MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 March 1999                   
	DOCKET NUMBER:   AC94-07043
				   AR1999019318

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Ed Clark		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, further consideration of her application which was denied by the Board on 12 February 1997.  The case was remanded to the Board by a civil court on 19 November 1998 with instructions to provide the applicant an opportunity to submit all evidence relating to her claim. 

APPLICANT STATES:  In essence, that she suffers from residuals of a vehicle accident, that she suffers from asthma; and that she should have been awarded a disability rating and separated from active duty by reason of physical disability.

COUNSEL CONTENDS:  In essence, in a 5-page letter dated 7 December 
1998 addressed to the Board, that the applicant suffered from asthma which was serious enough to qualify her for disability processing; that the applicant underwent a portion of a medical evaluation board (MEBD) which was not completed; that the opinion of an examining physician who reported that the applicant's asthma condition was not serious enough to warrant referral to an MEBD is refuted by an examination conducted in a Pulmonary Clinic; that he believes that the MEBD was cancelled due to "Army personnel's efforts to gloss over [the applicant's] subsequent injury," that the applicant was injured in a motor vehicle accident on 16 November 1990; that injuries resulting from that accident rendered her unable to perform her military duties; that a Report of Medical Evaluation dated 27 (sic) November 1990 outlined significant and abnormal injuries to the applicant's head, upper and lower extremities, and spine; that despite alleged misconduct she was awarded an honorable discharge; that civilian authorities determined that she was unable to work from October 
1992 through January 1993; that on 6 August 1992 she was diagnosed as suffering from post traumatic headaches, post traumatic back pain, and probably PTSD (post traumatic stress disorder).  In support of the application, he submitted various documents labeled Exhibit 1 through Exhibit 15.

EVIDENCE OF RECORD:  The applicant's military records show:

She was born on 15 December 1962 and entered active duty on 14 June 
1989 at age 26.  She served in military occupational specialty (MOS) 91B, medical specialist, and was serving in pay grade E-2 in a medical battalion in Hawaii during the period of time in question.

On 6 March 1990 she was counseled after failing to be at her appointed place of duty.

On 6 April 1990, after complaining of breathing difficulty after running, she was treated with oxygen for possible hyperventilation syndrome, directed not to participate in physical training, and referred to a specialist in pulmonary medicine.

On 11 April 1990 she was punished under Article 15, Uniformed Code of Military Justice (UCMJ), for failing to go to her appointed place of duty.

On 23 July 1990 she was counseled for missing a troop movement and for disobeying the lawful order of a noncommissioned officer to attend a scheduled formation.

On 28 August 1990 she was punished under Article 15, UCMJ, for being derelict in the performance of her duties by willfully failing to go to a training site.

On 10 September 1990 she was issued a temporary Physical Profile, DA Form 
3349, with assignment limitations prohibiting her from running at more (faster) than a 12 minute per mile pace, and for no more than 30 minutes per day.

A 16 October 1990 temporary Physical Profile shows her medical condition as "Asthma" and continued to prohibit her running to no more than a 12 minute mile, and provided for walking and physical training at her own pace.

On 2 November 1990 she was issued a permanent Physical Profile which continued the aforementioned assignment limitations.  The form also shows that she was to "Use discretion with NBC (nuclear, biological, and radiological) training.  If patient has asthma attack during NBC training, she should cease the NBC training immediately."

An 8 November 1990 medical document shows "Using inhaler PRN (as necessary) if attack comes on or before exercise.  Patient (on her own) doesn't…uses [medication] because of increased exercise."  The examining physician wrote that she should continue to use medication prior to exercise and wrote, in part, "I would recommend MMRB (MOS/Medical Retention Board - doubt if [she] will be able to meet physical requirements demanded." 

On 12 October 1990 she underwent a mental status evaluation.  An evaluating social work officer (presumably a psychologist) found that the applicant was mentally responsible, fully alert, fully oriented, and that her thought content was normal.  In the Remarks portion of the Report of Mental Status Evaluation form, he wrote, in part, "Currently, this soldier is pending [an administrative discharge] and feels it is in her best interest as well as the U.S. Army's.  She clearly wants out as soon as possible."  He cleared her for any administrative action deemed appropriate by her commander.

On 7 November 1990 the applicant signed a form indicating that she did not desire to undergo a separation medical evaluation; that her records would be reviewed by a physician; and that if such a review indicated the need for an examination she would be scheduled for a medical evaluation.

On 13 November 1990 she underwent a medical evaluation.  The purpose of the examination is shown as medical board and is signed by a physician, a medical service officer (presumably an optometrist), and a dentist.  It is not signed by an approving authority.  The evaluating physician described various medical conditions, including musculo-skeletal bruises and stress injuries (subjective findings only) and asthma and a severe reaction to medication as reported by the applicant.  He recorded her physical profile serial (PULHES) as 311111. 

A Statement of Medical Examination and Duty Status, DA Form 2173, shows that 3 days later, on 16 November 1990, the applicant "lost her balance and fell in the back of an ambulance.  She was evaluated by TAMC (Tripler Army Medical Center) and kept overnight.  She was released to her unit the next day."  Item 
11 of the form, Medical Opinion, shows that the examining physician indicated that a claim against the Government for future medical care was not likely.

A Physical Profile, dated 6 December 1990, signed by two physicians and approved by a senior physician, shows that she was issued a Physical Profile for asthma with her physical profile serial shown as 311111 with appropriate assignment limitations including running no more than 12 minutes in formation and "Expected to take and pass APRT (Army Physical Readiness Test)."

On 26 December 1990 the senior physician who approved the applicant's 
6 December 1990 Physical Profile provided a medical statement to the applicant's commander.  He wrote, in part, "Although she has exercise induced asthma, it is not severe enough to require referral to a Medical Evaluation Board. She is fit for retention (meets Army medical fitness standards) under Chapter 
3, AR (Army Regulation) 40-501.

On the following day, 27 December 1990, her commander recommended that she be separated from the service for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He wrote that the applicant had been repeatedly counseled for being late for formations, for not being at her appointed place of duty, for leaving her appointed place of duty without authority, and that she had failed to show initiative or potential to perform.  Following further counseling, she waived her right to counsel by a military or civilian lawyer, and waived her right to submit statements in her own behalf.

On 15 January 1991, with 1 year, 7 months, and 2 days total active service, she was honorably separated from active duty.

A VA Rating Decision shows that she was awarded a 20 percent rating for a back injury and a zero percent rating for residuals of a head injury.  Approximately 
2 1/2 years later, on 16 June 1993, the VA increased the zero percent rating to 50 percent "On the basis of reasonable doubt, [her] service connected head injury will include currently diagnosed related adjustment disorder with mixed emotional features."  That evaluation included a statement from a physician indicating that she was unable to work as an airport cleaner from 22 October to 25 November 1992 due to "conversion reaction (defined in The American Medical Association Encyclopedia of Medicine as a psychological illness in which painful emotions are repressed and unconsciously converted into physical symptoms) and chronic back strain."
On 8 February 1994 she submitted an application to this Board requesting military disability retirement pay stating, in part, "My symptoms have increased since discharge.  Only in August 1993 was I fully diagnosed."

On 31 January 1997 the Board was advised (COPY ATTACHED) that following a review of her medical records, The Surgeon General's Neurology Consultant determined that at the time she was released from the medical center (TAMC) on 
18 November 1990 she had no disabling control or peripheral nervous system impairment nor in subsequent medical follow-up visits; and that at the time of her last physical examination on 27 (sic) November 1990, although she had symptoms of musculo-skeletal injuries, there were no objective abnormal physical signs.  He opined that she met Army medical fitness standards and recommended denial of her claim.

On 12 February 1997 the Board denied her application.

Army Regulation 40-501, Standards of Medical Fitness, Chapter 3, provides standards for medical retention. Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty and are referred for disability processing.  Paragraph 3-27 shows that to be medically unfitting, asthma must be of sufficient severity to interfere with satisfactory performance of duty, or with frequent attacks not controlled by oral bronchodilators or inhaled medication. 

Army Regulation 40-501, Chapter 7, Physical Profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are 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.  Numerical designator 
1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.

Paragraph 7-6 of the aforementioned regulation further provides that a physical profile containing a numerical designator 3 may only be issued by a Physical Profile Board (PPBD) which will consist of physicians designated by the commander of the medical treatment facility.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 600-60, Physical Performance Evaluation System, Chapter 
2, provides that the MMRB is an administrative screening board charged with the responsibility of comprehensively evaluating the ability or inability of any soldier who has a numerical designator 3 or 4 in his or her physical profile to physically perform in his or her MOS in a worldwide field environment.  The MMRB may recommend to the convening authority that an individual be retained in his or her MOS, reclassified, referred for disability processing, or be placed in a probationary status.  The MMRB is not part of the Army disability system.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an 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.  Paragraph 3-1a further provides that the fact that a soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness.

Army Regulation 635-40, paragraph 3-2b(1), provides that 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.

Army Regulation 635-40, paragraph 3-2b(2), provides that when a member is being separated by reason 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 can be overcome only by clear and convincing evidence that he or she was 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, rendered the member unfit.

Title 38, United States Code, Sections 310 and 331, permits the VA to award compensation for disabilities which it determines were incurred in or aggravated by active military service.

Title 38, United States Code, section 3.303, provides that the term “Service connection” connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The applicant's misconduct began on or about 6 March 1990.  It included failing to go to her appointed place of duty, missing troop movement, disobeying the lawful order of her supervisor, and again failing to go to her appointed place of duty as is evidenced by counseling statements and her punishment on two occasions under Article 15, UCMJ.  None of these incidents of misconduct can reasonably be attributed to a medical condition.

2.  The applicant suffered from exercise induced asthma while she was serving on active duty.  She was treated for this condition with inhalers and medication and various physicians determined that she could perform military duty with appropriate assignment limitations.

3.  The applicant's 12 October 1990 mental status evaluation clearly demonstrates that she felt at that time that an administrative discharge was in her best interest as well as the U.S. Army's and that she wanted to be separated from the service as soon as possible.  

4.  On 8 November 1990 a physician recommended that she undergo an MMRB. This is an administrative rather than a medical evaluation board.  This did not occur; however, approximately 1 month later, on 6 December 1990, the evidence of record shows that she did undergo a PPBD (which is also composed of three physicians as is an MEBD); and that the PPBD determined that although her asthma condition required certain restrictions in assignment, she was physically capable of performing military duty.  Those three physicians, by awarding a numerical designator 3 in her Physical Profile, clearly indicated that her asthma condition was not severe enough at that time to warrant her referral to a medical board as was suggested by the evaluating physician on 13 November 1990.  It was noted at the time that the condition would not interfere with her ability to take and pass the Army Physical Readiness Test.

5.  The applicant fell in the back of an ambulance on 16 November 1990.  Apparently as a precautionary measure she was admitted to TAMC overnight.  The following day, her attending physician released her to return to duty.  There is no evidence of record of further requests for treatment by the applicant.  Accordingly, there was no medical basis on which to delay or interrupt her administrative separation.

6.  On 15 January 1991 she was separated from active duty.  During that same year, on 14 November 1991, following an evaluation by that agency, the VA awarded her a 20 percent rating for a back injury and a zero percent rating for residuals of a head injury.  It was not until approximately 2 1/2 years after the applicant had been separated, on 16 June 1993, that the VA increased the zero percent rating to 50 percent, indicating that the VA had determined through further evaluation that the residuals of her head injury had increased in severity.  

7.  By law and regulation, for an individual to be found physically unfit, he or she must be unable to reasonably perform the duties of his or her office, grade, rank or rating and the condition must be of such severity as to interrupt further military service.  The law and regulation provide, in effect, that soldiers will not have a military career terminated unless medical authorities determine that despite medical treatment an individual cannot perform military duty.  There is no evidence of record, nor has the applicant or her counsel submitted sufficient evidence to establish that she met those criteria prior to or at the time of her separation from active duty on 15 January 1991.

8.  The foregoing is supported by the advisory opinion provided by The Surgeon General's Neurology Consultant.  In view of counsel's contention regarding the date of evaluation, the Board notes that the date of her last medical evaluation is erroneously shown in the advisory opinion as 27, vice 13 November 
1990; however, the document clearly refers to the entries made in the 
13 November 1990 medical evaluation and therefore the erroneous date shown is deemed to constitute harmless error.

9.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (“service-connected”) and affects the individual’s civilian employability.  Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties before he or she can be medically retired or separated.  The evidence of record shows that the 1993 VA award for residuals of her head injury was made on the basis of reasonable doubt that the head injury might somehow be related to an adjustment disorder that had been recently diagnosed.

10.  The applicant was properly administratively separated from the service as was determined by the 12 February 1997 Correction Board action.  This Board notes, as was indicated in the Remand, that the application was not reviewed until 1997; however, at the time, the Board, which receives more than 10,000 applications each year, had a 1-year backlog and was working with a limited number of personnel, appropriately processed the application in the order in which it was received.

11.  With regard to counsel's contention that the applicant was awarded an honorable discharge despite her "alleged disobedience," the Board notes that rather than "alleged," the applicant's misconduct during her brief military service is well documented and, on two occasions, resulted in her being punished under the provisions of the Uniformed Code of Military Justice.  Unsatisfactory performance with an honorable discharge under Chapter 13 accurately characterizes her military service and therefore depriving her of the opportunity to complete her military obligation with pay and allowances was appropriate and in accordance with regulation.

12.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__CWB__  __EB___  __RJW__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC94-07043/AR1999019318	
SUFFIX		
RECON		
DATE BOARDED	19990304	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.