IN THE CASE OF: 

                  BOARD DATE:      14 November 2014

                  DOCKET NUMBER: AR20140003550


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 retirement for 20 years of active service be changed to a disability retirement with an increase of his percentage of retirement.

2. The applicant states he is blind in his left eye. His left eye problem started in 1979 and he was totally blind in his left eye when he retired (in 1993). He was not offered a disability retirement. He held a P3 profile for his left eye for over
10 years. He was reclassified into another military occupational specialty (MOS) in 1982. In 1985 he went to a medical hearing board to see if they would let him stay in the Army in his MOS. The Department of Veterans Affairs (VA) only gave him a 30 percent service-connected disability rating. He believes he should have gotten a disability retirement with a higher rating than 50 percent (for retirement with 20 years of active service).

3. The applicant provides his service medical records.

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. On 8 June 1973, he enlisted in the Regular Army. He completed basic combat and advanced individual training and was awarded MOS 16P (Chaparral Crewmember). He was later awarded MOS 16S (Man Portable Air Defense System (MANPADS) Crewmember).

3. His service medical records from 31 January 1974 to 28 December 1992 show he received treatment for ocular toxoplasmosis in his left eye beginning on 19 March 1979.

4. DA Forms 3349 (Medical Condition - Physical Profile Record) dated 10 July,
4 and 18 September and 20 November 1979, show that under the PULHES he was assigned a physical profile of T-3 under E. Item 6 (Individual has the Defect(s) Listed Below) stated he had a scar in the back of his left eye secondary to an infection with a tendency to recur. The profiles are shown to be temporary.

5. A DA Form 3349, dated 11 January 1980, shows that under the PULHES he was assigned a physical profile of P-3 under E. Item 6 stated he had a scar in the back of his left eye secondary to an infection with a tendency to recur. The profile is shown as permanent.

6. DA Forms 3349, dated 9 March 1982 and 27 October 1983, show that under the PULHES he was assigned a physical profile of 3 under E. Physical Defect is indicated as Toxoplasmosis (Scar in back of left eye whereby usable vision is reduced). The profiles are shown as permanent.

7. On 8 September 1982, the Commander, U.S. Army Military Personnel Center (now known as the U.S. Army Human Resources Command (HRC)) approved the applicant's reclassification. Assignment of MOS 57H (Cargo Specialist) and appropriate skill level was to be awarded upon successful completion of formal school. MOS 16S and 16P were to be withdrawn.

8. On 12 August 1984, he was promoted to sergeant first class/pay grade E-7 in MOS 57H.

9. In a memorandum, dated 10 April 1985, subject: Notification of MOS/Medical Retention Board (MMRB) Proceedings, the applicant's commander stated he did not feel the applicant was hindered in the performance of his duties. He stated the applicant was an outstanding non-commissioned officer and he performed all tasks in a professional manner. He stated the applicant should be retained in his MOS.

10. On 6 June 1985, an MMRB was convened to determine if the applicant could be retained in MOS 57H with his medical profile. The MMRB found the applicant was fully capable of performing duties in his MOS and recommended he be retained in primary MOS 57H.

11. The applicant completed the following two overseas assignments subsequent to receiving his permanent profile for his left eye:

•         14 August 1990 - 12 April 1991 - Saudi Arabia (temporary duty)
•         6 January 1992 - 18 May 1993 - Germany

12. On 1 January 1992, he was promoted to master sergeant (MSG)/pay grade E-8 in MOS 88Z (Transportation Senior Sergeant).

13. His DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period August 1992 through May 1993 provides the following information:

         a. In Part IV - Values/NCO Responsibilities (Rater), the rater placed an "X" in the "Yes" block for all of the seven values.

         b. The rater placed an "X" in the "Excellence" blocks of IVb (Competence) and IVe (Training).

         c. The rater placed an "X" in the "Success" blocks of IVc (Physical Fitness & Military Bearing), IV (Leadership), and IVf (Responsibility & Accountability).

         d. In Part Va, the rater placed an "X" in the "Among the Best" block.

         e. In Part Ve, a bullet states the senior rater did not meet the minimum qualifications.

14. On 31 July 1993, the applicant was retired for length of service and placed on the Retired List the following day. He had completed 20 years, 1 month, and 13 days of active service.

15. The Centers for Disease Control and Prevention website states eye disease from toxoplasma infection can result from congenital infection or infection after

birth by any of several modes of transmission. Eye lesions from congenital infection are often not identified at birth but occur in 20-80 percent of infected persons by adulthood. Eye infection leads to an acute inflammatory lesion of the retina, which resolves leaving retinochoroidal scarring. The eye disease can reactivate months or years later, each time causing more damage to the retina. If the central structures of the retina are involved there will be a progressive loss of vision that can lead to blindness.

16. Army Regulation 40-501 (Standards of Medical Fitness), then in effect, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.

         a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provided the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter were referred for disability processing.

         b. Chapter 7 (Physical Profiling) provided a system for classifying individuals according to functional abilities and was used to assist the unit commander and personnel officer in their determination of what duty assignments the individual was capable of performing, and if reclassification action was warranted.

                  (1) Four numerical designations (1-4) were 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, and
S-psychiatric.

                  (2) Numerical designators "2" and "3" indicated that an individual had a medical condition or physical defect which required certain restrictions in assignment within which the individual was physically capable of performing military duty. The individual received assignments commensurate with his or her functional capacity.

17. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibility, and procedures that apply in determining whether a member is unfit because of physical disability to perform the duties of his office, grade, rank, or rating.

         a. The mere presence of an impairment does not, in of itself, justify a finding of unfitness because of physical disability.

         b. The medical treatment facility commander with the primary care responsibility evaluates those referred to him and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to a medical evaluation board (MEB). Those members who do not meet medical retention standards are referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

         c. Paragraph 3-2b(1) states that when a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption may be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit.

         d. Paragraph 4-19d(1) stated the first and most important determination made by the PEB is whether the Soldier was physically fit or unfit to perform the duties of his or her office, grade, rank, or rating.

         e. Paragraph 4-19i stated that after establishing the fact that a Soldier was unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB decided the percentage rating for each unfitting compensable disability. Percentage ratings reflected the severity of the Soldier's medical condition at the time of rating. The VA Schedule for Rating Disabilities (VASRD) was used in deriving percentage ratings.

18. Title 38, U.S. Code, 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. 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. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1. His medical records show treatment for his left eye condition began in 1979 and he had temporary profiles due to his eye condition beginning on 10 July 1979. This ultimately led to a permanent profile for his left eye on 11 January 1980.

2. Based on the permanent profile for his left eye, he was required to change his MOS to 57H in 1982. On 6 June 1985, an MMRB approved the applicant to remain in MOS 57H. He went on to complete two tours of duty overseas and was promoted to MSG. His last NCOER clearly showed he was able to perform his prescribed duties in his duty MOS at the time, and he was recommended for further promotion. His continued performance of assigned duties commensurate with his rank or grade until his retirement creates a presumption that he was fit for duty. The applicant has not provided clear and convincing evidence sufficient to overcome this presumption.

3. He contends he is blind in his left eye and the VA only awarded him a
30 percent disability rating. 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.

4. The VA evaluates veterans after they have left military service, including retirement. That agency can adjust the percentage of disability based on their examinations and findings, including employability based on those disabilities. The applicant should contact that Agency concerning any changes to his medical conditions.

5. In view of the above, there is no basis on which to change his military retirement for length of service to a disability retirement.

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.