| Mr. Carl W. S. Chun | Director | |
| Ms. Joyce A. Wright | Analyst |
| Mr. John N. Slone | Chairperson | |
| Mr. Melvin H. Meyer | Member | |
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: In effect, reconsideration of his earlier request to have his case reviewed in accordance with Army Regulation 40-501; that he be given a Fitness for Duty Evaluation (FFDE); and reconsideration for promotion to lieutenant colonel (LTC/O-5).
APPLICANT STATES: In effect, that several regulations were not followed in disposing of his physical evaluation as cited by the medical treatment facility (MTF) commander. In support of his application, he submits a copy of a memorandum, dated 21 October 1997, Standard Form (SF) 88 Report of Medical Examination, dated 8 April 1997, and a DA Form 3349 (Physical Profile), dated 23 September 1997.
EVIDENCE OF RECORD: The applicant's military records show he was commissioned as a second lieutenant in the USAR on 3 March 1977, with prior military service.He was promoted to major (MAJ/0-4) effective 28 February 1991.The applicant's records contain a copy of a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 11 December 1994. His flagging actions shows that a flag was initiated effective 12 November 1994 for Army Physical Fitness Training (APFT) failure. His APFT is unavailable for review by this Board.
On 13 November 1995, AR-PERSCOM notified the applicant that he had completed the required years of service to be eligible for retired pay upon applicant’s age at 60 (20-Year Letter).
The applicant was administered an over 40 physical, SF 88, on 8 April 1997 and was issued a physical profile of 214121. He was found unqualified for retention in accordance with Army Regulation 40-501, paragraph 3-14(d). Item 74 (Summary of defects and diagnoses) indicated that he had avascular (not vascular [pertaining to or full of vessels]) and femoral head status/post hip disorder, was overweight, systolic (period of heart contraction) hypertension, and had corrected near vision.
On 23 September 1997, the applicant was issued a permanent physical profile of 214121 due to aseptic necrosis bilateral hips (increasing sclerosis [hardening of a part from inflammation] and cystic changes in the head of the femur [bone extending from the pelvis to the knee] which sometimes follow traumatic dislocation of the hip). He was allowed no physical activities. This profile was signed by a profiling officer who did not recommend the applicant for a medical evaluation board (MEB) or any form of physical disability processing prior to his discharge.
On 21 October 1997, the Commander of the 3345th United States Army Hospital Augmentation prepared a memorandum, subject: Physical Profile Evaluation. The Commander made reference to Army Regulations 40-501, 635-40, 135-175, 135-178, and 140-10. A review of the applicant's profile examination was conducted on 7 April 1997 that resulted in the findings that the applicant was found ineligible for retention under the provisions of Army Regulation 40-501, paragraph 3-14d(1). The disqualification was "severe pain, limitation of motion, and of function" from aseptic necrosis of both hips. The applicant was unable to walk long distances, march, and run or climb up and down. Soldiers who do not meet the fitness standards set by Army Regulation 40-401, chapter 3 are to be processed as prescribed in chapter 9 for members of the USAR. The applicant should be informed that he has the option of requesting a waiver for continuance in an Active Reserve status.
He was considered, but not selected for promotion to lieutenant colonel by the 1998 and 1999 Reserve Component Selection Board (RCSB) due to miscellaneous reasons.
He was honorably discharged from the USAR Control Group (Reinforcement) on
23 August 1999, under the provisions of Army Regulation 135-175.
The applicant's records contain a copy of a 7 December 2000, memorandum from the Director, ABCMR. This memorandum stated that reference was made to his DD Form 149, dated 6 May 2000, concerning his Suspension of Favorable Personnel Actions (FLAG) pertaining to his medical condition. For his information and edification, Army Regulation 600-8-2, FLAG, indicated, in pertinent part, that the reasons for initiating a flagging action were clearly defined and a "medical condition" was not included.
The Chief, Special Actions Branch, Office of Promotions, Reserve Components, US Total Army Personnel Command (PERSCOM) provided an advisory opinion. The opinion stated that the applicant was requesting that the memorandum, dated 21 October 1997 be disposed of, that he be granted an FFDE, and reconsidered for promotion to lieutenant colonel. A review of the applicant's records revealed that he was considered by the 1998 and 1999 RCSB but was not selected. The reasons for selection were usually unknown because statutory requirements prevent disclosure of board proceedings to anyone not a member of the board. His 1997 and 1998 promotion consideration files revealed that his officer evaluation reports (OERs) were not top blocks, some were reflecting APFTs, and his last OER dated May 1996 reflects not meeting the height and weight requirements. He had a total of three referred evaluation reports. There are no other documents reflecting in his file regarding any medical problems, nor does the promotion board see any medical or health record portions of his Official Military Personnel File (OMPF). No medical examination was located on his OMPF.
In order to be eligible for a special selection board (SSB), a material error document must have been missing from the applicant's OMPF. The applicant's record contained his highest military education diploma but did not contain any civilian education. This would give him a basis for an SSB. However, all promotion boards after 1 October 1996 are best qualified promotion boards; therefore, with the reports not reflecting top blocks warrant a slim chance of getting the applicant promoted. His OERs took on an extremely important role. The promotion board must consider not simply the rating, but it considers the duty performance and the proficiency with which those duties were performed. The OER is a critical tool for the consideration of duty performance and for judging an officer's future potential for increased responsibility through promotion to the next higher rank. PERSCOM recommended denial of the applicant's case based on the above facts.
The applicant was provided a copy of this opinion for possible comment prior to consideration of his case.
In his rebuttal, he stated that each evaluation report cited that there was no poor performance write-up; however, he did not pass his APFT. He also stated that there was no consideration given to him for his physical limitations in accordance with the medical opinion rendered by the 3345th medical staff as referenced in the memorandum dated 21 October 1997.
The applicant’s records contain a copy of his Chronological Statement of Retirement Points which shows that he had completed 21 years of qualifying service for retirement purposes.
Army Regulation 600-802 (Suspension of Favorable Personnel Actions/Flags) prescribes policies, operating task, and steps governing the suspension of favorable personnel actions as a function. It applies to Active Army, the Army National Guard, and the USAR. It states that flags will be submitted when an unfavorable action or investigation (formal or informal) is started against a soldier by military or civilian authorities. Flags are considered into two categories, non-transferable and transferable, depending upon their specific action or investigation. It states, in pertinent part, that failure to pass an APFT, failure to take the APFT within the required period, or entry into the weight control program were reasons for initiating a flag and were transferable.
Army Regulation 40-501 provides policy on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 lists the various medical conditions and physical defects that may render a soldier unfit for further military service. Paragraph 3-14d states that a miscellaneous condition of the extremities such as avascular necrosis of the bone when severe enough to prevent successful performance of duty is a cause for referral to an MEB.
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 that 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. The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.
Paragraph 7-6 of the same regulation states that commanders of Army MTFs are authorized to designate one or more physicians, dentists, optometrists, podiatrist, audiologist, nurse practitioners, and physicians assistants as profiling officers. Physicians have no limitations. Changing from or to a permanent numerical designator of “3” or “4” requires a physical profile board (PPBD).
Paragraph 7-8f of the same regulation states the physical profiles for Reservist not on active duty may be accomplished by the Army Reserve Personnel Command (AR-PERSCOM) staff surgeons, medical corps commander of USAR hospitals, or the Surgeon, AR-PERSCOM without a physical profile board (PPBD).
Paragraph 7-11 states that the DA Form 3349 will be used to record both permanent profiles and temporary profiles. Permanent “3” and “2” profiles requiring major assignment limitations(s) require signatures of a minimum of two profiling officers. In exceptional cases, as required, a third officer will also sign.
The approval authority will be designated by the MTF commander and the approval authority for permanent “3” or “4” profiles must be a physician and is usually the Deputy Commander for Clinical Services (DCCS).
Paragraph 9-13 of the same regulation pertains to disposition of medically unfit Reservists. It states that reservist who normally do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140-10 or discharged from the USAR per Army Regulation 135-175 or 135-178. Reservist will be transferred to the Retired Reserve only if eligible and if they apply. Reservist who were found unfit may request continuance in an active USAR status. Such cases, physical disability incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Request for continuance will include: (1) A report of examination of the scope prescribed by chapter 8; (2) A summary of the Reservist's experience and qualifications; and (3) An evaluation by their unit commander of their potential value to the military service. Request will be forwarded to the Commanding General, AR-PERSCOM who will consider each request and determine of the Reservist's experience and qualifications are needed. The Surgeon General who will make the final determination will review each request.
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 Active Army, the Army National Guard, and the USAR.
Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reasons other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties 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.
Paragraph 8-7 pertains to continuance in an Active Reserve status. A Reserve Component soldier may request continuance in the Active Reserve under Army Regulation 40-501. Upon completion of disability processing, the United States Army Physical Disability Agency (USAPDA) will forward the case file to the appropriate approving authority. For continuance as a Reserve Component under this chapter, a soldier must be: (1) Found unfit by a Physical Evaluation Board (PEB) because of a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of AWOL; (2) Capable of maintaining oneself in a normal military environment without adversely effecting one's health and the health of others; (3) Physically capable of performing useful duty in a military occupational specialty (MOS) for which currently qualified of potentially trainable; and (4) Capable of performing useful, military service without undue loss of time from duty for medical treatment.
Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. The regulation provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to captain through lieutenant colonel. The regulation provides that in order to be qualified for promotion to major an individual must have completed Combined Arms Services Staff School (CAS3), 7 years of time in grade (TIG) as a captain, and an officer advanced course (OAC) on or before the convening date of the respective promotion board. There are no waiver provisions provided in the regulation.
In pertinent part, Army Regulation 135-155 states that an officer who twice fails to be selected for promotion to captain, major, or lieutenant colonel will not again be considered for promotion and will be removed from an active status.
Army Regulation 135-175 provides policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days. Paragraph 4-4 pertains to the removal from an active status. It states, in pertinent part, that officers in the grade of first lieutenant, captain, or major who completed their statutory military obligation, will be discharged for failure to be selected for promotion after second consideration by a DA Reserve Components Selection Board.
Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.
Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major,
or lieutenant colonel.
Paragraph 7-8 of the same regulation pertains to miscellaneous reasons for removal. It states that soldiers when found medically unfit for retention will be removed from an active status unless a waiver is granted in accordance with Army Regulation 40-501.
Paragraph 8-2c, defines temporary medical disqualification as soldiers temporarily disqualified from Ready Reserve participation because of prolonged illness or medical defects remedial within 6 months to 1 year and refers to
AR 135-91, chapter 5, section V. Army Regulation 135-91 states that a soldier is temporarily medically disqualified when documentary evidence supports a finding
of a medical defect or prolonged illness, which can be corrected in less than
1-year. Soldiers who allege temporary medical disqualification will be required to submit documentary evidence prepared by their health care specialist. Those who fail to produce the evidence within 30 days will be considered medically qualified and required to continue participating. When medical disqualifications can be corrected within less than 6 months, the soldier will be retained in the unit. Excused absence from unit training will be granted. When medical disqualifications can be corrected within 6 months to 1 year, transfer the soldier to the Standby Reserve (active list). When medical disqualifications cannot be corrected within 1 year, the soldier will be discharged or transferred to the Retired Reserve if eligible.
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(s), it is concluded:
1. The evidence of record shows that the applicant was flagged for APFT failure that was transferable. However, his records failed to show that he was flagged for a medical condition or to show that his flag was transferred prior to his separation from service.
2. The applicant was administered an over 40 physical examination and was issued a physical profile of 214121. He was found unqualified for retention in accordance with Army Regulation 40-501, paragraph 3-14d. The disposition of his medical unfitness was proper in accordance with the procedures of paragraph 9-13.
3. The applicant was later issued a permanent physical profile on 23 September 1997 due to aseptic necrosis bilateral hips and was allowed no physical activities. At the same time, competent medical authorities did not recommend the applicant for an MEB or any form of physical disability processing.
4. On 21 October 1997, the 3345th Hospital Commander made reference to several regulations regarding the applicant's status. The commander indicated that the applicant's profile examination found him unfit for retention. He also indicated that reservists who do not meet fitness standards in accordance with Army Regulation 40-501 would be transferred to the Retired Reserve, if they apply, or discharged. The commander informed the applicant that he had the option of requesting continuance in an Active Reserve status. However, there is no evidence of record to show that the applicant submitted a request for a waiver through channels for approval.
5. The applicant was properly considered for promotion by the 1997 and 1998 RCSB’s and was not selected for promotion. He was subsequently discharged based on his nonselections.
6. In summary, the Board notes that the applicant was flagged for APFT failure, not a medical condition, was not entitled to an FFDE because he was found unfit for retention, and was subsequently discharged based on his nonselection for promotion.
7. 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.
8. 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____ __MHM__ _JTM___ DENY APPLICATION
| CASE ID | AR2002075297 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030325 |
| TYPE OF DISCHARGE | HD |
| DATE OF DISCHARGE | 19990823 |
| DISCHARGE AUTHORITY | AR 140-10 |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 192 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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