IN THE CASE OF:  	  

		BOARD DATE: 12 February 2015	  

		DOCKET NUMBER:  AR20140009343 


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 record to show he was determined to be unfit by the physical disability evaluation system (PDES) and retired by reason of physical disability.

2.  The applicant states he was removed from the Temporary Disability Retired List (TDRL) and returned to duty; however, he was subsequently discharged from the Army National Guard (ARNG) for the same medical conditions which deemed him unfit for duty.

3.  The applicant provides copies of his service and post-service medical records, Department of Veterans Affairs (VA) rating decisions, and miscellaneous correspondence.

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 Pennsylvania ARNG and he was ordered to active duty for training on 16 May 1973.  He successfully completed training and he was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).

3.  Evidence shows the applicant was ordered to active duty and served in Southwest Asia in support of Operation Desert Shield/Storm for the period          9 January to 19 May 1991.  However, a subsequent Statement of Medical Examination and Duty Status show the applicant, while staged at Kobar Towers, Saudi Arabia, complained of stomach trouble from the Meals Ready to Eat or water.  On 4 February 1991, he was air evacuated to Nuremburg, Germany for treatment of his condition.

4.  The applicant provides a DA Form 3349 (Physical Profile), dated 30 January 1992, which shows he received a rating of "4" for physical profile rating factor "P" (Physical Capacity), which indicates that he was unable to perform full effort.  He was rated as "1" for the five other rating factors.

5.  On 6 February 1992, after consideration of the applicant's clinical records, laboratory findings, and physical examination, a Medical Evaluation Board (MEB) diagnosed the applicant with Immune Thrombocytopenic Purpura (ITP) which was deemed medically unacceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  On 24 February 1992, the applicant agreed with the board's findings and recommendations and he was subsequently referred to a Physical Evaluation Board (PEB).

6.  On 7 July 1993, having considered all of the evidence available to include the medical evidence, the applicant's testimony, and comments of counsel, the board found the applicant fit to perform the duties of an 88M (Motor Transport Operator) and recommended the applicant be returned to duty as fit.

7.  On 8 July 1993, the applicant submitted a rebuttal of the findings.  He stated that his spleen had been removed and that he would have to take steroids for the rest of his life.  He stated the steroids had already given him ulcers, that he was on a permanent P-4 profile, and that he was definitely not fit for duty in his MOS.

8.  On 19 July 1993, the Washington PEB informed the applicant that his entire case had been carefully reviewed and the board found no basis for a change in its findings.  The applicant's concern that he would have to take steroids the rest of his life, and that he would suffer a catastrophic degradation in his health was not supported by medical evidence.  The evidence of record showed the applicant was able to maintain an adequate platelet count on low doses of steroids; therefore, the board reaffirmed its previous findings.

9.  On 13 September 1993, the Chief, Physical Disability Branch approved the findings of the applicant's PEB.  The applicant was found physically fit to perform the duties of his grade, rank, and MOS in accordance with physical profile and assignment limitations.  He was released from active duty on 15 November 1993.

10.  On 20 December 1993, upon request by the applicant, he was honorably discharged from the ARNG and assigned to the Retired Reserve.  He had completed over 20 years of creditable service for pay.

11.  The applicant provides a letter from the VA, dated 27 May 1997, which increased his disability compensation for ITP from 30 to 70 percent.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and 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 office, grade, rank, or rating.  It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also states the following:

	a.  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.  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;
	
	b.  paragraph 3-2b(2) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating;

	c.  paragraph 3-2b(2)(a) and 3-2b(2)(b) state that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty; and
	
	d.  paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD).  The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty.  There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination:

* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in the military service

14.  Title 10, U.S. Code, 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, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

15.  Title 38, U.S. Code, sections 1110 and 1131, permits 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.  As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his record to show he was determined to be unfit by the PDES and retired by reason of physical disability has been carefully considered.

2.  The purpose of the PDES is to maintain an effective and fit military organization with the maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the Army and the Soldier are protected.

3.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system.  Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation process beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.

4.  Evidence shows the applicant was processed through the PDES and the board found the applicant fit to perform duty.  The applicant's rebuttal of the findings was considered and his concern that he would have to take steroids the rest of his life, and that he would suffer a catastrophic degradation in his health was not supported by medical evidence.  The evidence of record showed the applicant was able to maintain an adequate platelet count on low doses of steroids; therefore, the board reaffirmed its previous findings that the applicant was physically fit to perform the duties of his grade, rank, and MOS in accordance with physical profile and assignment limitations.

5.  The ARNG did not release him due to his disabilities; they transferred him to the Retired Reserve at his own request.

6.  The PDES provides that 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 a physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform based on the Soldiers office, grade, rank, or rating.

7.  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.  The applicant appears to have been physically or medically fit at the time he requested discharge from the ARNG and assignment to the Retired Reserve.

8.  In view of the foregoing, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20140009343





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ABCMR Record of Proceedings (cont)                                         AR20140009343



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