IN THE CASE OF:  

		BOARD DATE:  12 November 2013

		DOCKET NUMBER:  AR20130004377 


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, physical disability retirement rather than severance pay.

2.  The applicant states she was a few days from completing 15 years of service when she was separated.  Her medical conditions warranted more than a
20 percent disability rating.  She was not aware she could be retired due to medical issues.  Soldiers should be made aware of this if they have served more than 10 years and have a medical condition that warrants them having to be released from duties.  She served her unit even though she was sick.  She had no negative reports.  She did the best she could do to the best of her ability.  She was unable to breathe sufficiently most of the time but still continued to be concerned about the welfare of her Soldiers.

3.  The applicant provides:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated
10 June 1996
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Rating Decision, dated 30 October 1997
* VA Rating Decision, dated 12 April 2012
* Service Medical Records


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 28 September 1981.  She held military occupational specialty 91C (Practical Nurse).  She served in Germany and Saudi Arabia and attained the rank of staff sergeant (SSG).

3.  A 10 June 1996 PEB found the applicant physically unfit for continued duty as a Practical Nurse primarily due to difficulty functioning in a field environment due to Asthma.

	a.  The Disability Description states:  "ASTHMA, MOST PROMINENTLY EXERCISE INDUCED WHICH IS MODERATE AND MARGINALLY CONTROLLED WITH REGULAR USE OF MDIS.  (MEBD DIAG 1).  NCO [Noncommissioned officer] is unfit for continued duty as a Practical Nurse primarily due to difficulty functioning in field environments.  Asthma is exercise and cold weather induced.  Once separated from physical demands of active service, frequency of attacks should diminish.  All PFT [Pulmonary function testing] data in medical board reflects normal condition.  0 percent rating is based on her being unfit as a Soldier, albeit by objective medical evidence; her condition is normal to mild at worse.  Profile has minimal restrictions.  NCOERs reflect no adverse performance problem due to condition."

	b.  The PEB assigned a disability rating of 0 percent and recommended the applicant be separated with severance pay, if otherwise qualified.

4.  On 16 August 1996, she was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) by reason of disability with severance pay.  She completed 14 years, 10 months, and 19 days of creditable active service.


5.  The applicant provided a:

	a.  VA Rating Decision letter, dated 30 October 1997, that shows she received a combined disability rating of 20 percent (10 percent for asthma and 10 percent for a tail bone injury).

	b.  VA Rating Decision letter, dated 12 April 2010, that shows her combined service-connected disability rating was 40 percent.

6.  The applicant's medical records reveal a history of Asthma and an injury to her tail bone.

7.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

8.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

9.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It 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.

10. The Temporary Early Retirement Authority (TERA) authorized members with over 15 but less than 20 years of total active duty service to apply for early retirement.

11.  On 8 August 1995, the Army released detailed guidance on the administration of the Fiscal Year 1996 (FY96) Enlisted Early Retirement Program.  The guidance further stated that personnel who would not be medically cleared (i.e., undergoing MEB/PEB evaluation) by the requested early retirement date were not eligible for early retirement.

12.  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.  The VA, however, is not required 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's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence showing the applicant suffered from any conditions other than asthma that affected her performance of duty when she was evaluated by the PEB.

2.  A PEB reviewed the medical evidence and concluded there was sufficient evidence to substantiate that the applicant was unfit for continued duty as a Practical Nurse primarily due to difficulty functioning in field environments.  The PEB assigned a disability rating of 0 percent and recommended the applicant be separated with severance pay, if otherwise qualified.

3.  The Army's guidance on the FY96 TERA was published in August 1995, a year before she was separated.  At the time of her separation she knew, or should have known about the program.  She was not eligible for retirement under the TERA because she had not completed at least 15 years of service and she was undergoing PEB evaluation.  

4.  There is no evidence that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service (i.e., service-connected).  Furthermore, the VA can evaluate a veteran throughout her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

6.  Since there is insufficient evidence to show the applicant had any other medical conditions that were medically unfitting for retention at the time in accordance with Army Regulation 40-501, there is no basis for a medical retirement.
7.  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 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)                                         AR20120015570



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ABCMR Record of Proceedings (cont)                                         AR20130004377



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