IN THE CASE OF:	  

		BOARD DATE:	   23 April 2014

		DOCKET NUMBER:  AR20130011335 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was retired by reason of disability vice honorably discharged.

2.  Counsel states:

	a.  The applicant was honorably discharged from the Regular Army on 25 August 2010 by reason of a condition, not a disability.  His discharge was erroneous because:

* he was unfit to perform the duties of his office, grade, rank, or rating at the time of his discharge due to a physical disability incurred while entitled to basic pay
* his disability was of a permanent nature and stable
* his disability was not the result of his intentional misconduct or willful neglect and not incurred during a period of unauthorized absence
* his disability was rated at least 30 percent under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD)
* the disability was not noted at the time of his entrance on active duty
* he was a member of the Regular Army entitled to basic pay

	b.  The applicant enlisted in the Army (U.S. Army Reserve (USAR) Delayed Entry Program (DEP)) on 9 April 2009 for an enlistment bonus and training in military occupational specialty (MOS) 35N (Signals Intelligence Analyst) at the age of 22.  In September 2009, he began basic combat training (BCT) at Fort Leonard Wood, MO, where he excelled in the Army Physical Fitness Test (APFT).  Although he had one sports-induced asthma attack when he was in grammar school, he never had any other asthma attacks after that.  His childhood physician stated he would outgrow asthma, which he did.  He participated in soccer and baseball while in grammar school and in cross country running while in high school.

	c.  During the applicant's second week of BCT, he participated in a mandatory tear gas training exercise.  Several days later he experienced trouble breathing, went to sick call, was initially diagnosed with asthma, and was prescribed three puffs of albuterol per day.  His symptoms worsened and he went to the General Leonard Wood Army Community Hospital (GLWACH) emergency room (ER), Fort Leonard Wood, complaining of chest heaviness/pain, trouble breathing/shortness of breath, vertigo, wheezing, and other symptoms on 20 September 2009.  On 21 September 2009, he was admitted to the GLWACH and diagnosed with pneumonia.  His pneumonia was bacterial (staphylococcus aureus), the same strain that also infected several other Soldiers in his BCT squad.  He was treated with antibiotics for 1 week and returned to his unit to continue training.

	d.  He was permitted to continue in BCT as long as he could physically keep up.  He made up the training he had missed and he successfully completed BCT on 3 November 2009, including passing an APFT and completing a 15-kilometer march in full combat gear weighing almost 100 pounds.  Because of his education and computer training prior to his enlistment, he graduated from BCT in the rank/grade of private first class (PFC)/E-3.  He was subsequently assigned to Goodfellow Air Force Base (GAFB), San Angelo, TX, for advanced individual training (AIT).

	e.  The applicant was one of the best in his unit for physical fitness in AIT.  On 9 December 2009, he scored 240 points on the APFT and scored 90 points on the two-mile run.  On 19 January 2010, he scored 245 points on the APFT and scored 91 points on the 2-mile run.  On 2 February 2010, he scored 255 points on the APFT and scored 100 points on the 2-mile run.  That was the last time he was able to complete the APFT.

	f.  On 25 February 2010, the applicant went to the ER, San Angelo Community Medical Center (SACMC), San Angelo, TX, complaining of shortness of breath.  He was diagnosed with asthma and prescribed two inhalations of Advair (fluticasone/salmeterol) per day.  On 26 March 2010, he felt a sharp pain in his chest while preparing for physical training and went back to the SACMC ER, complaining of shortness of breath and pain in the right side of his chest.  After a chest x-ray, he was diagnosed with a 5-percent right pneumothorax, also known as a collapsed lung, "the collection of air in the space around the lungs" which "puts pressure on the lung, so it cannot expand as much as it normally does when you take a breath."

	g.  On 29 March 2010, he saw a cardiothoracic surgeon and was diagnosed with an 80-percent right pneumothorax and was admitted to the SACMC.  A chest tube was inserted and his lung was successfully re-inflated.  However, the air leak that caused the pneumothorax persisted and he underwent surgery on 1 April 2010 to repair the leak.  On 5 April 2010, he was discharged from the SACMC and returned to his AIT unit and assigned light duty.

	h.  Complications from his surgery left him unable to do sit-ups and/or lift heavy objects, in severe pain, and unable to do any physical activity for more than a short period of time.  Although his surgeon told him the post-surgical symptoms would dissipate within 2 years, this was not the case.  Instead, the symptoms never abated and today, more than 3 years after the surgery, he continues to experience the same symptoms.

	i.  While he was serving on active duty, his health care providers failed to appreciate the permanent nature of his physical disability.  From 26 March to 22 July 2010, he was issued 13 DA Forms 3349 (Physical Profile).  Each physical profile stated the only activities he was able to do were walking and bicycling at his own pace and speed.  Each physical profile characterized his disability as temporary, even though each profile persisted throughout his active service and continues to persist today.  In truth, his condition was permanent and stable.

	j.  The applicant was honorably discharged from active duty on 25 August 2010 pursuant to Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, based on "other designated physical or mental conditions not amounting to disability," adjustment disorder.  Since the action to separate him began before his pneumothorax diagnosis, his discharge paperwork did not mention the condition.

	k.  On 21 January 2011, the VA rated the applicant as 10-percent disabled for service-connected hyperalgesia, "an exaggerated sense of pain," right side, residual of the resolved pneumothorax, effective 26 August 2010, the day after he was honorably discharged.  This rating was based on two painful scars as a result of his treatment for his pneumothorax.  However, since then the VA has twice upgraded his disability rating.  Importantly, those upgrades did not reflect any post-discharge changes in his physical condition; rather, the VA correctly recognized it had not fully appreciated the extent of his disability at the time of his discharge.

	l.  On 8 March 2012, the VA rated the applicant as 10-percent disabled for service-connected adjustment disorder with depressed mood effective 26 August 2010.  The VA also diagnosed him with Asperger disorder which was not determined to be service connected.  On 7 June 2012, the VA rated him as 
30-percent disabled for service-connected intercostal nerve damage with reduced right rectus abdominus muscle contraction and residual right lateral dermal hyperalgesia, residual of resolved pneumothorax (resulting in loss of power, weakness, lowered threshold of fatigue, fatigue-pain, guarding of movement, and inability to keep up with normal work requirements), and as 
20-percent disabled for service-connected painful scars, for a combined rating of 50 percent effective 26 August 2010.

	m.  The Army Board for Correction of Military Records (ABCMR) may change military records to correct an error.  In this case, the applicant should have been retired for physical disability because he incurred a moderately-severe physical disability during and as a result of his military service.  He has been deprived of retirement benefits because the Army failed to appreciate the severity and permanence of his physical disability (see "Beckham versus United States, 1968," awarding retirement benefits where "the fact that plaintiff chose to separate voluntarily does not lessen the Government's obligation to pay disability retirement if plaintiff actually had an incapacitating disease at the time of separation").  The applicant's discharge was erroneous because at the time of his discharge he satisfied all of the criteria of retirement for physical disability.

	n.  The VA rating of the applicant's disability demonstrated his unfitness at the time of his discharge (see "Ferrell versus United States, 1991," "The 40 percent VA disability rating for chronic pain is therefore strong evidence of unfitness").  The VA rendered a combined rating of 50-percent service-connected disability effective 26 August 2010.  At the time of his discharge, he could not perform his required duties and had a physical profile – or physical capacity or stamina – of 222221.

	o.  His physical profiles, dated from 26 March to 22 July 2010, reported the only activities he was able to perform were walking and bicycling at his own pace, and he could not do any physical activity for more than a short time.  His physical disabilities continued to limit him from the date of his last physical profile through his discharge date and up to the present.  Although his physical profiles characterized his disability as temporary, his disabilities were of a permanent nature and stable.

	p.  The VA rated him as 30-percent disabled for his nerve and muscle damage and 20-percent disabled for his scars.  While the VA's rating is not binding on the ABCMR, the VA rating is significant because he was found to be at least 30-percent disabled as of 26 August 2010, i.e., at the time of his discharge (see "Smith versus United States, 1964," "the medical views of the VA are entitled to great weight," and "Daley versus United States, 1967," "[w]hile not binding on the Army in a disability retirement proceeding, the action of the VA is entitled to some consideration and weight in determining whether a discharged officer is 30 percent or more disabled…").

	q.  Since the applicant's disability satisfies multiple subparts of Title 10, U.S. Code, which are merely disjunctive, any one of them is sufficient to establish his eligibility for physical disability retirement.  In view of the foregoing, the applicant requests the ABCMR correct his records to show he was retired by reason of disability vice honorably discharged.

3.  Counsel provides the following documents on behalf of the applicant:

* DD Form 214
* applicant's statement, dated 7 May 2013
* DD Form 1966 (Record of Military Processing – Armed Forces of the United States)
* U.S. Army Recruiting Command (USAREC) Form 1245 (USAREC Pre-BCT Physical Fitness Assessment Scorecard)
* USAREC Form 1137 (The USAREC Future Soldier Pre-Execution Checklist)
* three DA Forms 705 (APFT Scorecard), dated 20 August 2009 to 2 February 2010
* 37 pages of various medical documents, dated from 20 September 2009 to 19 July 2010, and listed as exhibits in Counsel's request
* Report of Mental Status Evaluation, dated 4 March 2010
* DA Form 4856 (Developmental Counseling Form), dated 12 March 2009
* 13 DA Forms 3349 (Physical Profile), dated from 26 March to 22 July 2010
* DD Form 2807-1 (Report of Medical History), dated 27 April 2010
* DD Form 2808 (Report of Medical Examination), dated 27 April 2010
* five memoranda, one dated 16 August 2010 and four undated
* three VA Rating Decisions, dated 21 January 2011, 8 March 2012, and 7 June 2012
* four VA letters, two undated, one dated 8 June 2012, and one dated 23 July 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR DEP on 9 April 2009.  He was discharged from the DEP on 24 August 2009 for immediate enlistment in the Regular Army.  He enlisted in the Regular Army on 25 August 2009 in the rank of PFC for a period of 3 years and 40 weeks.  He was assigned to the 2nd Battalion, 10th BCT Brigade, Fort Leonard Wood, MO, for BCT.

2.  On 20 September 2009, the applicant reported to the GLWACH ER with a complaint of 2 days of shortness of breath and worsening cough with a fever and chills.  He stated the symptoms started 3 to 4 weeks prior with nasal/sinus congestion, rhinorrhea, and a non-productive cough.  He attributed his symptoms to allergies and stated they worsened after he completed gas chamber training.  He also noted left side abdominal wall pain with change in position or palpation.  He denied any trauma to his side.  His past medical history included allergic rhinitis with associated reactive airway disease.  He was diagnosed with bilateral pneumonia as confirmed by a chest x-ray and he was admitted to the GLWACH.

3.  He was treated with antibiotics and he was discharged from the GLWACH on 28 September 2009.  He was prescribed Claritin (loratadine), Flonase (fluticasone propionate), and albuterol, and released to his unit with a recommendation of light duty for 1 week.

4.  He successfully completed BCT and he was assigned to the 344th Military Intelligence Battalion, GAFB, TX, for AIT in MOS 35N in November 2009.

5.  On 25 February 2010, the applicant reported to the SACMC ER by ambulance with a complaint of shortness of breath of mild severity that occurred after he climbed three flights of stairs and ran 3 miles.  He denied having any pain.

6.  In the medical document Counsel provided, dated 25 February 2010, the treating medical personnel noted the applicant had a history of asthma/chronic obstructive lung disease and the history was obtained from the applicant.  It also noted his symptoms were negative for chest pain, chills, fever, congestion, sinus pain/pressure, and wheezing and there was no evidence of trauma.  The examining physician's clinical impression was asthma, acute exacerbation.  He was released and told to obtain follow-up care with the GAFB Troop Medical Clinic.

7.  On 4 March 2010, he underwent a mental status evaluation at the GAFB Mental Health Clinic at the request of his commander.  The examining psychologist stated the applicant's behavior was normal, he was fully alert/oriented, his thinking process was clear, his thought content was normal, and he had the medical capacity to understand and participate in the proceedings.  The examining psychologist diagnosed him with an adjustment disorder with disturbance of emotions and psychiatrically cleared him for any administrative action deemed appropriate by his command.

8.  On 12 March 2010, he was counseled by his platoon sergeant that his immediate commander was initiating separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions not amounting to a disability that interfered with the performance of his assigned duties.

9.  On 26 March 2010, the applicant reported to the SACMC ER by car with a complaint of pain of moderate intensity in his neck, chest, and abdomen that started 2 hours prior.  His symptoms were negative for fever, nausea, and vomiting; he was not in respiratory distress and his lungs were clear with equal breath sounds bilaterally.  He had moderate right-sided chest wall tenderness with normal range of motion and no swelling or deformities.  The examining physician's clinical impression was pneumothorax (the presence of air or gas in the pleural cavity surrounding the lungs causing pain and difficulty breathing).  He was released with a physical profile for no physical training or exertion until released by a physician.

10.  On 29 March 2010, he was seen at SACMC for a follow-up appointment.  The treating physician stated the applicant had a history of prior asthma and claimed he had shortness of breath over the weekend; however, he denied any shortness of breath at that time.  A repeat chest x-ray revealed a right-sided 
80-percent pneumothorax.  He was admitted for insertion of a chest tube and treatment of his spontaneous pneumothorax.  His lung was successfully re-inflated; however, an air leak persisted and he underwent a right thoracoscopy for resection of bleb of the right lower lobe on 1 April 2010.  He tolerated the procedure well and he was discharged on 5 April 2010.

11.  On 27 April 2010, he underwent a medical examination for separation processing.  The examining physician stated the applicant had surgical lesions visible on the right side of his chest with no signs of infection.  He was post-surgical treatment for spontaneous pneumothorax and had no further follow-up appointments scheduled with his thoracic surgeon.  He was slowly progressing with his activity level and had asthma for which he took daily medication and used an inhaler.  It noted that he was healing well and was qualified for service.
12.  He returned to the SACMC on seven occasions between 24 May and 24 June 2010 for complaints of right-sided chest pain and/or to have his physical profile extended.  He was found to have no fever or chills, a slight decrease in breath sounds on his right side, no wheezing, he was not in acute distress, and his heart rate and rhythm were normal.  He was instructed to return if his symptoms worsened or new symptoms appeared and he was referred for pain management treatment.

13.  On 19 July 2010, he was seen at the Pain Management Clinic, Brooke Army Medical Center (BAMC), Lakeland AFB, TX, for his complaint of persistent right-wall chest pain.  The examining physician noted he had no fever or chills, his lungs were clear, no decrease in breath sounds was heard, no wheezing was heard, no rhonchi were heard, he was not in acute distress, and his heart rate and rhythm were normal.  He appeared to have mild scar pain with surrounding hyperesthesia, myofascial intercostals pain exacerbated by stretch/tension, and mild rib dysfunction.  His complaint of chronic pain and treatment options were discussed and the treating physician stated he anticipated he would heal within the next 3 months with a structured progression of chest wall stretching and symptom control.

14.  Counsel provided the following DA Forms 3349 which show the applicant received physical profiles on the following dates for the following reasons:

* 26 March 2010, a temporary "2" rating for upper extremities for no physical training or activities causing exertion to expire on 1 April 2010
* 29 March 2010, a temporary "2" rating for physical capacity for walking at his own pace and distance to expire on 12 April 2012
* 7 April 2010, a temporary "2" rating for physical capacity and lower extremities for walking at his own pace/distance to expire on 12 April 2012
* 12 April 2010, a temporary "2" rating for physical capacity and upper extremities for stretching as tolerated to expire on 3 May 2010
* 3 May 2010, a temporary "2" rating for physical capacity and upper extremities for stretching as tolerated to expire on 12 May 2010
* 1 June 2010, a temporary "2" rating for physical capacity and upper extremities for stretching as tolerated to expire on 8 June 2010
* 8 June  2010, a temporary "2" rating for physical capacity for walking at his own pace and distance to expire on 16 June 2010
* 11 June  2010, a temporary "2" rating for physical capacity and upper extremities for walking at his own pace/distance to expire on 22 June 2010
* 21 June  2010, a temporary "2" rating for physical capacity for walking at his own pace/distance to expire on 5 July 2010
* 7 July 2010, a temporary "2" rating for physical for walking at his own pace/distance capacity to expire on 15 July 2010
* 14 July 2010, a temporary "2" rating for physical capacity for walking at his own pace/distance to expire on 21 July 2010
* 22 July 2010, a temporary "2" rating for physical capacity for walking at his own pace/distance to expire on 22 August 2010

15.  The applicant's physical profile rating was "211111" as of 22 July 2010, the date his last temporary physical profile was issued.

16.  On or about 3 August 2010, the applicant was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions.  The commander stated he was initiating the action because the applicant had been diagnosed with an adjustment disorder with disturbance of emotions which was of such severity that he was unable to adequately perform his military duties and he was recommending characterization of his service as honorable.  The commander advised him of the possible effects of the discharge, its effect on further enlistment or reenlistment, and the procedures and rights available to him.

17.  On 3 August 2010, the applicant acknowledged receipt of the notification of the separation action and that he was advised of the procedures and rights available to him.  There is no evidence that he submitted a statement on his own behalf.

18.  His senior commander subsequently recommended approval of the separation action.

19.  On 16 August 2010, the separation authority approved the applicant's discharge action and directed the issuance of an Honorable Discharge Certificate.  On 25 August 2010, he was discharged accordingly.

20.  His DD Form 214 confirms he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, for a condition, not a disability.  He completed 1 year and 1 day of creditable active service.

21.  His available records are void of any evidence showing he was ever diagnosed with any injury/medical condition while serving on active duty that resulted in a medical condition that permanently prevented him from performing his duties and would require referral to a medical evaluation board (MEB).

22.  There is no evidence in the available records showing he ever received a permanent physical profile rating of "3" that would require referral to an MEB.

23.  Counsel additionally provided the following documentation pertaining to the applicant:

	a.  A VA Rating Decision, dated 21 January 2011, wherein he was granted 10-percent service-connected disability for hyperalgesia, right side, residual of resolved pneumothorax, effective 26 August 2010.

	b.  A VA Rating Decision, dated 8 March 2012, wherein he was granted 
10-percent service-connected disability for adjustment disorder with depressed mood effective 26 August 2010.

	c.  A VA letter, dated 8 June 2012, wherein he was granted 30-percent service-connected disability for intercostal nerve damage with reduced right rectus abdominus muscle contraction and residual right lateral dermal hyperalgesia, residual of resolved pneumothorax, and 20-percent service-connected disability for scars, residual chest tube and video-assisted thoracoscopic surgery procedure, effective 26 August 2010.

24.  Counsel cited a 1968 court case, Beckham versus United States, wherein the Court determined the Board for Correction of Navy Records (BCNR) determination the plaintiff was fit was arbitrary, capricious, and not based on substantial evidence and he was entitled to disability retirement.  This case involved a Navy officer with extensive gastrointestinal issues.  

25.  Counsel cited a 1991 court case, Ferrell versus United States, wherein the Court found the Air Force BCMR (AFBCMR) decisions not to grant disability retirement arbitrary and capricious and the VA rating of 40% disability for chronic back pain was strong evidence of unfitness.  In this case the plaintiff had a temporary profile of "4" at the time of his discharge and he was discharged without a separation physical or medical board.  This was contrary to the then current Air Force regulations that required an MEB for a herniated disc.  

26.  The VA granted the plaintiff a 40% disability for a spinal condition 6 months after his discharge.  The Court stated the VA determination was not determinative of the plaintiff's fitness at discharge but was entitled to great weight when based on a medical examination.  

27.  Counsel also cited a 1964, Smith versus United States, and 1967, Daley versus United States, court case for the rule that while the military is not bound 



by the VA determinations, the medical views of the VA are entitled to great weight. 

28.  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.  It states MEB's/physical evaluation boards 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 (Standards of Medical Fitness), chapter 3.

29.  Army Regulation 40-501, paragraph 3-36, of the version in effect at the time, stated an adjustment disorder does not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causes interference with military duty.

30.  The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  The functions of the various organs, systems, and integral parts of the body are considered.  An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness.  A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations.  A profile containing one or more numerical designations of "3" signifies the individual has one or more medical condition that may require significant limitations.  A permanent profile of "3" would require referral to an MEB.

31.  Army Regulation 635-40 further states 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/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

32.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that a Soldier may be separated on the basis of other physical or mental conditions not amounting to disability that interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

33.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  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.

34.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active 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 civilian employability.  The VA 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 VA 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.  The evidence of record confirms the applicant was diagnosed with an adjustment disorder with disturbance of emotions, a condition not amounting to disability that was sufficiently severe enough to impair his ability to effectively perform his military duties.  Therefore, separation action was initiated against him under the provisions of Army Regulation 635-200, paragraph 5-17, and he was correctly honorably discharged for a condition not amounting to disability.

2.  Although he had been treated for pneumothorax and chest pain while serving on active duty and he was issued several temporary physical profiles that limited his physical activities, the available evidence confirms he was only assigned ratings of "2" for his medical issues that temporarily required some physical activity limitations.  The available evidence shows his inability to effectively perform his military duties was based on his adjustment disorder with disturbance of emotions, not a physical disability.

3.  The evidence of record does not show and counsel has not provided sufficient evidence that shows the applicant was diagnosed with or treated for any physical injury/condition while serving on active duty that permanently prevented him from performing his duties and would require referral to an MEB.  There is no evidence in the available records that shows he ever received a permanent profile rating of "3" that would require referral to an MEB.

4.  A disability decision rendered by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining a Soldier's fitness to perform military duties.  The VA may award ratings because of a service-connected disability that was incurred in or aggravated by active military service that affects the individual's civilian employability and can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon subsequent examinations and findings.

5.  Counsel cited a collection of cases, most decided in the 1960s, for the proposition that VA medical evaluations are entitled to a great weight when reviewing ABCMR decisions regarding medical fitness.  Some of the decisions pointed to a lack of a separation physical and violation of service regulations regarding the processing of the plaintiffs' cases.

6.  These cases were not evaluated under the Army regulations current at the time of the applicant's discharge.  He underwent a separation physical and mental health evaluation and he did not have a physical condition that rendered him unfit.  The applicant did not allege, nor is there evidence of a violation of Army regulations.  Except for the first VA decision, the other VA decisions were issued a significant period of time after his discharge.  The issue that voluntary separation does not preclude a later disability retirement that counsel relies on is not necessarily present in the applicant's case.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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.

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ABCMR Record of Proceedings (cont)                                         AR20130011335



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