BOARD DATE:	  10 July 2014

		DOCKET NUMBER:  AR20130019511 


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 correction of his records to show he was medically retired by reason of physical disability vice being honorably released from active duty on 8 August 1991.

2.  The applicant states he was nondeployable due to his asthma and he should have been discharged because of that condition.  He has evidence from Operations Desert Shield and Desert Storm with medical paperwork.  He also has more evidence from Fort Rucker, AL, showing the military doctor put him on medical hold.  The doctor then said he was nondeployable.

3.  The applicant provides:

* Permanent Orders (PO) 1-1 (unit mobilization)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 8 August 1991
* DD Form 214 for the period ending 23 April 1982
* Patient Evacuation Tag 
* Individual Sick Slip
* DA Form 31 (Request and Authority for Leave)
* Department of Veterans Affairs (VA) Form 10-48 (Clinical Record)
* Standard Form 513 (Medical Record-Consultation Sheet)
* VA Board of Veterans Appeals decision


CONSIDERATION OF EVIDENCE:

1.  Title 10, USC, 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.  Having prior service in the Regular Army from April 1979 to April 1982, the applicant enlisted in the U.S. Army Reserve (USAR) on 16 December 1984.  He held military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist).

3.  Company F, 214th Aviation Battalion, Fort Rucker, AL, PO 1-1, dated 26 December 1990, ordered the unit to active duty for a period of 180 days (unless extended) effective 27 December 1990.  The unit, including the applicant, was instructed to report to Headquarters, Fort Rucker, AL, on 2 January 1991.

4.  An initial medical evaluation conducted on 3 January 1991 noted the applicant complained of a 10-year history of asthma and "complains of periodic wheezing over last several weeks."  The evaluating physician declared the applicant "nondeployable" and recommended reevaluating him in 2 weeks.  He provided a Standard Form 513, dated 4 January 1991, which shows a consult sheet was issued by a doctor in relation to the applicant's asthma (moderate).  The doctor indicated the applicant was nondeployable.

5.  The available records show the applicant was ultimately determined to be deployable and subsequently served in Southwest Asia beginning on 8 February 1991.

6.  He returned to continental United States in April 1991 "because of problems with asthma and bronchitis."  He provided a Patient Evacuation Tag, dated 22 April 1991, which shows he was evacuated from Southwest Asia due to having asthma in Saudi Arabia.  He had had asthma for 12 years.  He was breathing fine at this time.  Attached to this form is a Treatment and Progress Report, dated 21 April 1991, which shows the applicant "stated he self-medicated with Theodin 30 mg one hour ago and now uses Proventil inhalant.  No suspicious distress noted."

7.  He was evaluated at Lyster Army Hospital, Fort Rucker, AL, for his asthmatic condition.  A physical examination conducted on 1 April 1991 concluded the applicant was medically qualified for "redeployment" and issued a physical profile rating of "1-1-1-1-1-1."

8.  He provided an Individual Sick Slip, dated 3 June 1991, from the Medical Holding Company which shows the entries:  "Patient may have convalescent leave until 11 June 1991" and "Patient to return to me" for what appears to be a follow up evaluation and consultation.  He also provided a DA Form 31, dated 3 June 1991, which shows he took ordinary leave from 3 June to 11 June 1991.

9.  In July 1991, an evaluating physician noted the applicant "medically does meet" the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) in spite of his numerous medical complaints.  He noted, however, "poor patient compliance" and that the applicant was a "manipulator [and] malingering."

10.  The applicant was honorably released from active duty on 8 August 1991 in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, by reason of expiration of his term of service.  It is unclear if he returned to his Reserve unit or if and when he was ultimately discharged from the USAR.

11.  On 3 May 1994, the Board of Veterans Appeals awarded him service connection for asthma.  Additionally, documents contained in his VA file indicate he was receiving a combined service-connected disability rating of 80 percent (asthma was independently rated at 60 percent) by 1996.  As of 9 August 1991, his asthma was independently rated at only 10 percent disabling.

12.  His complete service medical records are not available for review with this case.  His available records do not contain:

* a permanent physical profile
* a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS, grade, or that he was unfit
* a medical examination that warranted his entry into the Army Physical Disability Evaluation System (PDES)

13.  Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred into the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by HRC

	c.  The PDES assessment process involves two distinct stages:  The medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

14.  Army Regulation 635-40, paragraph 3-1d, states that although the Soldier’s ability to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (worldwide deployability) will not serve as the sole basis for a finding of unfitness.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Paragraph 3-3a provided that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.  Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating.

16.  Title 10, USC, 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, USC, 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.

17.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  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.

DISCUSSION AND CONCLUSIONS:

1.  Very few of the applicant's medical records are available for review with this case.  The available records show he had a history of asthmatic bronchitis.  However, this condition was never determined to fail retention standards or be found unfitting by medical authorities.

2.  In order to be separated or retired for disability, the Army has a process that begins with entry into the PDES.  Referral to the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  In the applicant's case, there is no evidence to show he had:

* a permanent physical profile
* a diagnosis that asthma failed retention standards
* a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade
* a medical examination that warranted his entry into the PDES

3.  It is unclear what condition the applicant believes rendered him unfit.  The applicant believes since he was mobilized and evacuated from theater at the time, he must have been disabled.  This is a false belief.  Referral into the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.

4.  He also appears to believe since the VA awarded him service-connected disability compensation for asthma, the Army, in effect, should have done the same.  However, the Army and VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA for example may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

5.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA could potentially rate all service-connected conditions.

6.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

7.  There does not appear to be an error or an injustice in her case.  In view of the circumstances in this case, there is insufficient evidence to grant 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.

ABCMR Record of Proceedings (cont)                                         AR20130019511



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ABCMR Record of Proceedings (cont)                                         AR20130019511



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