IN THE CASE OF:  	  

		BOARD DATE:  30 July 2015	  

		DOCKET NUMBER:  AR20140021365 


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 medically retired.

2.  The applicant states that he was not afforded due process after a diagnosis of diabetes during his "over 40" physical examination.  He states that he was never informed of the medical finding and, as a result, he did not receive medical treatment for the condition during his military service.  He also states that the results of abnormal blood sugar were not forwarded to the Armed Forces Institute of Pathology and there was never a secondary screening performed.

   a.  He states that had he been aware of this information he would have noted the condition on his separation physical and on his initial application to the 
the Department of Veterans Affairs (VA).

   b.  He adds that he became aware of his diabetes on 6 February 2003 and filed for service-connection for diabetes type 1 on 9 March 2005.  However, on 15 December 2005, the VA denied his application finding that it was not incurred or caused by service.  In July 2010, the VA denied his formal appeal because it lacked any new material evidence.

3.  The applicant provides copies of the following documents –

* Eye Consultation
* Over 40 Physical Training (PT) clearance
* VA rating decision (1994)
* Hospital discharge summary
* VA claim and rating decision (2005)
* Social Security Administration (SSA) claim
* Congressional correspondence
* VA appeal

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 30 April 1973.  He was awarded military occupational specialty 95B (Military Policeman).  Through a series of reenlistments he continued to serve on active duty.  He was promoted to sergeant first class/pay grade E-7 on 1 August 1987.

3.  Twelve evaluation reports, spanning the period from May 1987 through July 1993, show the applicant passed the Army Physical Fitness Test (APFT) on 
12 different occasions during the 6-year and 3-month period.

4.  The applicant's military records contain a Standard Form (SF) 93 (Report of Medical History) prepared by the applicant on 30 November 1993 and an SF 88 (Report of Medical Examination) prepared by the examining physician to document the applicant's separation examination on 30 November 1993.

   a.  A review of the SF 93 failed to reveal a notation or reference to diabetes.

   b.  The SF 88 shows, in pertinent part, in –

* item 73 (Notes):  "See SF 93" 
* item 74 (Summary of Defects and Diagnoses):  "See SF 93"
* item 76 (Physical Profile):  "111211"
* item 77 (Examinee), the applicant was found qualified for separation
5.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably separated from active duty on 28 February 1994 based on sufficient service for retirement and transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He completed 20 years, 9 months, and 29 days of total active service.

6.  In support of his application the applicant provides the following documents.

   a.  A DD Form 741 (Eye Consultation), dated 24 November 1986, that shows the applicant was 39 years of age and reported decreased visual acuity (near) when reading.  The "Pertinent History and Physical Findings" block shows, "NKA [No Known Allergies], Medication – None, Possible diabetic – Mother – diabetic."

   b.  A letter pertaining to the applicant, dated 23 July 1987, for evaluation of the data that revealed one or more of the criteria for clearance (risk index, clinical factor, fasting blood sugar, or ECG [Electrocardiography]) to be elevated or abnormal.  It shows, "When the consultation has been completed and returned, indicate in the space provided below whether the consultation has or has not given clearance after his secondary screening procedures.  Notify the member's personnel records manager, the member's unit commander, and the member."  It also shows an "X" for "Clearance granted."  It further shows on page 2, "Thank you for forwarding the results of the secondary screen indicating that the member has been cleared [emphasis in letter] for entry into the Over 40 Training and Testing Program.  Those comments have been entered in the Over 40 Data File.  If not already done, notify the member's personnel records manager, the member's unit commander, and the member.  Also, file this completed form in the member's health record.  The member should begin training in the Over 40 PT Program and should be tested after the next three months."

   c.  Noble Army Hospital, Physical Exam Clinic, Fort McClellan, AL, letter, dated 1 February 1988, subject:  Clearance for Over–40 PT, addressed to the applicant to notify him that he was cleared for participation in the PT program
(for Soldiers who are over 40 years of age), effective 19 August 1987.

   d.  VA Rating Decision, dated 10 September 1994, that shows, in pertinent part, the evidence reviewed was the applicant's Service Medical Records for the period 30 April 1973 through 30 November 1993 and VA examination, dated 
5 September 1994.  There is no indication the condition of diabetes was an issue.

   e.  Doctors Hospital, Ohio Health, Columbus, OH, dated 6 February 2003, that shows the applicant was 55 years old (at the time) when he was admitted through the emergency room with a glucose of 967, creatinine of 1.5, calcium of 11.7, and symptoms of polyuria, polydipsia, and lightheadedness.  It also shows, "The patient had no previous history of diabetes."  If further shows a final diagnosis of, in pertinent part, "New onset type 1 insulin-dependent diabetes."

   f.  VA Regional Office, Cleveland, OH, Rating Decision, dated 12 February 2004, that shows the applicant was informed the VA required evidence showing the condition (diabetes) existed from military service to the present time.
   
   g.  SSA, Office of Hearings and Appeals, Orland Park, OH, Notice of Decision, dated 11 January 2005, that shows the applicant filed an application for disability insurance benefits alleging disability since 9 August 2002 due to, in pertinent part, diabetes mellitus.  The SSA determined the applicant "has the following medically determinable 'severe' impairments:  diabetes mellitus, right arm ulnar nerve injury status post reconstructive surgery, chronic pain in both ankles, chronic left hip pain, and depression."

   h.  VA Form 21-4138 (Statement in Support of Claim), dated 9 March 2005, that shows the applicant claimed service connection for diabetes based on service at the U.S. Army Chemical Activity, Johnston Atoll, from July 1993 to January 1994.  He also claimed service connection for post-traumatic stress disorder and hearing loss.

   i.  Correspondence pertaining to the applicant regarding his effort to obtain information about his VA claim.  It shows a request was initiated on behalf of the applicant by his Representative in Congress.  He requested a copy of an evaluation that had been issued indicating the applicant should not be cleared to enter the Army Over-40 Training and Test Program and also the Final Environmental Baseline Survey of Fort McClellan, Alabama.  A Department of Defense, Armed Forces Institute of Pathology, Washington, DC, letter, dated 29 September 2010, shows a search of archived files could not find any information.

   j.  Applicant's appeal of the VA rating decision, dated 8 September 2010 and 
7 February 2011, that shows he stated, "Legal issue arose for me when the VA allowed me to be privy to my C-File at which time I noticed my over 40 years of age physical evaluation, which indicated Abnormal Blood Sugar and service member to be further screen [sic], and counselled on the medical implication, and results forwarded to Armed Forces Institute of Pathology."

   k.  An extract of a VA Regional Office, Cleveland, OH, Rating Decision, dated 29 July 2014, that shows the VA "has applied the benefit-of-the-doubt and liberally and sympathetically reviewed all submissions in writing from the Veteran as well as all evidence of record."  It also shows, "The claim for service connection for type II diabetes mellitus remains denied because the evidence submitted is not new and material."

7.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) 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 Soldiers in the active Army.

   a.  Paragraph 3-1 (General) shows that these medical conditions and physical defects, individually or in combination, are those that:

    	(1)  Significantly limit or interfere with the Soldier's performance of their duties.

    	(2)  May compromise or aggravate the Soldier's health or well-being if they were to remain in the military service.  This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special
treatments, or a requirement for frequent clinical monitoring.

    	(3)  May compromise the health or well-being of other Soldiers.

    	(4)  May prejudice the best interests of the Government if the individual were to remain in the military service.

   b.  Paragraph 3-4 (General policy) shows that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service.

   c.  Paragraph 3-11 (Endocrine and metabolic disorders) lists the causes for referral to a medical evaluation board and shows, in pertinent part –

* diabetes insipidus requiring the use of medication for control
* diabetes mellitus, unless hemoglobin A1c can be maintained at <(less than) 7% using only lifestyle modifications (diet, exercise)

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

9.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30 percent.

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 (or other government agency) disability 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.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 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.  The applicant contends, in effect, that his records should be corrected to show he was medically retired based on a diagnosis of diabetes because he was never informed of this medical finding during his military service and there was no secondary screening performed, thus the VA could then grant him service-connection for this medical condition.

2.  The evidence of record shows the applicant was seen for an eye consultation on 24 November 1986.  At that time he acknowledged a medical history of "possible diabetic (mother diabetic)."

3.  On 23 July 1987, the results of medical tests identified one or more of the criteria of elevated or abnormal factors that precluded the applicant's entry into the Over 40 Training and Testing Program.  A consultation was directed for a secondary screening.  The evidence of record shows that as a result of the secondary screening (emphasis added), the applicant was cleared for entry into the Over 40 Training and Testing Program and he was notified of the results.

   a.  The evidence of record shows the applicant successfully completed the APFT on numerous occasions during the July 1987 to July 1993 timeframe.

   b.  Thus, based on the evidence of record, it is reasonable to conclude that the applicant was notified (in the summer of 1987) that he was cleared for entry into the Over 40 Training and Testing Program because he continued to participate in the Army's PT program and successfully completed the APFT throughout that period.  This also offers evidence that he was not denied clearance for continuation in the Over 40 Training and Testing Program based on any subsequently identified elevated or abnormal risk factor.

4.  There is no evidence of record that shows the applicant's medical conditions (individually or in combination) were medically unfitting for retention under the provisions of Army Regulation 40-501 requiring referral to a medical evaluation board.  There is also no evidence that shows he was unable to perform his duties (within any specified assignment limitations) 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. 

5.  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).  The examining physician determined the applicant was 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.
6.  Records show the applicant was released from active duty on 28 February 1994 based on sufficient service for retirement 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.

7.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  As a result, the applicant's retirement from active duty is presumed proper and equitable.

8.  Therefore, since there is no evidence of record to show that the applicant's medical condition(s) was/were medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical separation or medical retirement.  Therefore, the applicant is not entitled to correction of his records to show he was medically discharged based on a permeant disability rating of less than 30 percent or that he was medically retired based upon a permanent disability rating of 30 percent (or more).

9.  The evidence of record shows, on 6 February 2003, a physician at Doctors Hospital, Ohio Health, noted the applicant had no previous history of diabetes.  At that time, the applicant received a diagnosis of "new onset type 1 insulin-dependent diabetes."

10.  Both the statutory and regulatory guidance provides 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.  In this regard, the issue of determining service connection is not within the purview of the ABCMR.  Any questions regarding such determinations should be addressed to the VA or appropriate government agency.

11.  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)                                         AR20140021365



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ABCMR Record of Proceedings (cont)                                         AR20140021365



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