IN THE CASE OF:	  

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130018568 


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 his case be considered by a Medical Evaluation Board (MEB).

2.  The applicant states:

	a.  he was discharged out of the Army on 15 September 2012.

	b.  upon his discharge he was told that he was fit for duty and able to deploy.

	c.  once he was discharged he was sent a copy of his medical findings and he was rated 80% through the Department of Veterans Affairs (VA) for service connected disabilities.

	d.  he feels the military should have taken steps to have him evaluated by an MEB with a possible medical discharge. 

3.  The applicant provides:

* Service medical records
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA documentation
* Discharge orders



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 June 1998 and trained as a health care specialist.  He served in Bosnia from 25 August 1999 to 18 March 2000 and Egypt from 7 July 2001 to 18 January 2002.
  
2.  He provides a DA Form 3349 (Physical Profile), dated 17 December 2002, thsat shows he was issued a temporary 3 profile for chronic plantar fasciitis, left foot.

3.  He served in Iraq from 4 March 2005 to 14 February 2006 and from 
25 October 2007 to 8 January 2009.

4.  He also provides a DA Form 3349, dated 23 October 2009, that shows he was issued a permanent 2 profile for chest pain after a right pectoral muscle tear.

5.  He served in Kuwait from 10 December 2010 to 9 February 2011.

6.  His DA Form 2166-8 (Noncommissioned Officer Evaluation Report(NCOER) for the period 30 October 2010 through 9 October 2011 shows he was rated fully capable for overall performance and potential by his senior rater.  It is noted he was rated "Needs Improvement (Some)" for physical fitness and military bearing because he failed to meet body fat standards and failed to maintain standards outlined for the Army weight control program.

7.  His Enlisted Record Brief, dated 27 March 2012, shows his physical profile was 121111.

8.  On 15 September 2012, he was honorably discharged for completion of required active service.

9.  He provides medical records that show he was treated for:

* foot pain in 1999
* left heel pain in 2002
* cluster headaches 2006, 2007, and 2010
* depression in 2008 and 2010
* chest pain in 2010
* sleep problems in 2010


10.  He also provides VA documentation that shows he was granted service connection for:

* objective sleep apnea (50 percent (%))
* depressive disorder not otherwise specified, and generalized anxiety disorder (50%)
* sequelae, right pectoralis major muscle rupture (10%)
* low back strain (10%)
* bilateral pes planus with plantar fasciitis (0%)
* sinusitis (0%)
* allergic rhinitis (0%)
* hypertension (0%)
* erectile dysfunction (0%)
* pseudofolliculitis barbae (0%)
* cluster headaches (0%)

11.  His overall or combined rating is 80%.

12.  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 office, rank, grade or rating because of disability incurred while entitled to basic pay.

13.  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 office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

14.  Army Regulation 635-40 states 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 physical disability incurred or aggravated in service.  It 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 and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

15.  Title 38, U.S. Code, sections 310 and 331, permits 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.

16.  Army Regulation 40-501 (Standards of Medical fitness), chapter 7 (Physical Profiling) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification 
action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):

* P - physical capacity or stamina
* U - upper extremities
* L - lower extremities
* H - hearing and ears
* E – eyes
* S - psychiatric

17.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  A physical profile of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect which may require some activity limitations.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and request for an MEB were carefully considered.  However, it appears he had a physical profile of 121111 in March 2012.  There is no available evidence to show he was ever given anything less restrictive than a permanent 2 profile.

2.  The VA granted him an overall/combined disability rating of 80 percent.  However, an award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different laws and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

3.  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 and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  The available evidence shows the applicant was fully capable of performing his military duties.

4.  In view of the foregoing, there is no 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 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)                                         AR20130018568





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ABCMR Record of Proceedings (cont)                                         AR20130018568



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