RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 12 February 2004
         DOCKET NUMBER: AR2003091071


         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. Carl W. S. Chun		Director
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. JoAnn Langston		Chairperson
Mr. Lester Echols		Member
Mr. Robert J. Osborn		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).


1. The applicant requests that her honorable discharge from the U.S. Army Reserve (USAR) be changed to a medical discharge.

2. The applicant states, in effect, that she was given a physical in February 1998 and found not fit for military duty/medically disqualified. She was not sent to a Medical Evaluation Board (MEB) and was wrongfully discharged in 1999. In several letters to her Senator, she contends that her illness was not diagnosed. At the time of her departure from the service she was given 45 days to find a civilian doctor to state that she was fit for duty. That did not make sense to her. She states that shortly after those actions were taken she had a minor stroke that left her totally incapacitated for the full year of 1999 but she still performed her duty with the military. Her discharge [orders] read "Chapter 11 N1." To her understanding, the chapter 11 means that she was unable to cope with military duty. She wonders how a person who served 20 years could not be able to cope. She was a Gulf War veteran and according to PEB Administrative Bulletin 16-94, paragraph 2, she should not have been separated from the service until she went before an MEB.

3. The applicant provides two letters of explanation to her Senator, dated 24 April 2003 and 27 March 2003; a letter, dated 9 January 1999, from the Command Surgeon, 88th Regional Support Command, Fort Snelling, Minnesota; a physical examination, dated 7 February 1998; a memorandum for Notification of Medical Unfitness for Retention; a memorandum for Medical Duty Review Board Recommendations, dated 9 March 1995; a Defense Finance and Accounting Service Military Leave and Earnings Statement, dated 28 April 1999; a memorandum for Persian Gulf Illnesses and the Disability Evaluation System, dated 2 June 1994; a memorandum for Persian Gulf Illnesses and the Disability Evaluation System, dated 22 May 1995; discharge orders, dated 6 June 1999, from the U.S. Army Reserve (USAR); disability certificates, dated 3 February 1999, 24 May 1999, and 14 October 1999; and a Physical Profile, dated
7 February 1998.

CONSIDERATION OF EVIDENCE :

1. The applicant enlisted in the USAR on 26 October 1979 for a period of
6 years under the delayed entry program. On 27 November 1979, she enlisted in the Regular Army for 4 years. On 22 July 1983, she was honorably released from active duty. On 17 September 1985, she reenlisted in the USAR for a period of 6 years. Her latest noncommissioned officer evaluation report (NCOER) shows her rank as Sergeant, E-5 with a date of rank of 2 February 1989 and a primary military occupational specialty of 92A (Automated Logistical Specialist).

2. On an unknown date, the applicant enlisted in the Army National Guard. She was ordered to active duty on 4 February 1991 in support of Operation Desert Shield/Storm and served in Southwest Asia from 13 March 1991 through 4 October 1991. She was released from active duty on 19 November 1991.

3. A memorandum dated 9 March 1995 from the Alabama State Military Department to the applicant informed her that a Medical Duty Review Board (MDRB) reviewed all medical documentation pertaining to her medical condition. Although she was not cleared by the MDRB, as a Gulf War Veteran, she could not be separated due to PEB Administrative Bulletin 16-4, Department of the Navy, dated 16 September 1994, which prohibited separation of Desert Storm veterans unless a signed statement requesting separation was received from her or her illness had been diagnosed.

4. The applicant was discharged from the Army National Guard around 20 December 1995 and transferred to the USAR Control Group (Reinforcement). She was transferred to a troop program unit on an unknown date. She reenlisted in the USAR on 19 February 1993 for a period of 6 years.

5. The applicant underwent a physical examination on 7 February 1998 and was found not qualified for retention with a physical profile of 323111. Several defects were noted by the medical authority which included peripheral neuropathy, unable to pass [body fat] tape test, swollen and painful joints, a breast mass, depression/anxiety, and an abdominal hernia. The attending physician recommended that the applicant be placed in the weight control program, that a breast biopsy be performed, and that she appear before an MEB.

6. On 7 February 1998, the applicant was issued a permanent profile of "3" under physical capacity or stamina, a permanent profile of "2" under upper extremities, and a permanent profile of "3" under lower extremities for rectal fistulas, peripheral neuropathy, and generalized arthralgia. She was given assignment limitations of no mandatory or strenuous physical activity.

7. The applicant's NCOER covering the period December 1997 through May 1998 shows that she was rated "Success" under the category Physical Fitness and Military Bearing. It was noted that she met the standards of Army Regulation 600-8 and that her profile did not affect her duty performance.

8. On 9 January 1999, the Command Surgeon of the 88th Regional Support Command at Fort Snelling, Minnesota, concurred that the applicant did not meet retention standards of Army Regulation 40-501, chapter 3. He recommended that separation action be initiated, that the applicant be counseled as to her rights to a PEB evaluation, solely for a fit for duty determination, as well as the option to retire, if eligible. If she elected a PEB evaluation after separation action was initiated, she was responsible for assembling and submitting a case file to the 88th Regional Support Command Surgeon's office to arrive within 45 days after the written request was received from her. A sample notification and counseling memorandum was enclosed.

9. The applicant provided a disability certificate dated 3 February 1999 from the Healthy Family Center, Mishawaka, IN which indicated she was totally incapacitated from 28 January 1999 and could not work at least until 1 April 1999.

10. On 17 February 1999, the applicant extended her enlistment for 3 months under the provisions of Army Regulation 140-111, Table 3-1, Rule T, making her expiration term of service 18 May 1999.

11. The applicant provided a leave and earnings statement which showed she apparently last attended inactive duty training on 13 April 1999.

12. The applicant provided two additional disability certificates. One dated 24 May 1999 indicated she was totally incapacitated from 17 May to 1 September 1999 (sic). One dated 14 October 1999 indicated she was released back to work.

13. On 6 June 1999, the applicant was honorably discharged from the USAR under the provisions of Army Regulation 135-178, chapter 11, for expiration of service obligation.

14. The applicant's Retirement Points Accounting Statement shows she completed 12 years of qualifying service for non-regular retirement.

15. Under Secretary of Defense (Personnel and Readiness) Memorandum dated 2 June 1994, Subject: Persian Gulf Illnesses and the Disability Evaluation System, asked the Services to direct that no service member who showed symptoms associated with Persian Gulf illness be retired or separated unless (1) the member requested retirement or separation in writing or (2) the member could be medically retired or separated through the disability system with an established diagnosis recognized by the Veterans Administration's Schedule for Rating Disabilities (VASRD). The policy applied to all members serving in the Armed Forces.

16. Under Secretary of Defense (Personnel and Readiness) Memorandum dated 22 May 1995, Subject: Persian Gulf Illnesses and the Disability Evaluation System, informed the Services that the Department of Veterans Affairs (DVA) had now promulgated final regulations establishing a method of rating disabilities associated with signs and symptoms of undiagnosed illnesses arising from Persian Gulf service. This method evaluates signs and symptoms based on analogous diagnoses for which disability ratings now exist under the VASRD.
17. The 22 May 1995 memorandum went on to state that Persian Gulf related illnesses will be considered by the disability evaluation system under normal disability evaluation system rules and procedures with the following special provisions: 1. For any member found unfit for duty based on a physical condition classified by an MEB as an undiagnosed illness related to Persian Gulf Conflict service, the PEB will use the VASRD evaluation by analogy rule adopted by the DVA to make a disability rating; and 2. Whenever an MEB determines that a case should be referred to a PEB based on a physical condition involving an undiagnosed illness related to Persian Gulf service, the MEB will include in its review of the member's condition the results of the Comprehensive Clinical Evaluation Program (or comparable military medical system evaluation).

18. The 22 May 1995 memorandum also stated that all other standards, rules, and procedures of the disability evaluation system shall apply to Persian Gulf related illnesses in the same way they apply to other illnesses.

19. Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Chapter 11 of the regulation governs separation for expiration of service obligation. It states that no soldier may be held in service beyond the normal expiration of term of service unless expiration of term of service is extended by law. When through administrative error a soldier is not discharged on the actual date of completion of enlistment or reenlistment, a remark will be included on the individual's DA Forms 2 and 2-1 (Personnel Qualification Record) to show he or she was retained beyond normal discharge date for the convenience of the Government.

20. Army Regulation 140-111 (U. S. Army Reserve Reenlistment Program), Table 3-1 (Authorized reasons and periods of extensions), Rule T states that a soldier who, through no fault of his or her own, does not meet the eligibility criteria of Table 2-1, Rule C or E, will be extended for the period necessary to provide the soldier the opportunity to meet the qualification criteria of Table 2-1, Rule C or E, but not to exceed 6 months.

21. Army Regulation 140-111, Table 2-1 (Basic reenlistment eligibility criteria) Rule C is Trainability. Rule E is Medical. Subrule E2 states that if the individual does not meet the retention medical fitness standards in Army Regulation 40-501, chapter 3, then the applicant is disqualified from reenlistment and a waiver is required.

22. Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the standards for medical fitness for retention and separation, including retirement. Chapter 7 of this regulation 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 which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.

23. Army Regulation 40-501, paragraph 9-10 states that Reservists who do not meet medical retention standards may request continuance in an active USAR status. Reservists with nonduty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness. Paragraph 8-7b states that, in general, medical examinations conducted for the Army will be completed at facilities of the Armed Forces. There may be contract agreements with civilian or DVA facilities to perform military medical or separation examinations for Active or Reserve Component forces.

24. 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.

25. In August 1998, the Office of the Chief, Army Reserve (OCAR) established a process to refer soldiers of the Reserve Component who are pending separation for medical disqualification into the Disability Evaluation System. The process was designed to give the soldier with a non-duty related impairment the option of requesting a PEB solely for the purpose of fitness determination but not a determination of eligibility for disability benefits. OCAR noted that it is Department of Defense policy that Reserve Component members pending separation for medical disqualification are entitled to a fitness determination by each Service’s PEB when requested by the soldier. These provisions were later incorporated into Army Regulation 40-501 as noted above.

DISCUSSION AND CONCLUSIONS :

1. It is acknowledged that the applicant was found to be medically disqualified for retention during a physical examination taken in February 1998. However, there is no evidence to show she was erroneously not sent to an MEB or that she was wrongfully discharged in 1999.

2. The specific condition(s) for which the applicant was found to be medically disqualified for retention is not known from the available evidence. It is noted, however, that the Command Surgeon of the 88th Regional Support Command stated she should be counseled as to her right to a PEB solely for a fit for duty determination. This is an indication that the Command Surgeon did not feel her condition was the proximate result of performing duty. As such, she would not have been entitled to an MEB.

3. Since the applicant states that she was "given 45 days to find a civilian doctor to state that she was fit for duty," it appears the applicant may have been given the notification of medical unfitness for retention memorandum attached to the Command Surgeon's letter or at least verbally counseled as to her options. Referral to a civilian doctor would not have been inappropriate if her unit used a contract civilian facility for medical examinations for its soldiers.

4. The applicant states that according to PEB Administrative Bulletin 16-94 (not available but it appears it was based on the Under Secretary of Defense (Personnel and Readiness) Memorandum dated 2 June 1994, Subject: Persian Gulf Illnesses and the Disability Evaluation System) she should not have been separated from the service until she went before an MEB. She provides but fails to realize that Under Secretary of Defense (Personnel and Readiness) Memorandum dated 22 May 1995, Subject: Persian Gulf Illnesses and the Disability Evaluation System, superseded the 2 June 1994 memorandum.

5. In addition, the applicant contends that she had a minor stroke "shortly after those actions were taken" and she provided a disability certificate showing she was totally incapacitated from about February 1999 to October 1999. However, she also states that she still performed her military duties. She provides a leave and earning statement to show she performed inactive duty training in April 1999. Her last available NCOER showed her profile did not prevent her from performing her duties. Despite evidence to show she had been found to be medically disqualified for retention by medical personnel during a medical examination, it cannot be presumed that a PEB would have found her to be unfit for retention.

6. The applicant was discharged under the provisions of Army Regulation 135-178, chapter 11 because her enlistment contract, with extension, was up. She could not be held in service beyond her normal expiration term of service. She appears to be confusing this regulation and chapter with chapter 11 (entry level performance and conduct) of Army Regulation 635-200, which governs the separation of Active Army enlisted personnel.
7. It is also noted that while the applicant may have had service from 1979 to 1999, her Retirement Points Accounting Statement shows she completed only 12 years of qualifying service for non-regular retirement.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ jl ____ _ le _____ __ rjo ___ DENY APPLICATION


The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




                  __JoAnn Langston______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091071
SUFFIX
RECON
DATE BOARDED	20040212
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	108.00
2.
3.
4.
5.
6.