MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 March 2001                  
	DOCKET NUMBER:   AR20000050139

	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. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Lester Echols		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:  Reconsideration of his earlier appeal to correct his military records by showing that he was separated due to physical disability retirement.

APPLICANT STATES:  In effect, that various medical records show that he was disabled when he was separated on 31 October 1992 under the Voluntary Separation Incentive Program.  He submits numerous medical record documents to substantiate his contention.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1999025606) on 13 May 1999.

The applicant’s submissions are new evidence that warrant Board consideration.

In a 4 January 2000 letter to this Board the applicant requested reconsideration of the earlier decision.  He wrote that in 1996 he learned that on 26 February 1992 an Air Force doctor, a colonel, had sent him a facsimile transmission (Fax) that, in effect, required that his case be referred for disability processing.  This Fax was listed as an enclosure to the request.  It was not, in fact, attached.  The Air Force doctor is identified in the applicant’s Table of Contents as a lieutenant colonel.  Since there was no other new information, except for the applicant’s unsubstantiated assertions that the Board had made numerous errors, the case (AR200038871) was administratively closed.

The applicant’s current submissions comprise:

	  A 6 April 1995 response from Wright-Patterson Air Force Base to the effect that no medical records could be located.

	  A Chronological Record of Medical Care (Standard Form 600) with a
25 February 1992 entry noting an impression of asthma and discussing the use of various bronchial inhalers.  The applicant has highlighted the part that reads “Will defer to Ft. Knox on MEB as this has been required by reg for some time.”

	  A 26 February 1992 pulmonary function report citing an impression of “Positive Methacholine Bronchoprovocation test consistent with asthma.”  The report is signed by A______ J. P__________, Major, USAF, MC.  This is the doctor identified variously by the applicant as a lieutenant colonel and as a colonel.

	  A Fax cover sheet dated 7 May 1992 from the Air Force doctor to the applicant is apparently the document referred to in his 4 January 2000 letter to the Board.  It indicates that three pages are attached.  One page is the 
26 February 1992 pulmonary function test referred to above.  The other two pages are a typed narrative summary of the pulmonary consultation conducted by A______ J. P__________, Major, USAF, MC that apparently proceeded that test.  This narrative summary is hand dated 24 February 1992.

	  A Standard Form 600, dated 26 May 1992, signed by A______ J. P__________, Major, USAF, MC indicates that the applicant reported “no clear episodes of asthma exacerbation since last visit.  Describes painful L side ‘tightening up’ which are painful & seem to respond to MDI.  No nocturnal episodes.”  The Air Force physician recorded impressions of “(1) Asthma, on inhaled steroids and (2) Unable to meet minimum standards for aerobics.”

	  An approved 20 May 1992 physical profile assigned the applicant a permanent P2 classification and specified that he was permitted to walk or run at his own pace and distance, participated in unlimited walking, perform all functional activities and physical fitness tests by walking.

	  An automated record of inpatient medical pain shows that applicant was admitted to the hospital on 9 September 1992 and discharged on 11 September
with diagnoses of Atypical chest pain, hypertension, asthma and left arm numbness – resolved.

	  The report of a 1997 allergy skin test.

	  In a 9 November 1997 letter the Army Reserve Personnel Command (AR PERSCOM), Command Surgeon informed the applicant that a review of his health records indicated that he was not qualified for retention due to bipolar disorder, chronic asthma, hypertension, low blood pressure and sleep disorders.

	  A September 1998 Department of Veterans Affairs (VA) medical record shows that the applicant was hospitalized following a 3 day period of swelling of the lower left leg followed by chest pain.  He was dismissed on 18 September 1998 with diagnoses and treatment plans as follows:  (1) Deep venous thrombosis [a blood clot (thrombus) in a deep vein].  He was to be followed by the Coagulation clinic.  (2) Pulmonary embolus [obstruction of a blood vessel by a foreign substance or a blood clot].  The treatment was the same as that for diagnosis (1) above.  (3) The patient’s past history indicated the probability of hypercogulable state.  Again, the treatment would be the same.  (4) Asthma; mild and stable.  Patient reported a history of inhaler use once per week.  

(5) Rule out rectal bleeding.  He was to be scheduled for examination by the gastroenterology clinic.  (6) Chest pain.  Myocardial infarction was ruled out.  Although he did have a electrocardiogram abnormality that might need to be “worked-up”.

	  A 14 September 1999 VA medical record documents the beginning of deep venous thrombosis in the left lower leg.

  The applicant inquired, in a 29 April 2000 letter to the AR PERSCOM, how much disability compensation his family was entitled to by virtue of the September 1997 decision.  He also inquired as to what documentation was used in reaching that decision.  In a handwritten note he complains that the VA and the AR PERSCOM both claimed that the other had his medical records.

  The applicant presents a two page table and a one page color table in which he seems to be comparing his numerous symptoms and conditions to Gulf War Syndrome and speculates as to what in-service occurrences might have caused these problems.

The applicant’s Official Military Personnel File (OMPF) evidences the following:

  An officer Evaluation report (OER) for the period from 26 April 1991 to 25 April 1992 shows; in Part IV, block a.3; “Officer is undergoing medical evaluation for PROFILE determination.  Officers physical condition does not impair job performance.”

  On 20 May 1992 a physical profile of 211111 for asthma authorizing an alternative aerobic event (walking) as well as push-ups and sit-ups was approved.

  An OER for the period from 26 April 1992 to 31 October 1992 noted in Part IV, block 3.a that in June 1992 the applicant had passed his annual physical fitness test.  

  On 14 September 1992 the applicant’s request for unqualified resignation under the provisions of the Voluntary Separation Incentive (VSI)  Program was approved by the Commander, Total Army Personnel Command (PERSCOM).

  On 30 September 1992 the applicant was awarded the meritorious Service Medal with 2nd Oak leaf cluster for the period of Service ending
30 October 1992.

  On 31 October 1992 he was separated from active duty and transferred to the Army Reserve.  He received a VSI payment of $15, 075.65.  
Army Regulation 40-501, chapter 7, 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: 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.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  Even the numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.  To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary).  The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

Title 38, United States Code, sections 310 and 331, 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.

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

The Physical Disability Agency has noted in similar cases that confusion often arises from the fact that different rating systems are used by the Army and the Department of Veteran Affairs.  While both use the Veterans Administration Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability or social adaptability .

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence had been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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

1.  The requirement that a request for reconsideration includes substantial relevant evidence that shows fraud, mistake in law, mathematical miscalculation, manifest error, or substantial relevant new evidence discovered contemporaneously or within a short time after the Board’s original decision is waived.  The Board considers it to be in the interest of justice to consider and address the applicant’s contentions and evidence. 

2.  The applicant’s record clearly shows that no physical condition impaired his performance of duty.  His final OER so states in unequivocal terms.  His assigned P2 profile did not even seriously affect his duty assignment Furthermore, he was transferred to the Army Reserve and continued to serve for five more years before he was determined to be not physically qualified for retention.  

3.  His service was not terminated because of any physical condition.  He was performing his duty and he has not overcome the presumption of fitness created by such performance of duty.

4. The fact that the VA has awarded the applicant a disability rating which is not in consonance with the Army's physically fit rating, but is within the policies of that agency, does not mean that either rating is erroneous.  The VA rating does not establish physical unfitness, nor the degree thereof, for Department of the Army purposes.  Each department is bound to operate within its own rules, regulations, and policies.

5.  Regardless of the applicant’s current medical conditions, what caused them or how the VA chooses to currently evaluate them the applicant was not entitled to physical disability processing or retirement at the time of his separation from active duty.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  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

_JNS____  __CJP___  __LE ___  DENY APPLICATION

	Carl W. S. Chun
    Director, Army Board for Correction 
	of Military Records

INDEX

CASE ID	AR20000050139	
SUFFIX		
RECON		
DATE BOARDED	20010329	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.