MEB referred the applicant to a physical evaluation board (PEB) based on the following two conditions:

* Severe reactive airway disease and exercised induced broncho-spasm not responding to maximum use of medication (incurred while entitled to base pay)
* Seasonal allergic rhinitis, presently on immunotherapy (existed prior to service, not incurred while entitled to base pay)
6.  On 2 June 1994, the MEB findings and recommendation were approved.  The applicant did not desire to continue serving on active duty and agreed with the MEB findings and recommendation on 3 June 1994.

7.  On 20 June 1994, an informal PEB at Fort Lewis, Washington, found the applicant to be unfit for further service due to "exercise induced asthma/reactive airway disease, with diminished breathing (67% of normal) by testing but with return to normal with nebulization, under VA Schedule for Rating Disabilities (VASRD) code 6602.  The PEB recommended the applicant be separated with 10% severance pay.

8.  On 21 June 1994, the applicant concurred with the findings and recommendations of the PEB and waived his right to a formal hearing of his case.

9.  On 27 June 1994, the PEB revised its proceedings to show that the applicant's disability did not result from a combat related injury as defined in
Title 26, U.S. Code Section 104.  The adjutant general approved the PEB's recommendation on 27 June 1994.

10.  Headquarters, 4th Infantry Division (Mechanized), Orders 203-0001, dated 
22 July 1994, directed the applicant’s discharge from active duty on 28 July 1994 with a 20% disability rating.  It also shows Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) was the authority for his discharge.

11.  The DD Form 214 he was issued at the time shows he was discharged by reason of "disability with severance pay" in the rank of staff sergeant after completing a total of 12 years and 1 month of creditable active service.

12.  The applicant provides a VA letter dated 6 January 2012, which shows he was granted an 80% combined service-connected disability rating for the following disabilities as indicated:

* Bronical asthma												30
* Right hip injury												20
* Tinnitus														10
* Ulnar nerve compression, left upper extremity			10
* Lumbosacral strain											10
* Degenerative joint disease of right knee					10
* Peroneal tendonitis, right ankle							10
* 
Peroneal tendonitis, left ankle								10
* Headaches													10
* Bilateral sensironeural hearing loss						00

13.  The applicant provides 1600 pages of his medical record detailing his medical history and treatment he received during and after his military service.  He also provides additional miscellaneous document extracts that include his children's birth certificates, final judgment of divorce, Chris' Beauty College enrollment verification, VA letters, and other documents.

14.  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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, 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.

15.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities.  It states, in pertinent part, that 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.

16.  Title 38, U.S. Code, sections 310 and 331, 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 error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.

17.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be authorized medical retirement because he received a combined 80% VA rating for additional medical conditions not considered by the Army during the PDES process was carefully considered.  However, there is insufficient evidence to support this claim.

2.  With the exception of the applicant's " exercise induced asthma… ",  there is no evidence suggesting he was suffering from any additional disqualifying mental or medical conditions at the time of discharge that would have supported an inclusion of any such condition in the evaluation process during his separation processing through medical channels.

3.  By regulation, the mere presence of an 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.  Only unfitting conditions or defects or those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

4.  The evidence of record confirms that a PEB, after examining all the medical evidence, determined that the applicant’s "exercise induced asthma/reactive airway disease, with diminished breathing (67% of normal) by testing but with return to normal with nebulization" made him unfit for further service and recommended his separation with severance pay based on a combined 
20% disability rating.

5.  The record further confirms the applicant concurred with the findings and recommendations of the PEB and there is no indication that he attempted to have those findings changed while he remained on active duty.  As a result, it is concluded that the applicant was properly processed through the Army's PDES.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the PDES process.

6.  The PEB findings and recommendations, to include the assigned disability rating, were based on a comprehensive medical evaluation of his disabling medical conditions by competent medical authorities through the PDES process. 
A subsequent change or worsening of those conditions would not call into question the validity of the disability ratings that were assigned during the PEB process and there is absolutely no evidence suggesting the PEB findings and recommendations were arbitrary or capricious.

7.  Notwithstanding the applicant's treatment for additional medical conditions during his active duty tenure, there are no medical records that indicate he suffered from any other unfitting or disqualifying condition at the time of his PDES processing.  The existence of other service-connected conditions that were not considered disabling during the PEB process does not warrant changing the narrative reason for the applicant’s discharge, nor the disability rating assigned by the PEB which was based solely on the disabling unfitting medical conditions evaluated.

8.  The evidence of record also confirms the applicant is properly receiving treatment with the VA which is the appropriate agency to render long term care and disability evaluation for service-connected medical conditions.  The VA can evaluate him throughout his lifetime, adjusting the percentage.

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)                                         AR20120006449





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006449



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1