IN THE CASE OF: BOARD DATE: 3 December 2015 DOCKET NUMBER: AR20150007205 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 military records to reflect he was discharged due to a diagnosis of type I diabetes in lieu of type II diabetes. 2. The applicant states he had type I diabetes but was discharged based on a diagnosis of type II diabetes. 3. The applicant provides copies of his Department of Veterans Affairs (VA) medical records. 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 16 September 2003. 3. On 13 November 2007, he underwent a medical evaluation board (MEB). The ensuing physical examination, laboratory reports, and x-ray data resulted in a final diagnosis of diabetes mellitus, insulin-requiring. The MEB determined his prognosis was good, but given that he was a tanker in an infantry unit, requiring frequent finger sticks, blood sugar checks, and insulin, he would not be able to function in his military occupational specialty or be a functional active duty Soldier. 4. His DA Form 3947 (MEB Proceedings) shows the MEB recommended his medical separation from the Army under the guidelines established by Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-11(d), and referred him to a physical evaluation board (PEB). He agreed with the MEB findings and recommendation on 30 November 2007. 5. On 20 December 2007, the PEB found him physically unfit due to diabetes mellitus, insulin-requiring, requiring a restricted diet, in accordance with VA Schedule for Rating Disabilities (VASRD) code 7913; recommended a combined disability rating of 20 percent; and recommended his separation with severance pay. The PEB found that frequent blood sugar checks and daily insulin injections would interfere with his ability to perform the duties of his military occupational specialty. Additionally, the physical demands of his duty may adversely impact disease control. It found no evidence that the Soldier's clinical condition required regulation of activities. The applicant concurred with the PEB findings and recommendation on 17 December 2007 and waived a formal hearing of his case. 6. The U.S. Army Physical Disability Agency informed the applicant by letter, dated 2 March 2009, that as a result of the National Defense Authorization Act of 2008, certain conditions were to be rated using different rating criteria than used prior to the passage of the law. As a result, his PEB proceedings were reviewed again based on this new criteria. After the review, the determination that he was found physically unfit due to his diagnosis of diabetes mellitus, insulin-requiring, requiring a restricted diet, remained the same, as did his recommended disability percentage of 20 percent. On 26 March 2008, the PEB findings were approved by the U.S. Army Physical Disability Agency. 7. On 26 March 2008, he was honorably discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his narrative reason for separation as physical disability with severance pay. He was credited with 4 years, 6 months, and 11 days of net active service. 8. The applicant provided copies of his VA medical records which include numerous progress notes and laboratory reports. These forms all postdate his MEB and PEB. Among these medical records are the following documents: a. Problem Lists which contain a note entered on 15 September 2010, listing diabetes with neurological manifestations, type II or unspecified type, not stated as uncontrolled as one of the applicant's problems; and b. Progress Notes and Primary Care Notes, dated 18 January 2012, 5 February 2013, 30 May 2013, and 23 September 2014, stating the applicant has history of diabetes type I 9. A VA Rating Decision was not included in these records, thus it is unclear whether he has filed a disability claim with the VA. 10. An advisory opinion was obtained from the U.S. Army Physical Disability Agency, dated 29 September 2015. The agency legal advisor stated: a. The applicant requested correction of his military records because he was discharged with type II diabetes when he had type I diabetes. He does not explain how this change would affect any of his military benefits or the results of his disability separation from the military. b. His MEB listed his one condition as diabetes mellitus, insulin-requiring. The applicant concurred with the MEB findings. Neither the MEB nor the narrative summary designated the diabetes as either type I or type II. c. On 6 December 2007, the PEB found him unfit for the above listed diagnosis and awarded a disability rating of 20 percent in accordance with VASRD code 7913 for diabetes mellitus and recommended his separation with severance pay. Diabetes is rated the same whether it is diagnosed as type I or type II. On 17 December 2007, he concurred with the PEB findings and waived his right to a formal hearing. d. VA medical records in March 2011 reflected that his condition was considered to be type II diabetes or unspecified type at that time. By 2014, the VA had clarified the diagnosis to type I. e. The applicant did not provide any evidence to support his contention that the MEB diagnosis in 2007 was incorrect. Even if his diabetes had been diagnosed as type I in 2007, it is irrelevant to his disability separation rating and disposition. f. The U.S. Army Physical Disability Agency recommended no change to the applicant's records. 11. The applicant was provided a copy of the advisory opinion on 13 October 2015 and an opportunity to respond, but failed to provide a response. 12. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. 13. The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 14. VASRD code 7913 applies to the diagnosis of diabetes mellitus. According to the VASRD, a 20-percent rating for code 7913 requires insulin intake and a restricted diet, or a oral hypoglycemic agent and a restricted diet. A diagnosis of diabetes mellitus with a 10-percent rating results when the illness is manageable by restricted diet alone and a 40-percent rating would require the use of insulin, a restricted diet, and regulation of activities. 15. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 or her office, grade, rank, or rating. 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. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 16. 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 of less than 30 percent. 17. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the Physical Disability Evaluation System and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. 18. 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 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 VA does not have the 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. These two government agencies operate under different policies. 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 records to show he was discharged due to a diagnosis of type I diabetes in lieu of type II diabetes was carefully considered. 2. Records indicate he was properly discharged from the Army under the provisions of Army Regulation 635-40, chapter 4, after referral to an MEB and subsequent PEB which found he did not meet medical retention standards for the unfitting condition of diabetes mellitus. Neither his MEB nor his PEB documentation specified his diagnosed diabetes as either type I or type II. 3. The applicant provided no evidence to corroborate his contention that his diagnosis at the time of his MEB or PEB was incorrect. The disability percentage awarded by the PEB is consistent with the rating guidelines within the VASRD for his diagnoses of diabetes mellitus, which does not specify type I or type II. Additionally, his disability percentage and VASRD code would remain consistent with what his records currently reflect even if his diagnosis were altered to specify type I verses type II diabetes. 4. It is unclear whether the VA granted him a service-connected disability rating for his diabetes mellitus. VA medical records do indicate he received diagnoses of diabetes type I and type II and treatment for these diagnoses from VA medical practitioners. The fact that the VA diagnosed him with type I diabetes after his discharge from active duty does not prove an error on the part of the Army at the time of his discharge. A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" or a particular medical diagnosis from the Army. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting diagnoses and the percentage of disability based upon that agency's examinations and findings. 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 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) AR20150007205 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007205 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1