RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         19 October 2006
      DOCKET NUMBER:  AR20060003145


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Melinda M. Darby              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Ronald D. Gant                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his record be corrected to show
his Continuation on Active Duty (COAD) was approved, and that he was
allowed to serve until attaining length of service retirement eligibility.


2.  The applicant states, in effect, his surgery was cancelled and medical
care was denied unjustly while he was on an active duty deployment at Fort
Leonard Wood, Missouri simply because the Hospital and Post wanted to rid
themselves of Reservists on Medical Hold.  He further indicates that his
retention through a potential favorable Physical Evaluation Board (PEB) was
also manipulated.  He further indicates that he completed over 18 years of
service (gray area) while he was on deployment, and he was precluded from
continuing on active duty until retirement.

3.  The applicant provides copies of his medical records in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 19 May 1975.  He continuously served in that status
until 12 May 1992, at which time he was honorably separated, in the rank of
staff sergeant (SSG).

2.  The separation document (DD Form 214) issued to the applicant at the
time of his 1992 separation from active duty shows he was separated under
the provisions of Paragraph 16-8, Army Regulation 635-200, by reason of
reduction in strength-qualitative early transition.  It also shows that at
the time, he had completed a total of 16 years, 11 months, and 24 days of
active military service.

3.  The applicant's record confirms he served in the United States Army
Reserve (USAR) from 13 May 1994 through 12 August 2004, at which time he
was transferred to the Retired Reserve, by reason of medical
disqualification.  His record also contains a Notification of Eligibility
for Retired Pay at Age 60 (20-Year Letter) that was issued to the applicant
on 13 June 2001, and a RPAS that  confirms he completed a total of 26 years
and 8 days of qualifying service for non-regular retirement at age 60.

4.  On 22 July 2003, a Medical Evaluation Board (MEB) convened at
Fort Leonard Wood, Missouri, to consider the applicant's case.  The MEB
determined the applicant's case should be referred to a PEB based on his
diagnosed condition of cervical neck pain with radiographic findings
consistent with significant spondylosis.

5.  On 5 September 2003, the applicant indicated that he did not agree with
the MEB findings and recommendations and he submitted an appeal.  In his
appeal, he indicated that he was not disagreeing with the local MEB's
findings because his case had not yet been reviewed by a PEB.  However, he
indicated that there was an on-going Congressional investigation into the
Hospital's refusal to do corrective foot surgery aggravated by his
deployment, and into the command's  connection to this cancellation of his
surgery.  He stated that he had been on medical hold since late March 2003
awaiting surgery to correct a Hallux Limitus condition that surfaced in
1988.  He further indicated that he desired to complete his deployment and
continue his service.

6.  On 9 September 2003, the MEB approving authority considered the
applicant's appeal and confirmed the original MEB findings and
recommendation.

7.  On 11 September 2003, the applicant submitted a request for
Continuation in the Active Reserve (COAR).  In his request, he stated that
if he was determined to be unfit because of a physical disability, he
wished to be COAR, and that he be assigned duties he was able to perform
within the limitations imposed by his disabilities.

8.  On 30 September 2003, a PEB convened at Fort Lewis, Washington, to
consider the applicant's case.  The PEB evaluated the applicant's diagnosed
condition, which was defined as "cervical spine pain, present
intermittently for a number of years.  Noted to have spondylosis,
congenital fusion of C3-C4, anterior ostephytes C4-5-6-7.  Range of motion
reported full.  Impairment is pain from prolonged wear of ballistic helmet,
or wearing helmet in combination with riding/driving military vehicles".
The PEB found the applicant was physically unfit to perform duties required
of a Soldier of his rank and primary specialty, with a combined disability
rating of 10 percent.  It also recommended he be separated with severance
pay if otherwise qualified.  The applicant non-concurred with the PEB
findings and submitted an appeal on 16 October 2003.

9.  On 30 October 2003, the President of the PEB notified the applicant
that his appeal of the findings and recommendations was carefully
considered; however, the PEB adhered to its original findings and
recommendation of the informal hearing.  The PEB President indicated that
based on his appeal, the applicant's case was returned to Fort Leonard Wood
for reevaluation of his profile and duty restrictions, but the changes made
were not sufficient to reasonably find him fit for continued duty.
Therefore, the original findings were again confirmed.

10.  On 31 October 2003, the applicant non-concurred with the findings and
recommendation of the informal PEB and demanded a formal hearing.

11.  On 24 November 2003, a formal PEB was convened at Fort Lewis,
Washington, to reconsider the applicant's case.  The PEB found the
applicant physically unfit and recommended a disability rating of 10
percent.  The applicant was advised that members awarded a disability
rating of less than 30 percent, who have less than 20 years of active
military service, are required to be separated with severance pay.
However, those members who have 20 qualifying years for Reserve retirement
have the option of electing separation with severance pay and forfeiting
Reserve retirement, or placement in an inactive Reserve status and receive
Reserve retired pay at age 60.  The applicant disagreed with the findings
of the formal PEB, and his case was forwarded to the United States Army
Physical Disability Agency (USAPDA) for review.

12.  On 30 December 2003, the Chief, Operations Division, USAPDA notified
the applicant that his entire case had been reviewed, to include all new
medical evidence he submitted after the formal PEB, and it was concluded
that his case was properly adjudicated by the PEB, which correctly applied
the rules that govern the Physical Disability Evaluation System (PDES) in
making its determination.  This official further indicated that the PEB
findings and recommendations were supported by substantial evidence and
were therefore affirmed.  The applicant was also notified that he could be
eligible for medical care through the Department of Veterans Affairs (VA),
if that agency determines your illness or injury is service-connected.
Furthermore, the applicant could apply for a disability rating through the
VA for any of his service connected illnesses or injuries.  However, the
PDES operating under a different set of laws than the VA, could only
compensate Soldiers for permanently aggravated conditions that caused their
separation and only for the degree of impairment at the time of separation.
 This official also forwarded the applicant's COAR request to Human
Resources Command, St, Louis, Missouri (HRC-St. Louis), and informed them
of the finding of unfit pertaining to the applicant was approved.

13.  The applicant completed a Disability Election Statement electing to be
transferred to the Retired Reserve with entitlement to apply for Reserve
retirement upon reaching age 60, as opposed to separation with severance
pay, and accordingly, Headquarters, 89th Regional Readiness Command,
Wichita, Kansas, Orders Number 04-194-00088 directed the applicant's
reassignment to the Retired Reserve, by reason of medical disqualification,
effective 12 August 2004.

14.  On 8 January 2004, the Command Surgeon, HRC-St. Louis, denied the
applicant's COAR request.  This medical official indicated the denial was
based on the severity and prognosis of the Soldier's medical condition:
chronic cervical spine pain with history of spondylosis and fusion of C3-C4
causing significant limitation of physical activity and which prevented
satisfactory performance of duties required by the applicant's MOS and
grade.  He also indicated the denial was supported by the PEB narrative
summary, specific regulatory guidance, and the fact the applicant already
accrued over 20 qualifying years for Reserve retirement.

15.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System (PDES) and sets forth policies, responsibilities, and
procedures that apply in determining whether a Soldier is unfit because of
physical disability to reasonably perform the duties of his or her office,
grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards
of unfitness because of physical disability.  It states, in pertinent part,
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 their office, grade, rank, or rating.

16.  Chapter 6 of the disability regulation contains the policy on
Continuation on Active Duty (COAD) and Continuation on Active Reserve
States of Unfit Soldiers. It prescribes the criteria and procedures under
which Soldiers who have been determined unfit by the PDES may be continued
on active duty (COAD) or in active reserve status (COAR) as an exception to
policy.  COAD applies only to officers on the active duty list and Regular
Army enlisted Soldiers.  COAR applies to Reserve Component (RC) Soldiers
determined unfit while mobilized, who may only request continuation in
their pre-mobilization status or in the Individual Ready Reserve (IRR).
They are ineligible for COAD, or otherwise being accessed onto the active
duty list as a COAD. The Soldier may return to a mobilized status subject
to mobilization policy.

17.  Title 38, United States Code, sections 1110 and 1131, permits the
Department of Veterans Affairs (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.  The VA, in accordance with its own policies and
regulations, awards compensation solely on the basis that a medical
condition exists and that said medical condition reduces or impairs the
social or industrial adaptability of the individual concerned.  The VA can
evaluate a veteran throughout his lifetime, adjusting the percentage of
disability based upon that agency's examinations and findings.  However,
these changes do not call into question the application of the fitness
standards and the disability ratings assigned by proper military medical
authorities during the applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have had a COAD approved
based on his completion of over 18 years of service, and the supporting
evidence he submitted were carefully considered.  However, there is
insufficient evidence to support this claim.  Further, there is no evidence
to support his claim that undue command influence resulted in his unjustly
being denied surgery for his foot condition, which was not unfitting or
disabling at the time he was processing through the PDES, and for which he
could have pursued treatment through the VA subsequent to his separation,
as he was advised by an official from the USAPDA.

2.  The evidence of record confirms the applicant was properly processed
through the PDES in accordance with the applicable laws and regulations.
His case was properly considered by a PEB and his appeal was properly
reviewed at a formal PEB hearing.  All the arguments and medical evidence
now provided by the applicant were considered and evaluated by both the PEB
during its original review, and during the appellate process, which
included a formal PEB hearing and a USAPDA review, both of which upheld the
original PEB findings and recommendations.

3.  The PEB findings and recommendations, to include the assigned
disability rating, were based on a comprehensive medical evaluation of his
disabling medical condition by competent medical authorities through the
PDES process, and there is no evidence that would not call into question
the validity of the findings and recommendations of the PEB, or that would
support a conclusion that the findings and the recommendation of the PEB
were arbitrary or capricious.

4.  By regulation, RC Soldiers are ineligible for COAD, or otherwise being
accessed into the active duty list as a COAD.  Therefore, notwithstanding
the active duty service he completed, given he was a mobilized RC Soldier,
the applicant was not eligible to be granted COAD.  COAR applies to RC
Soldiers determined unfit while mobilized, and they may only request
continuation in their pre-mobilization status or in the IRR.  The evidence
of record confirms he was properly briefed on the COAR application
procedures during the PDES process, and that his request for COAR was
properly considered by HRC-St. Louis, where it was concluded that it should
be denied based on the severity of his disabling condition, and because he
had already completed the necessary qualifying years of service to qualify
for non-regular Reserve retirement at age 60.  As a result, there is an
insufficient evidentiary basis to supporting granting the applicant's
request for COAD.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MMD__  __JCR __  __RDG__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____Melinda M. Darby____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003145                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/10/19                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2004/08/12                              |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |Medical Disqualification                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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