IN THE CASE OF:	  

		BOARD DATE:	   1 April 2014  

		DOCKET NUMBER:  AR20130012930 


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 reconsideration of her earlier request for correction of her military records to show she retired due to physical disability.

2.  The applicant states her request should be reconsidered for the following reasons:

	a.  She contends that her medical condition had not been properly identified at the time of her discharge.  She fought hard to keep up with the Army's physical training (PT) program.  Her day-to-day duties did not require extreme exertion, but the PT program was an extreme challenge for her.  After completing advanced individual training, she was no longer the best.  She was always the last.

	b.  Her chain of command pushed her harder because they only saw her outward appearance and perceived nothing wrong with her on the inside.  She dealt with this while assigned to the Tripler Army Medical Center where PT was a very small part of the requirements.  She believes that if she had been in a unit that stressed physical fitness and activity, her medical condition would have become apparent.

	c.  She contends she left the Army National Guard (ARNG) and applied for Officer Candidate School (OCS) to get away from the 2-week summer training requirements that caused her extreme turmoil.  She believed OCS would be more of a mental challenge.  She was accepted into OCS but quit during the weekend orientation.  She gave 200 percent of her effort, which was only enough to meet minimum physical standards.  She quit because she could not keep up with the running.  She was told that running was a serious part of OCS.

	d.  She has lived her adult life sitting on the sideline because of a decision as a youngster to serve her country.  Her physical ability is drastically limited.  Her mental capacity is what has brought her this far.  Recently, she was presented with an offer to apply for the Fiscal Year 2014 Defense Executive Leadership Development Program (DELDP).  As exciting as it sounds, and regardless of her more than capable mental capacity, she lacks the physical ability to complete the course.  The DELEP announcement states that it is not for everyone.  It is both mentally and physically challenging.  All applicants must submit a medical release form/letter from a licensed physician.  Still today, she is affected by an injury that occurred on active duty.

3.  The applicant provides copies of a medical evaluation by the Arizona Family Care Associates Lung Center, dated 15 May 2008, with related documents (10 pages).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120017587 on 16 April 2013.

2.  The applicant provided rebuttal comments to the conclusions in the original Record of Proceedings and a copy of her medical evaluation, dated 15 May 2008, that were not previously considered by the Board.  Therefore, her comments and medical evaluation are new evidence and warrant Board consideration.

3.  The original Record of Proceedings stated:

	a.  The applicant enlisted in the Regular Army on 24 November 1982.  She successfully completed training and was awarded military occupational specialty 91B (Medical Specialist).

	b.  The applicant's medical records show several years of laboratory work, medical tests, and medical treatment at Tripler Army Medical Center, HI, for various illnesses.  On 26 August 1985, a chest X-ray indicated "elevation of the right hemidiaphragm (half of the diaphragm) may present an eventration (abnormal elevation) or diahphragmatic paralysis."  Her physical profile showed no limitations.

	c.  There is no evidence in the applicant's military service records showing she was unable able to perform her duties while she was serving on active duty.

	d.  On 22 November 1985, the applicant was honorably released from active duty.  She enlisted in the Ohio ARNG on 16 December 1985.  On 1 November 1988, she was honorably discharged from the Ohio ARNG.  The reason for her discharge was shown as "Incompatible Occupation."

	e.  On 13 December 1987, the applicant was administered a physical examination for OCS.  The results of the examination showed she qualified for OCS with no abnormalities or limitations.

	f.  The applicant's Department of Veterans Affairs (VA) Rating Decision, dated 17 February 2009, shows her evaluation of right hemidiaphragm with associated restrictive lung disease was increased from 10-percent disabling to 100-percent disabling.

	g.  The Board concluded that no members of the applicant's chain of command or any of the physicians who provided her medical treatment believed her condition was such that it precluded performance of duty or was severe enough for referral for disability processing.  The absence of such referral, or even a permanent physical profile, suggests she was able to perform her duties in spite of her medical problems.

	h.  The Board did not find any evidence showing she had a medical condition so severe it forced her out of military service.  After being released from active duty in 1985 she enlisted in the OHARNG.  She was discharged from the OHARNG 3 years later, not because of unfitness but because of an incompatible occupation.  It appears she believed she was medically fit enough to apply for OCS in 1987.

	i.  The Board further stated that her receipt of disability compensation from the VA is not evidence of any error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  A rating action by that agency does not compel the Army to modify its reason or authority for separation.

4.  The medical evaluation provided by the applicant contains her physician's preliminary report wherein he stated that based on the maximal oxygen uptake, the applicant could carry out only light physical activity.  Her exercise limitation was also secondary to peripheral airway obstruction disease; her desaturation (condition of a low blood oxygen concentration) was probably related to hemidiaphragm paralyses.

5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 3, provides 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of grade, rank, or rating.

6.  Title 38, U.S. Code, sections 1110 and 1131, 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.

7.  Title 10, U.S. Code:

	a.  chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay;

	b.  section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling; and

	c.  section 1203, provides for the physical disability separation of a member who has an impairment rated of less than 30-percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should have been retired due to physical disability because her medical condition had not been properly identified.

2.  The applicant provided medical evidence showing she was diagnosed in 2008 with having a physical disability that severely limits her physical activities.  However, there is no convincing evidence showing she had this condition at the time of her separation from the Regular Army or that she had any other medical condition that may have prevented her from performing her military duties.

3.  The evidence of record shows that subsequent to her release from active duty, she joined the ARNG and later applied for and was accepted for enrollment in OCS.  These events would have required her to undergo a medical examination and to pass it before her acceptance, further evidence that she was capable of performing her military duties.

4.  In view of the above, the applicant's request should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120017587, dated 16 April 2013.



      ______________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)                                         AR20130012930



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ABCMR Record of Proceedings (cont)                                         AR20130012930



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