IN THE CASE OF:	  

		BOARD DATE:  27 November 2012

		DOCKET NUMBER:  AR20120008900 


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, in effect, correction of his records to show he was discharged for a physical disability with entitlement to compensation.

2.  The applicant states:

   a.  While serving as an intelligence analyst in the Army his left ear drum was perforated by a military doctor.  The perforation caused a cholesteatoma in his left ear from the first surgery.  The cholesteatoma caused 40 decibels of conductive hearing loss.  The first surgery was successful and his hearing returned and the tumor was removed.

   b.  Approximately 4 years later, the tumor returned and Dr. Fxxxxxx performed a revision mastoidectomy.  Since the surgery he has had ringing in his ear and hearing loss of around 60 decibels.  He has also experienced vertigo and has fallen due to imbalance.  He was enrolled in Lakeland Community College and had to withdraw due to the ringing in his ear.  Dr. Hxxxxxxxx wrote a letter which allowed him to withdraw.  His left side of his face also has nerve damage.  He has been prescribed clonazepam medication to help with the constant ringing in his left ear.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 
two DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard)
* Department of Veterans Affairs (VA) Form 21-526b (Veteran’s Supplement Claim for Compensation)
* VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs)
* medical operative reports
* Outpatient Surgery Report
* Surgical Pathology Report
* Six medical assessment
* letters from four medical doctors

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 record shows he enlisted in the U.S. Army Reserve Delayed Entry Program on 28 September 2002.  He enlisted in the Regular Army on 7 January 2003.  He completed training and he was awarded military occupational specialty (MOS) 96B (Intelligence Analyst).  

3.  On 17 December 2004, he was assigned a permanent profile of 311111 PULHES for asthma.  It was stated he needed a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB).  His restrictions consisted of the:  APFT sit-ups, push-ups, and the walking.  Wearing of the promask as tolerated and PT at his own pace and distance.

4.  An MEB convened in February 2005 and considered his medical condition of mild persistent asthma originating in 1984.  The MEB determined he was medically unacceptable per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 3-27a(1).  The MEB referred him to a PEB.


5.  On 24 February 2005, he concurred with the findings and recommendations of the MEB and stated he did not desire to continue on active duty.

6.  An informal PEB convened on 14 March 2005 and considered his medical condition of asthma.  The PEB found him fit for duty in his current grade and specialty.  The PEB concluded that he did not have any functional impairment which prevented satisfactory performance of duty.  The PEB stated the deployability was a commander’s decision, but non-deployability was not an unfitting condition.  

7.  He received the following counselings:

* 28 March 2005 for his responsibility to prepare for deployment to Iraq
* 1 April 2005 for failing to pass the record APFT

8.  On 8 April 2005, he non-concurred with the findings and recommendation of the PEB and submitted a rebuttal letter.  In his letter, dated 6 April 2005, the applicant stated:

   a.  He was presently scheduled for deployment to Iraq and he was unfit for deployment because his asthma prevented him from performing his military duties in any setting.  The PEB’s decision concerning his fitness for duty was against the manifested weight of available medical evidence and should be reversed.  

   b.  Since the PEB determination, he failed the APFT on 1 April 2005 because his asthma prevented him from completing the alternate aerobic event.  The MEB found him medically unacceptable per Army Regulation 40-501.  This recommendation was approved by the reviewing doctor on 18 February 2005.

   c.  In his medical history, dated 23 December 2004, Dr. Nxxxxx found that he had a “life long history of asthma.”  Dr. Nxxxxx also indicated that he was giving a P3 profile to restrict movement with his unit to Iraq.  On 8 February 2005, his commander specifically stated that his limitation prevented him from performing in a deployable field environment and did not recommend that he remain on active duty.  His profile merely described the activities that his asthma prevented him from engaging in.  If he deployed, he would shortly be medically evacuated because his asthma would prevent him from performing his duties.

   d.  The PEB should reverse their decision and find that he was not physically fit for deployment into a combat area and was not physically fit to remain on 
   
active duty.  When the overall effects of his asthma are considered, he is unfit.  He cannot consistently do PT with his unit or consistently pass the APFT.

9.  In a letter, dated 12 April 2005, the PEB president advised the applicant of the following:
   
   a.  The PEB had received his letter of rebuttal.  In that rebuttal he did not provide information as to any new diagnosis or changes in his current rated disability.  The review affirmed the decision of the informal PEB that found him fit. 

   b.  He was found fit for duty for the reasons stated on the PEB Proceedings.  The inability to deploy is not grounds for a finding of unfitness.  Deployability is a commander’s call.  His profile allowed him to perform all the duties of a Soldier of his grade, MOS, and current assignment.

10.  On 20 April 2005, the Chief, Operations Division, U.S. Army Physical Disability Agency (USAPDA), advised the applicant's command that the findings of the PEB pertaining to the applicant were approved.

11.  A Report of Mental Status Evaluation, dated, 10 May 2005, shows the applicant's behavior to be passive and aggressive.  He was fully alert and fully oriented.  His mood was depressed, thinking process was clear, thought content was normal, and his memory was good.  The examining medical doctor stated that it was clear the applicant would have significant problems trying to adjust to military lifestyles and occupations.  His inability to adapt to the military was due to an Adjustment Disorder with Depressed Mood that significantly affected his ability to process current stress.  He had received all possible mental health treatments and consultation in Theater, and it was strongly recommended that he be expeditiously administratively separated from the military at the convenience of the government.

12.  The applicant was found to be mentally responsible.  He was psychiatrically cleared for any administrative action deemed appropriate by the command.  

13.  On 31 May 2005, he received counseling for his possible separation based on an adjustment disorder with depressed mood (under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, for other designated physical or mental conditions.

14.  On 3 June 2005, the applicant's company commander notified the applicant of action to separate him under the provisions of Army Regulation 635-200, for 

having a physical condition, with an honorable discharge.  The reasons for the proposed action were that a qualified physician diagnosed him as having an adjustment disorder and depression.  The applicant was also advised of his rights.

15.  On 3 June 2005, after consulting with counsel, the applicant acknowledged receipt of the proposed separation and the reason.  He waived his rights and elected not to submit a statement in his own behalf.
16.  On 3 June 2005, the applicant's company commander recommended the applicant be separated from the Army under Army Regulation 635-200, paragraph 5-17, with an honorable discharge.  

17.  On 1 June 2005, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-17, with the issuance of an Honorable Discharge Certificate.

18.  He was honorably discharged in pay grade E-4 on 9 July 2005 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a physical condition, not a disability.  He was credited with completing 2 years, 6 months, and 3 days of net active service and no time lost.

19.  Army Regulation 635-200, paragraph 5-17, provides for the separation of enlisted Soldiers for other designated physical or mental conditions.  A commander may approve separation under this chapter on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 5-11 or 5-13, that potentially interfere with assignment to or performance of duty.  The commander will refer the Soldier for a medical examination and/or mental status evaluation.  

20.  Army Regulation 635-40, then in effect, provided for the expeditious discharge of enlisted personnel who, in accordance with Army Regulation        40-501, chapter 3, were not qualified for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.  An adjustment disorder was not grounds for separation due to disability but could be grounds for an administrative separation.

21.  The documentation he provided shows he was diagnosed with cholesteatoma sometime in 2006 and underwent surgery in October 2006.  From the medical documents it appears his other medical condition also began in 2006.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was assigned a P3 profile for asthma and referred to an MEB.  An MEB found him medically unacceptable for 
continued service and referred him to a PEB.  An informal PEB found him fit to perform all the duties of a Soldier of his grade, MOS, and current assignment.  His appeal of the findings was denied and the PEB’s decision was approved on 20 April 2005.  

2.  The evidence of record also shows he was deployed in May 2005 and was subsequently diagnosed with an adjustment disorder and depressed mood.  The examining medical doctor stated that the applicant was unable to adapt to the military and was unable to process current stress.  It was recommended he be expeditiously administratively discharged.

3.  On 3 June 2005, his company commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 5-17.  On the same day, he acknowledged the proposed separation action.  The separation authority approved his discharge and he was discharged accordingly on 9 July 2005.

4.  His contentions and the documentation he provided were carefully considered.  However, there is no evidence of record and he has provided none to show he was unable to perform the duties of his MOS at the time of his separation for asthma or his current medical conditions.  There appears to be no errors in his MEB and PEB which would warrant further consideration.

5.  There is also no evidence of record he sustained a perforated ear drum and underwent surgery during his period of service.  The documentation he provided shows he was diagnosed with cholesteatoma sometime in 2006 and underwent surgery in October 2006 which was after his discharge.  From the medical documents it appears his other medical conditions also began in 2006 and are not related to his military service.  There is no evidence to show either he or his commander believed he was unfit to perform his duties for any reason other than for asthma.

6.  There is an absence of evidence to support his contentions for entitlement to a discharge for physical disability.  He has submitted neither probative evidence nor a convincing argument to support the requested relief and to show his medical condition of amounted to a disability separation under the provisions of Army Regulation 635-40.  


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)                                         AR20120008900





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ABCMR Record of Proceedings (cont)                                         AR20120008900



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