IN THE CASE OF:	   

		BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130002832 


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, voidance of her separation by reason of sufficient service for retirement and retirement by reason of permanent disability.

2.  The applicant states she believes that had she received the right information from her doctors, she would have benefitted from a medical retirement as opposed to a regular retirement.  She was awarded a 100-percent service-connected disability rating immediately after retiring for one documented ailment.  Although she tried to pursue a medical retirement the powers that be worked against her and her best interests were neglected. 

3.  The applicant provides a self-authored statement and copies of her 
DD Form 214 (Certificate of Release or Discharge from Active Duty), medical records from 1988 to October 2007, and Department of Veterans Affairs (VA) Rating Decision.

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 6 May 1988 for a period of 4 years and training as a military policeman.  While in basic training she was diagnosed with reactive airway disease.  She completed training and remained on active duty through continuous reenlistments.

3.  In 1991 while stationed in Alaska, she was diagnosed as having asthma as her breathing became more difficult in cold weather.  It was noted that she had some childhood asthma but had no problems in her teenage years and had participated in sports without difficulty in high school.  The official diagnosis was:

* reactive airway disease
* bilateral hilar adenopathy – suspicious of sarcoid but cannot rule out other etiologies

4.  She continued to serve in a variety of military police assignments and was promoted to the pay grade of E-6 on 7 June 1996.  She deployed to Kosovo during the period 27 May 2000 – 9 December 2000.

5.  On 27 June 2005 while stationed at Fort Benning, Georgia, she was issued a temporary physical profile for asthma exacerbation.

6.  On 8 June 2006, the applicant was seen at Dwight D. Eisenhower Army Medical Center, Fort Gordon, Georgia, for a diagnosis of asthma, moderate, persistent.  The examining physician opined that she had a long history of asthma and was due to deploy in the near future.  He opined that she could not pass the run portion of the Army Physical Fitness Test and required evaluation by a medical evaluation board (MEB).  He declared the applicant as being non-deployable and advised her to return to Fort Benning to speak with the allergy clinic about initiating an MEB.

7.  On 14 July 2006, the applicant was seen at the allergy clinic and informed her treating physician that she had decided to pursue anti-lgE therapy for her asthma.  The treating physician opined that she was a candidate for the therapy and discussed the risks and benefits of the treatment with the applicant.  The treatment required the applicant to receive treatments every 4 weeks.

8.  On 27 July 2006, she was issued a temporary physical profile for a 3-month period.  The physician also advised the applicant that an MEB was still under question and she was still non-deployable due to her profile.  The profile also explained that she was being started on a therapy for her asthma which may significantly improve her breathing, and per Army Regulation 40-501(Standards of Medical Fitness), paragraph 3-27(1)(d), she is being issued this first of four 
3-month physical profiles to allow for a 12-month trial of this new therapy.

9.  On 31 May 2008, the applicant was honorably retired by reason of length of service and was transferred to the Retired List in pay grade E-6 effective 1 June 2008.  She completed 20 years and 25 days of active service.

10.  On 24 July 2008, the applicant was awarded a 100-percent service-connected disability rating for asthma, reactive airway disease, and pulmonary sarcoidosis effective 1 June 2008.

11.  The available records do not contain and the applicant has not provided copies of her final separation physical or medical records dated beyond October 2007.

12.  A review of her noncommissioned officer evaluation reports (NCOER'S) shows that she received essentially maximum (Success or higher) ratings on her evaluations up until the time of her retirement.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.  It states medical treatment facility (MTF) commanders who are treating Soldiers may initiate action to evaluate the Soldier's physical ability to perform the duties of his/her office, grade, rank, or rating.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.

15.  Army Regulation 635-40 states that 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.

16.  Army Regulation 635-40 states MEBs 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 qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

17.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a VA rating does not establish error or injustice on the part of the Army.  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 affects the individual's employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and appear to lack merit.  While the applicant was treated for asthma-related conditions throughout her entire career, she has failed to show through the evidence of record and the evidence submitted with her application that her condition was rated as unfitting at the time of her retirement.

2.  The evidence submitted in her case shows she began a 1-year program of therapy that was supposed to help her condition; however, she has not submitted any medical records related to the last 8 months of her service or the results of the therapy program she was undergoing.

3.  Her records show she continued to perform her duties at a high level and she received maximum evaluations, which translates to a presumption of fitness.

4.  In the absence of evidence to the contrary, it must also be presumed that at the time the applicant underwent her retirement medical/physical examination, the medical personnel properly determined that her medical condition did not warrant consideration under the PDES and/or referral to an MEB/physical evaluation board.  Accordingly, it appears she was properly retired in accordance with the applicable regulations.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request for review under the PDES or medical retirement.



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 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)                                         AR20130002832



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ABCMR Record of Proceedings (cont)                                         AR20130002832



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