PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE:
         DOCKET NUMBER: AC


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

Mr. Loren G. Harrell		Director
M .		Analyst

The following members, a quorum, were present:

Mr.		Chairperson
Mr.		Member
Mr.		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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APPLICANT REQUESTS: That his Physical Evaluation Board (PEB) finding of “considered fit for service” be corrected to read “unfit for service, 30 percent or greater disability.”

APPLICANT STATES: That the PEB unfairly applied the presumption of fitness rule to a reserve officer when this rule should not and does not apply. This “presumption of fitness” rule should not apply to any retiring “gray area retiree” who will not see any retirement income until age 60. The board claimed it was impending retirement that ended the claimant’s military career and not the injury. This is false, because he could have become a warrant officer and remained in the service to age 60. This had been approved and he was waiting an age waiver and physical to do so. He could have received a Title 32 appointment and remain in the reserves until age 60. Several openings had been applied for. Or, he could have resigned his commission and reverted to his enlisted grade.

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

He was born on 7 March 1943. He enlisted in the Army National Guard of Georgia on 6 June 1964. His basic branch was 12A (Armor) but from March 1984 until his separation he worked primarily as an administrative officer/adjutant or computer systems analyst.

He was ordered to active duty in the Active Guard/Reserve (AGR) as a Major on 27 May 1986. His Officer Evaluation Report (OER) ending 31 May 1994 shows he passed the Army Physical Fitness Test (APFT) in April 1994; his OER ending 19 February 1995 shows he passed the APFT in October 1994 and he performed all duties in an outstanding manner.

He was released from his AGR tour on 19 February 1995.

He was promoted to lieutenant colonel on 20 February 1995.

He reentered active duty 21 February 1995 on an active duty/special works (ADSW) tour.

On 23 July 1995, the applicant injured his right knee in a fall at home. It was determined to be in line of duty.

His retirement OER ending 19 August 1995 has no APFT or profile entry but does rate him as “1” in the blocks “maintains appropriate level of physical fitness” and “performs under physical and mental stress” and the raters make comments about an outstanding performance by a dynamic and energetic officer.
Evidence in the records show the applicant’s mandatory removal date was 20 August 1995 for completing 28 years of commissioned service.

The applicant was retained in an active status pending his medical processing.

On 21 February 1996, the applicant completed a Report of Medical History wherein he states “I am in poor health.”

On 13 September 1996, a Medical Evaluation Board diagnosed the applicant with bilateral knee degenerative joint disease, left knee, onset 1982 and in the right knee, onset 1995; low back pain with age appropriate spondylosis and degenerative disc disease, onset 1988; major depression, onset 1995; and bilateral hearing loss, mild.

An informal PEB held on 17 October 1996 found the applicant physically unfit by reason of bilateral knee pain and low back pain with spondylosis and degenerative disc disease at a rating of 10 percent and for major depression, mild, at a rating of 10 percent. The board recommended his separation with severance pay. This board failed to consider the presumption of fitness rule.

The applicant noncurred with the findings and requested a formal PEB.

A formal PEB held on 14 November 1996 found the applicant fit for duty by presumption.

The applicant rebutted this finding. He submitted evidence to show he had injured his left knee in 1982, again in 1987 and had pain due to injuries in his knee and back from 1988 to 1992. He states the preponderance of evidence shows he is permanently disabled. He further states that the initial injury to his back and left leg would have been sufficient for a release from active duty in 1992 if he had not presented a valid argument that he could continue serving in the military even though injured and it is probable that a PEB would have found at least a 20 percent disability at that time. He also requested consideration of a technical point. Since his MRD had been extended past 20 August 1995, technically, he had not yet reached is MRD.

On 9 January 1997, the Physical Disability Branch, U. S. Total Army Personnel Command, approved the PEB findings that he was physically fit for active military service.

On 5 February 1997, the applicant was transferred to the U. S. Army Reserve Control Group (Retired).
In the processing of this case, two advisory opinions were obtained (SEE
ATTACHED).

The applicant rebutted both opinions. He stated he was never “fit for service.” He was totally unable to work for a period of two years. It was proven that his military career was not ending, he was set to continue as a warrant officer in his occupational specialty (computers) for many years until retirement at age 60. This continuation of his career was documented and was only cut short because of his inability to meet the physical requirements.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. It applies to the Active Army, the Army National Guard and the U.S. Army Reserve. In pertinent part, it states 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. When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that a soldier is fit. This “presumption of fitness’ rule will be applied to soldiers who enter the physical disability evaluation system and are within 9 months of mandatory retirement for age, service in grade and/or years of service. Application of the rule does not mandate a finding of fit. The presumption is rebuttable and is overcome when the preponderance of evidence establishes the soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

DISCUSSION:

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

2. The applicant claims he was totally unable to work for a period of two years and that he could have received at least a 20 percent disability rating in 1992 based upon earlier injuries to his knee and back.

3. His earlier injuries did not make the applicant unfit for duty. He was promoted to lieutenant colonel on 20 February 1995. His OERs in 1994 and 1995 showed he passed the APFT and he performed all his duties in an outstanding manner. He felt sufficiently fit for duty to apply to become a warrant officer and remain in the service until age 60 or to apply for a Title 32 appointment and continue his career.

4. The applicant’s retirement OER, ending date 19 August 1995 (a month after his last knee injury) rated him as “1” (“1” being to the highest degree) in maintaining appropriate level of physical fitness and performing under physical and mental stress. Rater comments stated he was a dynamic and energetic officer.

5. The applicant’s mandatory release date was 20 August 1995. An extension of this date does not change the MRD, it only changes the execution of it.

6. The applicant’s injury that resulted in his PEB occurred on 23 July 1995, well within 9 months of his MRD. The “presumption of fitness” rule applies unless the preponderance of evidence shows he was physically unable to perform adequately the duties of his office, grade or rank. The evidence shows he was able to perform his duties in an outstanding manner up until the date of his MRD.

7. Army Regulation 635-40 clearly states it applies to the Army National Guard.

8. In view of the foregoing, there appears to be 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

________ ________ ________ DENY APPLICATION




                  Loren G. Harrell
                  Director