IN THE CASE OF:	   

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150002163 


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 uncharacterized discharge, based upon not meeting medical procurement standards, be changed to a disability retirement
* to personally appear before the Board.

2.  The applicant states, in effect:

* his discharge on 20 July 2012 was based on a medical evaluation which determined he suffered from asthma
* this medical condition would have made it impossible for him to complete basic combat training
* the Department of Veterans Affairs (VA) later concluded his asthma was service-connected and gave him a disability rating of 30 percent; this rating was made effective 1 August 2012
* he contends the fact VA found a service-connection and gave him a 30 percent rating clearly shows he should have been discharged as a result of physical disability; instead his separation was based on a failure to meet procurement medical standards

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings)
* two page extract from military medical records
* letter from VA, dated 25 September 2012, addressed to the applicant
* VA Rating Decision, dated 26 September 2012

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's uncharacterized discharge based on failing medical procurement standards be changed to a medical retirement.

2.  Counsel states, in effect:

* in June - July 2012, the applicant experienced respiratory problems during basic training
* in July 2012, he was medically evaluated and determined to be unsuited for retention based upon a diagnosis of asthma
* his chain of command agreed with the findings and conclusions of the medical board; consequently the applicant was discharged on 20 July 2012
* on 26 September 2012, the VA issued a decision acknowledging the applicant's asthma was service-connected; he was awarded a 30 percent disability rating
* clearly, before being separated from active duty, the applicant should have been evaluated in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)
* because he received a 30 percent disability rating from the VA, he should have been medically retired rather than simply discharged by the Army

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he underwent an enlistment physical at the Charlotte Military Entrance Processing Station, Charlotte, NC, on 2 February 2012.  He answered in the negative to all medical questions related to prior history of asthma.  

2.  Records show he then enlisted in the Regular Army on 5 June 2012.  He was subsequently assigned to Company D, 3rd Battalion, 13th Infantry Regiment, Fort Jackson, SC.  During week 4 of training he was identified as having a medical condition (asthma), which existed prior to service (EPTS).  He was referred for medical evaluation.

3.  His DA Form 4707, dated 5 July 2012, shows that after careful consideration of his medical records, laboratory findings, and a medical examination, the board found the applicant was medically unfit for enlistment in accordance with current medical fitness standards.  In the opinion of the evaluating physicians, the condition existed prior to service.

	a.  History of EPTS Condition:  it stated the applicant was a 20 year old male in the 4th week of basic training.  He had fallen behind due to shortness of breath and wheezing.  A methacholine challenge (a medical test used to assist in the diagnosis of asthma) was consistent with asthma.  His past medical history was reviewed.

	b.  Physical Findings:  it stated current vital signs were reviewed.  All aspects of his physical condition were found to be within normal limits.  Regarding his lungs, the following were observed:

* respiration rhythm and depth were normal
* clear to auscultation (the action of listening to sounds from the lungs, typically with a stethoscope, as part of a medical diagnosis)
* no wheezing was heard
* no rhonchi (continuous low-pitched rattling lung sounds) was heard
* no rales or crackles heard

	c.  Diagnosis:  Asthma (Asthma, unspecified)

	d.  Recommendation:  the applicant be separated for a failure to meet medical procurement standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-23d (Lungs, Chest Wall, Pleura, and Mediastinum - Asthma).

4.  On 9 July 2012, the medical approving authority approved the findings of the EPSBD.  

5.  On 10 July 2012, the applicant acknowledged he had been informed of the medical findings.  He additionally affirmed:

* he understood that legal advice from an attorney was available to him, or he could consult a civilian counsel at his own expense
* he understood he could request to be discharged from the Army without delay, or could request to be retained on active duty
* if retained, he could be involuntarily reclassified into another military occupational specialty based upon his medical condition

6.  The applicant concurred with the EPSBD proceedings and requested to be discharged without delay.

7.  On 10 July 2012, his unit commander recommended approval of his discharge.  

8.  On 11 July 2012, the discharge authority approved the applicant's separation from the Army.  Accordingly, he was discharged on 20 July 2012.  

9.  His DD Form 214 shows his character of service was uncharacterized under the provisions of paragraph 5-11 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  The narrative reason was failure to meet Army procurement medical fitness standards.  He completed a total of 1 month and 16 days of net active creditable service.

10.  The applicant provides a letter from the VA and a VA rating decision, dated 26 September 2012.  The rating shows the applicant was awarded service-connection for asthma and awarded a disability rating of 30 percent.  The letter from VA states the disability rating was effective 21 July 2012 (the day following his separation from active duty).

11.  Army Regulation 635-200 sets forth the basic authority for the separation of active duty enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated.  

	a.  A medical proceeding conducted by an EPSBD, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement).  

   b.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be shown as uncharacterized (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U. S. Code (USC), Chapter 61 (10 USC 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.  

	a.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  

	b.  Soldiers are referred into the PDES system when it is determined that they did not meet physical standards for enlistment, appointment and/or induction in accordance with chapter 2 of Army Regulation 40-501, or they no longer meet medical retention standards in accordance with chapter 3, Army Regulation 40-501.

	c.  Chapter 4 of Army Regulation 635-40 provides for the separation of enlisted Soldiers found to be unfit by a physical evaluation board due to a condition which existed prior to service.  Paragraph 4-24b(4) provides for separation for physical disability without severance pay (emphasis added).

	d.  Paragraph c-12 (Compensation and Related Benefits), subparagraph b (Retired Pay) states a Soldier who is unfit because of physical disability may be permanently retired if he or she has a disability rating of 30 percent or more.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation.  Chapter 2 provides for the physical standards for enlistment/induction.  Paragraph 2-23d (Lungs, Chest Wall, Pleura, and Mediastinum - Asthma) states:

Asthma, including reactive airway disease, exercised-induced broncospasm, or asthmatic bronchitis, reliably diagnosed and symptomatic after the 13th birthday, does not meet the standard.  Reliable diagnostic criteria may include any of the following elements:  substantiated history of cough, wheeze, chest tightness, and/or dyspnea (difficult or labored breathing) that persists or recurs over a prolonged period of time, generally more than 12 months.

14.  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 higher VA rating does not establish error or injustice in the Army rating.       

	a.  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.  

	b.  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.  

	c.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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.

15.  AR 15-185 (ABCMR) prescribes policies and procedures for the ABCMR.  It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests through counsel that his uncharacterized discharge based upon not meeting medical procurement standards be changed to a disability retirement.  

	a.  This request is based on the fact VA awarded him a 30 percent disability rating for asthma, the medical condition which caused him to be separated.  

	b.  Counsel contends, in effect, the VA's award of this service-connected disability and the award of a 30 percent disability rating is proof the applicant's condition would have qualified for the same disability rating from the Army.  He further asserts because 30 percent is the minimum percentage required to qualify for retirement due to physical disability, the applicant should have been retired not separated.

2.  The applicant's request for a personal appearance hearing was carefully considered however, by regulation an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case the evidence of record, including independent evidence he provided is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  The EPSBD proceedings clearly established that he suffered from a disqualifying medical condition that existed prior to the applicant's service (emphasis added). 

	a.  According to accepted medical principles, the manifestation of a chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) is accepted as proof that the disease existed prior to entrance into active military service.  

	b.  Absent the pre-existing medical condition, there was no fundamental reason to consider the applicant's records by an EPSBD.  The underlying reason for his EPSBD was his EPTS condition.  

	c.  His records were evaluated by an EPSBD.  He concurred and requested immediate discharge. 

4.  The Army disability rating is intended to compensate the individual for the loss of a military career and is based on medical conditions which were caused by or had their onset during military service.  Because EPTS medical conditions are not the result of military service and, by definition, existed prior to service, Soldiers with these medical conditions are normally separated without any disability compensation.  

5.  Because this condition was identified within his first 180 days of service, the applicant's discharge was appropriately characterized with an entry-level characterization of service (uncharacterized).  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

6.  Counsel provides a rating decision from VA which addresses the medical condition which resulted in the applicant's separation.

	a.  The applicant appears to have been awarded service-connected disability compensation by the VA.  However, an award of a rating by another agency does not establish error in the rating assigned by the Army's disability system.  
	
   b.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for the military services.                      
   
c.  The VA may award ratings because a medical condition was related to military service (service-connected) and now affects the individual's civilian employability.  

	d.  The findings of the VA as to disabling conditions are not binding on the Army and do not require a reassessment of earlier determinations.

7.  Based upon the foregoing, the preponderance of the evidence and applicable regulations do not support granting the 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)                                         AR20150002163



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ABCMR Record of Proceedings (cont)                                         AR20150002163



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