IN THE CASE OF:    

		BOARD DATE:  13 January 2015  	  

		DOCKET NUMBER:  AR20140002375 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged.

2.  The applicant states he was discharged for weight control failure under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 18, but he injured his left eye in January 2005.  His commander informed him that he would be separated because his injury rendered him unfit for service.  He went to all of his appointments and out-processed under the assumption that he would be medically discharged.  He thinks some of his paperwork was not forwarded to the separation office or it may have been mixed up with another Soldier with the same last name.  The unit had just returned from deployment in support of Operation Iraqi Freedom and a lot of Soldiers were separating or being reassigned.  The authority and narrative reason for his discharge is causing issues with his veterans' educational benefits.  He is rated as 50-percent service-connected disabled by the Department of Veterans Affairs (VA) due to his injury.  His current DD Form 214 does not reflect this.

3.  The applicant provides:

* medical records related to his eye injury, dated 26 January 2005 through 4 October 2011
* correspondence related to his VA disability rating, dated 26 February 2008 through 14 June 2013
* letter from his former roommate, dated 23 January 2014

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 on 27 August 2003.

3.  A Standard Form 600 (Chronological Record of Medical Care) shows he was seen by the Fort Campbell optometry clinic on 26 January 2005 to re-dress his left eye since the previous Wednesday.  The applicant stated he was struck in the eye by a bungee cord.  He stated he had no vision for the past 3 hours and reduced vision since the previous Wednesday.  He was given ointments and ibuprofen for pain at the emergency room.  He was diagnosed as having macular edema (swelling of the area of the retina responsible for central vision, commonly known as blurry vision) with possible sub-macular hemorrhage.  He was referred to the ophthalmology clinic.

4.  A DA Form 4700 (Medical Record – Supplemental Medical Data) shows he was seen by the Fort Campbell Ophthalmology Clinic on 26 January 2005 for an evaluation of his left eye injury incurred on 19 January 2005.  The applicant stated he had blurry vision.  He was assessed as having traumatic iritis (painful irritation), improved; traumatic cataract, stable; and a choroidal rupture (break in the retina from blunt ocular trauma), no change or difference.  His left eye visual acuity was measured as 20/100.  His right eye visual acuity was not measured.

5.  A DA Form 4700 shows he was seen by the Fort Campbell ophthalmology clinic on 15 February 2005 following a choroidal rupture of his left eye.  The applicant stated he has been having headaches for the past 9 days and trouble sleeping; he gets light-headed easily and has trouble focusing.  He was assessed as having a microhyphema (bleeding in the anterior chamber), now resolved, and a choroidal rupture.  His left eye visual acuity was measured as 20/125.  His right eye visual acuity was not measured.

6.  There is no evidence showing he was assigned a temporary or permanent physical profile limiting his ability to perform his assigned duties due to left eye vision impairment.

7.  His records are void of documentation relating to his placement in the Army Weight Control Program and his separation packet is not available for review.

8.  His DD Form 214 shows he was honorably released from active duty on 11 April 2005 for weight control failure under the provisions of Army Regulation 635-200, chapter 18.  He completed 1 year, 7 months, and 15 days of active service during this period; he did not complete his first full term of service.  He authenticated the DD Form 214 with his signature.

9.  He provided copies of his VA Rating Decisions that show he was awarded 
10-percent service-connected disability for left eye vision impairment effective 12 April 2005.  On 16 July 2008, his disability rating for left eye cataract and retinal detachment (previously evaluated as left eye vision impairment) was increased to 20 percent when the VA determined his service-connected condition worsened.  On 8 September 2011, his disability rating for left eye cataract and retinal detachment and right eye strain was increased to 30 percent when the VA determined his service-connected condition worsened.

10.  He provided a letter from his former roommate who stated he assisted the applicant immediately after his injury and performed first aid, then took him to the emergency room.  He also assisted the applicant after his return from the emergency room.  He states the applicant lost the majority of his vision in the injured eye and was unable to attend the Joint Readiness Training Center rotation as well as other field exercises.  The applicant's injury was discussed by the officers and noncommissioned officers in his platoon, indicating the applicant would be discharged due to his injury and that paperwork was being submitted.  He witnessed multiple conversations between the applicant and the company commander regarding the reason for his discharge related to his eye injury.  The company commander inquired about completion of paperwork for a medical discharge.  He understood from these encounters that the applicant was being discharged because of his eye injury.

11.  Army Regulation 635-200, chapter 18, in effect at the time, stated Soldiers who failed to meet the body fat standards set forth in Army Regulation 600-9 (The Army Weight Control Program) were subject to involuntary separation per this chapter when such condition was the sole basis for separation.  Separation proceedings would not be initiated under this chapter until the Soldier had been given a reasonable opportunity to meet the body fat standards as reflected in counseling or personnel records.  Soldiers who had been diagnosed by health care personnel as having a medical condition that precluded them from participating in the Army Weight Control Program would not be separated under this chapter.

12.  Army Regulation 600-9, in effect at the time, established policies and procedures for implementation of the Army Weight Control Program.  After a period of dieting and/or exercise for 6 months, Soldiers who had not made satisfactory progress and who still exceeded the screening table and body fat standards would be subject to separation.  The commander or supervisor would inform the individual in writing that initiation of separation proceedings was being considered under the provisions of Army Regulation 635-200 unless a medical reason was found to preclude the loss of weight or there was other good cause to justify additional time in the Army Weight Control Program.

13.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).

	a.  Soldiers with conditions listed in chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The following are causes for referral to an MEB relating to eyes:

		(1)  residuals or complications of injury or disease, when progressive or when reduced visual acuity does not meet the criteria stated in paragraph 3-16e.

		(2)  unilateral detachment of retina if any of the following exists:

		(a)  visual acuity does not meet the standard stated in paragraph 3-16e;

		(b)  the visual field in the better eye is constricted to less than 20 degrees;

		(c)  uncorrectable diplopia exists; and

		(d)  detachment results from organic progressive disease or new growth, regardless of the condition of the better eye.

	b.  Paragraph 3-16e states vision that cannot be corrected with ordinary spectacle lenses to at least 20/40 in one eye and 20/100 in the other eye or 20/30 in one eye and 20/200 in the other eye, or 20/20 in one eye and 20/800 in the other eye are causes for referral to an MEB.

14.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  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 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.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Nearly 9 years after his release from active duty, the applicant contends that he should have been separated for unfitness due to his left eye injury instead of weight control failure.  He further contends that some of his paperwork may not have been forwarded to the separation office or it may have been mixed up with another Soldier with the same last name.

2.  His records show he incurred an injury to his left eye on 19 January 2005 and was diagnosed as having a choroidal rupture.  On 15 February 2005, his left eye visual acuity was measured as 20/125.  His records do not document his right eye visual acuity.  His records do not contain evidence indicating he was assigned a temporary or permanent physical profile limiting his ability to perform his assigned duties due to left eye vision impairment or was found to be unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.

3.  An award of a VA rating does not establish error or injustice on behalf 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 it determines were incurred during military service and subsequently affect the individual's civilian employability.  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 may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

4.  Although his records are void of documentation relating to his placement in the Army Weight Control Program, his DD Form 214 shows he was released from active duty on 11 April 2005 for weight control failure under the provisions of Army Regulation 635-200, chapter 18, and he authenticated this form with his signature.

5.  Based on the available evidence, the presumption of administrative regularity must be applied.

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)                                         AR20140002375



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ABCMR Record of Proceedings (cont)                                         AR20140002375



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