MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 August 2003
         DOCKET NUMBER: AR2002083011

         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. Raymond J. Wagner		Chairperson
Mr. Robert L. Duecaster		Member
Ms. Marla J. Troup		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: Physical disability retirement. He also requests promotion to sergeant first class (E-7) and back pay for 5 years.

APPLICANT STATES: In effect, that the presumption of fitness rule (PFR) was improperly applied. He had been injured, sick and unable to perform in assigned duties long before he reached the 12-month presumption window. The retention control point (RCP) caused his mandatory retirement. He was placed on medical hold on 14 September 2000 but did not enter the disability evaluation system until 10 September 2002. He contends, in effect, that his physical problems precluded his promotion. If he had been fit for duty, then he would have been promoted. If he is to be considered fit for duty at separation, then he should be promoted and authorized back pay.

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

The applicant enlisted in the Regular Army and entered active duty on 16 February 1982. He served on continuous active duty and was promoted to staff sergeant (E-6) on 8 February 1987.

He had shoulder surgery and a hernia repair in 1998 but continued to have groin pain. He was placed on an L-3 physical profile on 2 April 1999, and had follow-up exploratory surgery in September 1999, but continued to have recurrences of groin pain.

On a Noncommissioned Officer Evaluation Report (NCOER) for the period ending March 2000 the applicant's rater marked him as excellent or successful in all areas of Part IV, Values/NCO Responsibilities and noted that he had passed the Army Physical Fitness Test in October 1999. His senior rater ranked him in the first block and recommended immediate promotion. He underwent surgery again in November 2000.

The applicant reached the retention control point for his pay grade on 16 February 2001. On 26 February 2001 he sought evaluation by the Asthma Clinic at Fort Campbell, Kentucky. On 5 March 2001 he sought medical attention for shoulder pain. He was placed on a permanent P-3, L-3 physical profile on 31 March 2001.

His medical problems continued and he was apparently having trouble remembering things, which resulted on 16 August 2001 a neuropsychological evaluation. Following numerous tests the Chief of Neuropsychology Services wrote, "Given the level of his memory deficits on testing, he would have difficulty performing at any level in the Army, even the most rudimentary occupations."

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The psychologist opined that the applicant was not world-wide deployable and should be referred to a medical evaluation board (MEB) before he retired. He recorded a clinical diagnosis of amnestic disorder due to a medical physical condition and physical diagnoses of Lymes disease, asthma, and degenerative joint disease (per patient report).

A medical examination was conducted on 1 March 2002 for MEB and retirement purposes.

His 12 September 2002 MEB produced the following medical findings:
        
1. Central nervous system (CNS) Lyme disease amnestic disorder and CNS component – medically unacceptable.
2. Axis I: dementia due to a physical condition and major depressive disorder– medically unacceptable.
         3. Right Plantar fascitis, chronic r– medically unacceptable.
         4. Right acromioclavicular joint pain– medically unacceptable.
         5. Sesamoiditis – medically unacceptable.
         6. Left Groin pain – medically unacceptable.
         7. Asthma, intermittent, mild– medically unacceptable.
         8. Right middle finger fracture , slight joint pain– medically acceptable.
         9. Degenerative joint disease – medically acceptable.
10. Obsessive compulsive personality traits – medically acceptable.
11. Gastroesophageal reflux disease – medically acceptable.
12. Polycythemia – medically acceptable.
13. Migraine headaches – medically acceptable.

The applicant concurred with the MEB findings and the recommendation that his case be referred to a PEB. The PEB sent the case back to the medical facility for a more complete mental health evaluation and the applicant's medical records.

On 14 November 2002, a PEB found that the applicant's case did not overcome the presumption of fitness rule (PFR). The applicant non-concurred and submitted an appeal, which resulted in no change in the PEB finding.

The U.S. Army Physical Disability Agency (USAPDA) reviewed and approved the case on 27 November 2002.

During the processing of this case an advisory opinion was obtained from the USAPDA. The agency noted that, the applicant's presumptive period had started on 16 February 2001, 12 months prior to his RCP and mandatory retirement. The Agency also noted that the governing regulations Army Regulation 635-40 and Department of Defense

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Instruction 1332.28 require that the applicant not [emphasis added] be granted disability benefits unless the PFR is overcome. The USAPDA further noted that the presumption could be overcome by showing that there was a chronic condition that precluded the applicant from performing his assigned duties prior to 1 February 2001, that a grave (sudden and life threatening) condition occurred during the presumptive period or that a serious deterioration of a previously diagnosed condition occurred during the presumptive period.

The USAPDA examined the applicant's contention that he was unable to perform his duty but noted that his records show this was not the case. Furthermore, the hernia repair was the sixth condition in order of severity and that was mostly troublesome during treatment and recovery periods. The Lyme disease was the most debilitating condition, yet that was not diagnosed until well into the presumptive period. It had not shortened his career. The USAPDA accepts that the applicant had medical problems of long standing nature but points out that they did not shorten his career. The Agency recommended that the applicant's records not be changed as requested.
The advisory opinion was provided to the applicant for possible rebuttal or comment. He responded by stating that, although the Lyme disease was diagnosed after the RCP, it had been contracted earlier and was adversely affecting his health and should have been identified. He contends that Lyme disease should have been added to his PEB as an addendum. Furthermore he maintains that he was already unable to perform his duties because of the hernia. He cites the physical requirement for his military occupational specialty. He contends that he should have been rated at 10 percent for at least five medically unacceptable conditions and that the Lyme Disease should have been added as an addendum and rated at 20 percent.
Army Regulation 40-501, chapter 7, physical profiling, explains 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.
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. It states that the mere presence of 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 a lack of special skills in demand does not, in itself, establish eligibility for disability separation or retirement. Although the ability of a soldier to reasonably perform his duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness. 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. 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.

Department of Defense Instruction 1332.38, paragraph E3.P3.5 states that the “Presumption of Fitness” rule will be applied to a soldier who enters the physical disability evaluation system and his request for voluntary retirement has been approved; when an officer has been approved for Selective Early Retirement; when an officer is within 12 months of mandatory retirement due to age or length
of service; or when an enlisted member is within 12 months of their retention control point (RCP) or expiration of active obligated service (EAOS) but will be eligible for retirement at that RCP/EAOS.

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Army Regulation 601-280, Army Retention Program, provides, in paragraph 3.8g, that a soldier may not exceed the retention control points as shown below, by more than 29 days before expiration of contracted service (reenlistment or extension). Table 3-1 shows that the retention control point for a staff sergeant is 20 years.
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, it is concluded:

1. Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite impairment would be considered presumptive evidence of physical fitness.

2. Because of the RCP the applicant was originally scheduled for retirement on 15 February 2002. By regulation, the Presumption of Fitness rule had to be applied when the individual was within 12 months of mandatory retirement due to age or length of service.

3. Although the applicant had been diagnosed with several conditions long before the presumptive period began there is no available evidence that he was not, in fact, performing his assigned duties.

4. The Board is empathetic with the applicant’s medical problems; however, the evidence shows that he did not overcome the Presumption of Fitness rule.

5. Physical disability retirement is intended to compensate those whose careers are interrupted by health problems. This did not occur in the applicant's case.

6. There is no available evidence to show that the applicant should be promoted to pay grade E-7 and authorized back pay.

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

__ RJW_ ___RLD _ __MJT __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002083011
SUFFIX
RECON
DATE BOARDED	20030828
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.04
2.
3.
4.
5.
6.