MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 February 2002
         DOCKET NUMBER: AR2001062569

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret K. Patterson		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)

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APPLICANT REQUESTS: In effect, that his records be corrected to show he was separated for disability.

APPLICANT STATES: That he was never afforded the opportunity to be reclassified to another military occupational specialty (MOS) under Medical Retention Standards or referred to a medical evaluation board (MEB) as a prerequisite to a physical evaluation board (PEB). He injured his back in 1978 while on active duty. He was examined on 25 March 1980, found that he qualified for a medical board, and given an L-3 permanent profile. However, the Army did not follow through with the recommendation for an MEB. The Department of Veterans Affairs (VA) initially granted him a 10 percent disability rating retroactive to 1981 but took it away in March 1984. Had he been properly rated, he would have been awarded a minimum of 20 percent. He was later, however, found to be medically unfit to fulfill the requirements of his MOS and separated from the U. S. Army Reserve (USAR) on 18 June 1999. He had requested a Fitness for Duty Evaluation and a PEB. He was sent to Madigan Army Hospital for a physical but discovered that the doctor there did not have his complete service medical records. Since January 1999, he has been rated as 100 percent disabled by the Social Security Administration (SSA). Marked pain best characterizes the condition that he has been living with for many years. He learned to live this way for many years after he left active duty and while in the USAR because of his fear of losing his career as it was and will always be something that he will cherish for the rest of his life. Supporting evidence is as listed on the DD Form 149.

COUNSEL CONTENDS: Counsel makes no additional contention.

EVIDENCE OF RECORD: The applicant's prior enlisted service military records show:

He enlisted in the Regular Army on 12 July 1977 for 3 years. He completed basic training and advanced individual training and was awarded MOS 05C (Radio Teletype Operator). He attended but did not complete basic airborne training apparently due to a back injury incurred during a jump. Orders 159-4, Headquarters, U. S. Army Western Command, Fort Shafter, HI dated 3 October 1979 withdrew MOS 05C and awarded him MOS 72E (Telecommunications Center Operator) for being physically unable to perform the required duties of MOS 05C.

A Report of Medical Examination, SF 88, dated 25 March 1980 indicates the purpose of the examination was for a medical board. Item 74 indicated the applicant was diagnosed with intervertebral disc syndrome and fracture of the

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right clavicle. He was found qualified for a medical board. On 16 May 1980, the applicant volunteered to remain on active duty for the purpose of completing hospital care and/or physical disability evaluation. On this date, the Patient Administration Division requested the applicant’s extension for an indefinite period of time and indicated that an MEB had been initiated and been forwarded to the PEB for final determination. The MEB action is not available. The PEB action is not available but apparently it determined he was fit for duty based upon the presumption of fitness rule.

On 11 August 1980, the applicant opted not to undergo a separation medical examination. On this date he was released from active duty and transferred to the USAR Control Group (Reinforcement).

Effective 30 December 1982, the applicant reenlisted in the USAR. Except for a few documents (three Officer Evaluation Reports (OERs) plus a referral letter with rebuttal, two nonselection letters, and a Certificate of Clearance and/or Security Determination, DA Form 873), his USAR records are unavailable.

On 10 December 1981, the VA awarded the applicant a 10 percent disability rating for back strain and a 0 percent rating for right shoulder condition.

In November 1983, the VA reduced the applicant’s 10 percent disability rating for lumbosacral strain to a noncompensable evaluation.

On 16 January 1984, the VA received the applicant’s Notice of Disagreement.

On 26 March 1984, the applicant indicated his intentions to apply for warrant officer appointment.

On 13 April 1984, the applicant appealed the VA’s decision to reduce his rating. He stated that he wanted a 30 percent rating for his collarbone and lower back.

On 27 June 1985, the applicant was appointed a warrant officer in the USAR. His warrant officer appointment physical is not available.

The applicant received a relief from active duty for training (REFRADT) OER for the period 16 through 27 September 1991 as a Morse Intercept Technician. It does not indicate he had a physical profile. It shows he passed his physical fitness test in May 1991 and always exceeded the requirements of his duties.

The applicant was on active duty from 1 June 1992 through 16 February 1993. His REFRADT OER for the period 30 May through 31 August 1992 as a Counterintelligence Technician does not indicate he had a physical profile. It

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shows he passed his physical fitness test in February 1992 and always exceeded the requirements of his duties. His REFRADT OER for the period 1 September 1992 through 16 February 1993 as a Counterintelligence Technician does not indicate he had a physical profile. It shows he passed his physical fitness test in February 1993 and always exceeded the requirements of his duties. (The senior rater disagreed with the rater’s narrative but it had nothing to do with the applicant’s physical ability to perform his duties.)

The applicant’s last qualifying year for retirement was retirement year ending date 29 December 1993.

The applicant was notified by letter dated 24 June 1996 that he had been considered for but not selected for promotion.

On 30 May 1997, the applicant was at a local grocery store when he slipped on a wet floor and fell. The initial medical assessment was that he had a head contusion without loss of consciousness; neuromuscular cephalgia; left hip contusion; left elbow contusion; and cervical, thoracic, and lumbar strain.

The applicant was notified by letter dated 15 September 1997 that he had twice been non-selected for promotion and would have to be discharged unless he was eligible for and requested transfer to the Retired Reserve.

By memorandum dated 16 June 1998, the U. S. Army Reserve Personnel Command (AR-PERSCOM) notified the applicant that he was physically disqualified for further retention in the Active Reserve and/or entry on active duty. He elected to undergo a Fitness for Duty Evaluation and, if he did not meet the medical standards for retention, he requested a PEB.

Orders dated 13 January 1999 authorized the applicant to perform inactive duty training without pay for the purpose of taking a medical evaluation at Madigan Army Medical Center on 28 January 1999. At this time he was diagnosed with pain syndrome; status post 2 level diskectomy and fusion; cervical degenerative joint disease; positive diskogram L5-S1; questionable postconcussional syndrome; posterior vitreous detachment; mood disorder; and, except for decreased range of motion in the neck and subjective complaints of numbness and pain, a neurological examination that was within normal limits overall. In the doctor’s opinion, the applicant was not able to fulfill the requirements of his MOS.

Apparently, in January 1999 the Social Security Administration (SSA) found the applicant 100 percent disabled due to back problems.

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Orders D-06-943644, AR-PERSCOM, dated 21 June 1999 discharged the applicant from the USAR effective 18 June 1999. The orders do not indicate the reason for his discharge. He had completed 7 years of qualifying service for a nonregular retirement.

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 states 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 soldier reasonably may be expected to perform because of his or her office, grade, or rank. 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. At the time of the applicant’s release from active duty in 1980, it stated that when a soldier was 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 was scheduled for separation or retirement, creates a presumption that a soldier was fit. Application of the rule did not mandate a finding of fit. The presumption was rebuttable and was overcome when the preponderance of evidence established the soldier was physically unable to perform adequately the duties of his or her office, grade or rank. Currently, under the laws governing the Army Physical Disability Evaluation system soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must have been incurred or aggravated while the soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

Department of Defense Instruction 1332.38, Physical Disability Evaluation, dated 14 November 1996 defines nonduty related impairments as impairments of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation. Members with nonduty related impairments are eligible to be referred to the PEB for solely a fitness determination but not a determination of eligibility for disability benefits. Paragraph E3.P1.3 states that the physical disability evaluation element of the Disability Evaluation System shall determine the fitness of service members with medical impairments to perform their military duties and, for members determined unfit for duty-related impairments, their entitlement to benefits. Paragraph E3.P1.3.3 states that eligible service members shall be provided a
minimum of one opportunity for a formal PEB to fulfill the requirement for a full and fair hearing when requested by a service member being separated or retired for physical disability. Paragraph E3.P1.3.4.2 states that for members of the Ready Reserve referred for nonduty-related conditions the record of PEB proceeding shall document only the fitness determination.

The U. S. Army Physical Disability Agency (USAPDA) Policy/Guidance memorandum #4, Processing Reserve Component (RC) Nonduty Related Cases, reissued procedures for the processing of RC nonduty related cases originally implemented effective 7 July 1998. The Counseling Guide for RC Members with Nonduty Related Conditions who Request a PEB states that RC members should only request referral to the PEB if they believe they can perform their duties despite their medical condition. As a nonduty related case, only the issue of fitness is adjudicated by the PEB.

Title 38, U. S. 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.

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. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The Board notes the applicant’s argument that the back injury he sustained in 1978 caused him pain from then on. The Board notes that an MEB was initiated in March 1980, four months prior to his normal expiration term of service. Unfortunately, regulatory guidelines at the time provided that when a soldier was being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the soldier was scheduled for separation created a presumption that a soldier was fit. The presumption was rebuttable and could be overcome when the preponderance of evidence established the soldier was physically unable to perform adequately the duties of his grade or rank. It appears that a PEB may have determined that, in the applicant’s case, the presumption of fitness rule was not overcome.

3. Given the applicant’s later record of military service, it appears the presumption of fitness rule was properly applied. The applicant was released from active duty on 11 August 1980. Although the VA awarded him a 10 percent disability rating in December 1981, he felt sufficiently fit to reenlist in the USAR effective 30 December 1982. He filed a Notice of Disagreement in January 1984 after the VA reduced his disability rating to zero percent, stating he should actually have been rated at 30 percent. However, in March 1984 he felt sufficiently fit to indicate his intentions to apply for warrant officer appointment. In June 1985 he was in fact appointed a warrant officer in the USAR. He received an OER for the period 16 through 27 September 1991 which did not indicate he had a physical profile and showed he always exceeded the requirements of his duties. He was on active duty from 1 June 1992 through 16 February 1993 and the two OERs he received during this period did not indicate he had a physical profile and both showed he always exceeded the requirements of his duties.

4. After retirement year ending date 29 December 1993, the applicant did not perform any active or inactive duty. He suffered a nonduty related injury in May 1997 (slipping on a wet floor) which evidently aggravated his previous back injury. However, the fact of the matter is that the evidence of record shows his previous back injury did not prevent him from performing his duties and his OERs even show he exceeded the requirements of his duties. After September 1997, he was due to be discharged as a result of his twice being nonselected for promotion. It appears he was retained in order to be medically evaluated. In accordance with instructions contained in Department of Defense Instructions 1332.38, in June 1998 he requested a Fitness for Duty Evaluation and, if found to not meet the medical standards for retention he requested a PEB. (In July 1998, the USAPDA implemented procedures whereby Reserve Component members were to request a PEB only if they believe they can perform their duties despite their medical condition, more accurately reflecting the fact that a PEB cannot award disability benefits for a nonduty-related condition.) The examining physician noted that the applicant was, in the physician’s opinion, unable to fulfill the requirements of his MOS. The applicant was not eligible for reclassification since he was required to be discharged for being twice nonselected for promotion. It does not appear that he was evaluated by a PEB but this would reflect the new guidance for processing nonduty-related cases. Although his discharge orders do not indicate the reason for his discharge, it appears that he was not given a medical discharge and the evidence shows that a medical discharge would not have been appropriate.

5. Any rating action by the VA or the SSA does not necessarily demonstrate an error or injustice on the part of the Army. The VA and the SSA operate under their own policies and regulations and assign disability ratings as they see fit. Neither the VA nor the SSA is required by law to determine medical unfitness for further military service in awarding a disability rating.

6. 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

__fne___ __mkp___ __le____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062569
SUFFIX
RECON
DATE BOARDED	20020207
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.