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ARMY | BCMR | CY2014 | 20140000113
Original file (20140000113.txt) Auto-classification: Denied

	
		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140000113 


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, correction of his records to show that he was diagnosed with unfitting conditions and placed on the Permanent Disability Retired List (PDRL).

2.  The applicant defers to his counsel.

3.  The applicant provides a compact disk that contains copies of 97 pages of documents that include his DD Form 214 (Certificate of Release or Discharge from Active Duty), military medical treatment records, and a Department of Veterans Affairs (VA) Form 21-2507(311) (Request for Physical Examination).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's records to show that he was diagnosed with unfitting conditions and placed on the PDRL.

2.  Counsel states the applicant should have undergone a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) and been placed on the PDRL with a disability rating of at least 30 percent.  In addition, his disability should be deemed combat-related because his back condition was incurred in training for combat.

   a.  Counsel provides a chronology of the applicant's military service, along with the dates he received medical attention for various medical reasons and conditions, including his entry and separation physical examinations, and treatment for urticaria (hives; a skin rash and autoimmune disease) with symptoms of severe itching; tightness in chest and difficulty breathing; head trauma; low blood pressure; diplopia (double vision due to an injury while playing basketball); and head injury (resulting from a falling pole while standing guard duty during a field training exercise (FTX)).  He adds that the head injury resulted in the applicant's hospitalization for 2 days for a skull contusion, back and neck pain, and a temporary profile for lower back pain that expired on 18 December 1989, after the date of his separation.

   b.  He states the applicant's symptoms for urticaria were first treated on 
24 March 1985.  The condition persisted and was continuously treated throughout his military service.

   c.  The applicant's right eye injury occurred in March 1988 while playing basketball and another player accidentally poked him in the eye.  The applicant sought medical treatment and it was noted that he had developed diplopia.  This condition also persisted for the remainder of his military service and got worse over time with additional injuries; specifically, on 2 June 1989 when the applicant was assaulted by another Soldier and sustained repeated punches to the head.  An ophthalmologist noted his vertical diplopia at separation.

   d.  On 24 April 1989, the applicant sustained a head injury during an FTX when he was standing guard duty in full combat gear and a range flag pole fell on his head and shoulder.  He was diagnosed with a skull contusion, back pain, and neck pain.  He continued to receive follow-up medical treatment for his back pain and diplopia while the back pain worsened and his double vision remained almost constant.

   e.  On 5 July 1989, the applicant was issued a temporary profile for his back (L3).  The profile was extended on 18 September 1989 and then renewed, on
18 October 1989, with an expiration date of 18 December 1989.  The applicant separated from the Army on 6 December 1989.

   f.  Counsel states that Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), paragraph 3-3 (Disposition), states Soldiers whose conditions are listed in the chapter will be evaluated by an MEB and referred to a PEB.  In addition, there is a "catch-all" phrase in paragraph 3-41c, "general and miscellaneous conditions and defects" that are cause for referral to a PEB that includes "Conditions and defects (individually or in combination), if the conditions result in interference with satisfactory performance of duty as substantiated by the individual's commander or supervisor; the individual's health or well-being would be compromised if he or she were to remain in the military service; or in view of the Soldier's condition, his or her retention in military service would prejudice the best interests of the Government (for example, a carrier of communicable disease who poses a health threat to others).  Subject to limitations given in paragraph 3-3b of this regulation, questionable cases, including those involving latent impairment and/or those when no single impairments may be considered to render the individual unfit, will be referred to PEBs."

   g.  "Furthermore, a Soldier is presumed to be in 'sound condition' upon entry into service except for those conditions noted on entry medical records.  A Soldier who is accepted for and enters the military service is presumed to be in sound physical condition except for those conditions and abnormalities recorded in his or her procurement medical records.  This presumption may be overcome by conclusive evidence (counsel's emphasis) that an impairment was incurred while the individual wasn't entitled to receive pay basic pay.  Likewise, the presumption that an increase in severity of such an impairment is the result of service must be overcome by conclusive evidence.  Statements of the accepted medical principles used to overcome these presumptions will be made.  The statements must clearly state why the impairment could not reasonably have had its inception while the Soldier was entitled to receive basic pay, or that an increase in severity represents normal progression."

   h.  Counsel also outlines the applicant's specific medical conditions, along with the standards for failing retention under the VA Schedule for Rating Disabilities (VASRD) and Army Regulation 40-501 for urticaria, back, diplopia, and combined disabilities.  He also provides the definition for a finding of combat related from Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

   i.  Counsel concludes that it is an injustice the applicant was not processed through the Army Physical Disability Evaluation System (PDES) and ultimately placed on the PDRL.

3.  Counsel provides no additional documentary evidence.

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 (RA) on 7 January 1985 for a period of 4 years.  He was awarded military occupational specialty (MOS) 51R (Interior Electrician).  He served at Fort Stewart, GA, from 14 May 1985 through 18 October 1986 and he was then assigned overseas to Germany.  He attained the rank of sergeant (SGT)/pay grade E-5 on 6 January 1988.

3.  On 3 October 1989, the applicant completed a Standard Form (SF) 93 (Report of Medical History) as part of his separation physical examination.  It shows the applicant's and examining physician's entries, in pertinent part, as follows:

Applicant								Physician

frequent or severe headaches		pain scale of 2 due to double vision
eye trouble							evaluation by Ophthalmology in progress
head injury							hit by pole in April 1989, no residuals
recent gain or loss of weight		160 - 155
recurrent back pain	pain scale of 2 due to strain, injury in April  1989, difficult range of motion
frequent trouble sleeping			decreased sleeping past 5 months
depression or excessive worry		increased stress attributed to work
nervous trouble						some evidence of tremors

4.  On 3 October 1989, the examining physician prepared an SF 88 (Report of Medical Examination) to document the applicant's separation physical examination.

   a.  It shows the examining physician's entries, in pertinent part, as follows:

* back injury, April 1989, resulting in back pain – T3 profile at present
* back pain being treated by Orthopeadics
* Diplopia follow-up by Ophthalmology
* Otherwise OK
   
   b.  An SF 600 (Chronological Record of Medical Care), dated 26 October 1989, shows the examining physician documented his review of the applicant's follow-up treatments by noting, "Part II, Page 2 - Done, See SF 88" and the physician's signature.

   c.  The examining physician found the applicant qualified for retention.

5.  Headquarters, 261st Personnel Service Company (Germany), Orders 181-27, dated 24 August 1989, and U.S. Army Transition Point, Fort Jackson, SC, 
1st Endorsement, dated 5 December 1989, relieved the applicant from active duty on 5 December 1989, not by reason of physical disability, and assigned him  to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

6.  A DD Form 214 shows the applicant entered active duty this period on
7 January 1985, was honorably released from active duty on 5 December 1989 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 4, based on completion of required active service, and transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.  It also shows:

   a.  he had completed 4 years, 10 months, and 29 days of net active service this period that included 3 years and 13 days of foreign service, and

   b.  his extension of service was at the request and for the convenience of the government.
   
7.  USAR Personnel Center, St. Louis, MO, Orders D-01-302244, dated
12 January 1993, honorably discharged the applicant from the USAR (Ready Reserve), effective 12 January 1993.

8.  In support of his application the applicant provides the following documents:

   a.  Copies of his medical records that show, in pertinent part:

* SF 88, dated 27 November 1984, that documents his entrance physical examination during which the examining physician found the applicant qualified for enlistment
* SF 519-B (Radiologic Consultation Request/Report) for trauma to the applicant's thoracic spine, completed on 25 May 1989, with the note, "No significant radiographic abnormalities demonstrated."
* SF 519-B for trauma to the applicant's thoracic spine, completed on 
3 October 1989, with the note, "No significant radiographic abnormalities demonstrated."
* DD Form 2215 (Reference Audiogram), dated 3 October 1989, that shows the results of the applicant's Audiogram and the entry "Hearing Loss Profile is H1."
* SF 513 (Consultation Sheet), dated 19 October 1989, that shows the applicant was seen by an Ophthalmologist at Ophthalmology Service, 5th General Hospital (Germany), for Diplopia of right eye.  He indicated "very mild left superior oblique palsy [weakness of the fourth cranial nerve which innervates the superior oblique muscle and may cause double vision]; plan - observation and follow-up in 6 months.
   
   b.  VA Form 21-2507(311) (Request for Physical Examination), dated
27 September 2012, that shows the applicant requested an examination for service-connection for Traumatic Brain Injury.

9.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

   a.  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 in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

   b.  Chapter 3 (Policies) provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

10.  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.  However, an award of a VA rating does not establish error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further 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.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different disability ratings based on the same impairments.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the applicant's military records should be corrected to show he was diagnosed with unfitting conditions that were incurred during military service and are combat-related, and that he was placed on the PDRL with a disability rating of at least 30-percent.

2.  There is no evidence of record to show that the applicant's medical conditions (individually or in combination) were medically unfitting for retention under the provisions of Army Regulation 40-501.  There is also no evidence that shows he was unable to perform his duties, or that an acute grave illness or injury or other deterioration of physical condition occurred immediately prior to or coincident with his separation that rendered him unfit.  In fact, the evidence of record shows the applicant underwent a separation physical examination that included a complete review of his medical history and conditions (emphasis added).  Moreover, the examining physician requested consultations and follow-up examinations pertaining to the applicant's spine (chronic back pain) and diplopia.  Upon receipt of the follow-up reports, the examining physician reviewed those results and determined the applicant was qualified for retention and, therefore, qualified for separation.  Thus, there is no evidence of record that shows the applicant's conditions were unfitting at the time of his separation from active duty.

3.  Records show the applicant was released from active duty on 5 December 1989, not by reason of physical disability (emphasis added), and transferred to the USAR.  The evidence of record shows that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties.  The evidence of record fails to support a conclusion that he was unable to perform his duties.





4.  Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition(s) can only be rated to the extent that the condition(s) limit(s) the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning.

5.  Therefore, 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 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)                                         AR20140000113



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ABCMR Record of Proceedings (cont)                                         AR20140000113



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