BOARD DATE:  7 October 2014

		DOCKET NUMBER:  AR20140002265 


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 records be reviewed by a "medical review board" (MRB) and corrected to show he retired due to physical disability. 

2.  The applicant states:

	a.  He had 16 years of active duty service at the time of his discharge and 
for the last 4 years he suffered from an undiagnosed seizure condition.  He was on a medical profile and was never cleared by medical personnel.  If his paperwork had been sent for a medical review he would have been extended in the Army past his retirement date. 

	b.  This is unjust because before he began having seizures he was always rated among the best on his evaluation reports.  He was not able to deploy because of his condition and became a liability to this unit.  In the 1990's it was taking up to 36 months for medical review cases.  Anyone over 18 years at the time their case came up were allowed to just retire.  He believes that is why his unit did not pursue the medical review route.  

	c.  His records should have been sent for a medical review for possible reclassification or retirement due to medical reasons.  Instead, his unit told him "You are coming up on your reenlistment which will take you to retirement, the brigade intends to allow you to reenlist and will move you to the Installation Coordination Office where you serve your remaining time in the service."  Of course, three weeks prior to his separation date instead of being called in to reenlist, he was called in and handed separation orders and told to begin out-processing.

	d.  His seizure disorder was not addressed until 2012.  He had a series of sleep studies that showed he suffered from an extreme case of sleep apnea, which triggers his epilepsy episodes.

	e.  His sleep apnea began while he was on active duty and perhaps if his chain of command had not been so aggressively pushing him out the door he could have been properly diagnosed and treated.  This entire process not only cost him his Army career, but also his family (the stress he was going through resulted in divorce).  This process had also caused him to suffer from anxiety, depression, and post-traumatic stress disorder (PTSD).

3.  The applicant provides:

* Army Review Boards Agency letter, dated 10 January 2014
* his DD Form 149 (Application for Correction of Military Record), dated 
23 December 2013
* DA Form 2166-7 (NCO Evaluation Report) (NCOER), for the period May 1995 through January 1996 
* military medical records
* Delta Waves Sleep Disorder and Research Center letter, dated 
10 January 2013
* Progress Notes, January to November 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 August 1984.  He held military occupational specialty 13P (Multiple Launch Rocket System Operations/ Fire Direction Specialist).

2.  He was honorably discharged on 21 August 2000 as a staff sergeant (SSG)/E-6 due to completion of required active service.  He had completed 
16 years of active duty service. 

3.  The applicant provided copies of his service medical records for the period 1986 to 1999 showing he was seen and received treatment on numerous occasions for medical complaints including:

* Myopia
* epileptic seizures


* left shoulder dislocation
* hernia

4.  He provided medical documentation showing:

	a.  He was placed on a temporary physical profile for seizure disorder on 
24 May 1990 for 90 days and on 23 August 1996 for 90 days.

	b.  A Standard Form (SF) 88 (Report of Medical Examination), dated 8 August 1991, shows in item 74 (Summary of Defects and Diagnoses):  "Alive and Well."

	c.  An SF 93 (Report of Medical History), dated 14 April 1999, shows in item 
16 (Have you ever been treated for a mental condition?):  "Yes, for Epilepsy in Landsthul GE 1996-97." 

	d.  A DD Form 2697 (Report of Medical Assessment) showing he had been seen in Landsthul for a seizure disorder and that he intended to seek Department of Veterans Affairs disability for seizure disorder, shoulder, and hernia problems.

	e.  A Delta Waves Sleep Disorder and Research Center letter, dated 
13 January 2013, in which Doctor D----- C---- indicates the applicant has current symptoms of daytime sleepiness, poor concentration, poor memory, heroic snoring, and observed apnea.  His symptoms started when he was on active duty.  Additionally, while in the military he was diagnosed with a seizure disorder,  It is Doctor C----'s opinion that the applicant's sleep apnea more likely than not began while he was on active duty.

	f.  He provides Progress Notes, dated 7 November 2013 showing the diagnosis of: Depressive disorder, Not Otherwise Specified (NOS), and ruling out Major Depression and PTSD.

5.  A review of the documents provided failed to reveal any SFs 88, DA Forms 3349 (Physical Profiles), or any documents from the applicant's chain of command showing the applicant's medical condition was preventing him from performing any of his military duties. 

6.  An NCOER for the period May 1995 through January 1996 shows ratings of "Success" or "Excellence" in all areas and his overall performance was rated "Among the Best."

7.  There is no record he was referred to an medical evaluation board and physical evaluation board.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

9.  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.

10.  Title 38, U.S. Code, sections 310 and 331, 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 physically unfit 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be reviewed by an MRB and corrected to show he retired due to physical disability. 

2.  Although the applicant provided copies of his medical records, there is no available evidence of any medical examinations, limiting physical profiles, or any indication from his chain of command that he was unable to perform his military duties due to a medical condition.  In fact, his last NCOER shows he was performing his duties in an excellent and satisfactory manner.

3.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service 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.  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 he or she can be medically retired or separated.

4.  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)                                         AR20120017854



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ABCMR Record of Proceedings (cont)                                         AR20140002265



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