RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20060004233


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |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 that he be found physically unfit.

2.  The applicant states, in effect, that the leadership of the local Army
hospital interfered in the disability process and that there was no
legitimate reason to overturn the findings and recommendation of his
physical disability board (PEB). He believes that the United States Army
Physical Disability Agency (USAPDA) did not give sufficient weight to his
current assignment or to the fact that  a captain level physician assistant
(PA) is typically assigned to a field battalion.  He maintains that the
USAPDA’s policy is creating a de facto garrison army that is unfair to
those Soldiers who are qualified for worldwide deployment and is at odds
with the fact that there is only one set of standards.  He says,
“Physicians Assistants are put in harms way daily in combat, just like any
other soldier, and my osteoarthritis hinders my ability to perform basic
maneuvering to avoid personal injury.”  He states he cannot physically
perform his duties in a combat environment.  He relates that he suffers
from post traumatic stress syndrome (PTSD), anxiety and depression.  His
family has suffered from the stress of his conditions and this disability
case has made it worse.  He feels betrayed by the Army he has served
faithfully for 15 years.

3.  The applicant provides, in concert with his counsel, the documents
listed below.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be found physically unfit due to
bilateral knee problems rated at 0 percent and that he be separated with
disability separation pay.

2.  Counsel states that the USAPDA had no legitimate reason to review the
case. Since he is a physician assistant (PA) and not a Medical Corps
officer, his case required no special review.  The quality assurance review
was only a ruse brought about by the interference of some of the staff at
Blanchfield Army Hospital

3.  Counsel provides a brief in support of the application, the applicant’s
1 March 2006 memorandum about the case, a timeline of events, a memorandum
from the USAPDA announcing revision of the PEB Proceedings, numerous pages
of medical records, the 23 November 2005 APDAB case, two recent Officer
Evaluation Reports (OERs), a 23 May 2005 memorandum evaluation by the
Headquarters and Headquarters Battery commander, the PEB Liaison Officer
Checklist/Statement, the 8 August 2005 PEB Proceedings, 29 August 2005
orders to the Transition Center for discharge, the 23 September 2005
Revised PEB Proceedings.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a former Regular Army infantry sergeant was discharged
on 23 May 2003 to accept a commission as a United States Army Reserve
(USAR) PA.  He was serving on active duty as the medical officer and
medical platoon leader for 1st Battalion 320th Field Artillery, 101st
Airborne Division at Fort Campbell, Kentucky when disability processing
commenced.

2.  On 5 May 2005 the applicant was issued a permanent L3 physical profile
because of bilateral knee pain.  The profile indicated that he could not
wear personal chemical defense clothing and equipment, could not construct
an individual fighting position, could not do 3-5 second rushes to avoid
incoming fire and was not deployable.  He was precluded from taking the
Army Physical Fitness Test (APFT) except for pushups.  For physical
conditioning he could only do upper body weight training and could walk,
bike and swim only at his own pace and distance.  A Medical Evaluation
Board (MEB) was recommended.

3.  The 20 July 2005 MEB provided findings of “Osteoarthritis, localized
primary –knee, with severe and marked degenerative joint disease of the
right knee and retropatellar pain syndrome of the left knee.  Severity of
pain:  Minimal.  Frequency of pain:  Intermediate.”  His case was referred
to a PEB.

4.  The 24 August 2005 PEB found the applicant unfit due to right knee
osteoarthritis, without limitation of motion and left knee, retropatellar
pain syndrome with minimal, intermittent pain.  The PEB rated both knees at
zero percent disabling and recommended that the applicant be separated with
severance pay.  The applicant concurred and waived a formal hearing.

5.  In a 23 September 2005 memorandum to the applicant, via the Blanchfield
Army Hospital commander at Fort Campbell, the Deputy Commander, USAPDA
announced modification of the PEB findings and recommendations.  The
applicant was found fit for duty based on the following because the,
“preponderance of the evidence supports a finding of fit for duty“, and

      “ DISCUSSION:


         • Soldiers performance is not compromised in a non-combat setting.
            Even if deployed in most situations, except the most extreme,
           the Soldier’s knee discomfort would not place an undue burden on
           the unit of undue risk to Soldier.
         • Deployment of this Soldier is a command decision. “

6.  The applicant offered a rebuttal in a 13 October 2005 memorandum to the
USAPDA.  He contended that the USAPDA was only authorized to review the
seven categories of cases enumerated in Army Regulation 635-200 and
concluded that the Agency must have considered him a medical officer, which
he was not.  He contended that the Agency had insufficient justification to
review his case and insufficient reason to change the outcome.  He asserted
that his ability to perform duty should be evaluated solely against the
requirements for a battalion PA in a combat environment.  He argued that
the finding of fit for duty was contrary to the medical findings.  He
asserted that the USAPDA’s decision to review his case and modify the
outcome was based on the comments of a lieutenant colonel (LTC P____), who
was neither his commander nor his physician.  This individual had admitted
to the applicant that he had spoken to someone at USAPDA and stated that
the applicant could perform garrison duties.

7.  A memorandum from the USAPDA, dated 18 October 2005, noted that no
medical supervisors had indicated that the applicant could not perform his
duties and that all his OERs reflected outstanding performance.  LTC P____
had, indeed, indicated that the applicant had no problem performing his
duties in the troop medical clinic.  The USAPDA also noted that the battery
commander [the  field artillery captain] who had referred the applicant for
disability processing was only his administrative commander and had no
responsibility for the applicant’s performance as a medical professional.
The memorandum also stated that failure to meet medical retention standards
did not equate to physical disability.

8.  After considering the applicant’s rebuttal, his case was referred to
the Army Physical Disability Appeal Board (APDAB) in accordance with
paragraph
4-22e(1)c of Army Regulation 635-40.

9.  On 25 November 2005, the APDAB reviewed the case and concurred with the
USAPDA that the applicant was fit for duty.


10.  Army Regulation 635-40, paragraph 4-22 (Review by USAPDA) states in
pertinent part:
      a. Required review. USAPDA will review the following cases.
      (1) General and Medical Corps officers found unfit.
      (2) Informal proceedings when the Soldier nonconcurs with the
      PEB findings and recommendations, waives a formal hearing,
      submits a statement of rebuttal within the required time frame,
      and consideration of the rebuttal by the PEB does not result in a
      change to its findings and recommendations.
      3) Formal proceedings when the Soldier nonconcurs with the
      PEB findings and recommendations, submits a statement of
      rebuttal within the required time frame, and consideration of the
      rebuttal by the PEB does not result in a change to its findings
      and recommendation.
      (4) Cases in which a voting member of the PEB submits a
      minority report.
      (5) Any case previously forwarded to USAPDA for review and
      approval and which has been returned to the PEB for
      reconsideration or rehearing.
      (6) Cases designated by the CG, USAPDA for review.
      (7) Cases of Soldiers assigned to USAPDA.


      b. Purpose of review. The review will be confined to the case
      records and proceedings and related evidence. The review will
      ensure that the following criteria have been satisfied.
      (1) The Soldier received a full and fair hearing.
      (2) The proceedings of the medical evaluation board and the
      PEB were conducted according to governing regulations.
      (3) The findings and recommendations of the MEBD and PEB
      were just, equitable, consistent with the facts, and in keeping
      with the provisions of law and regulations.
      (4) Due consideration was given the facts and requests
      contained in any rebuttal to the PEB findings and
      recommendations submitted by, or for, the Soldier being
      evaluated.
      (5) Records of the case are accurate and complete.


11.  Army Regulation 635-40 para 4-22e (Consideration of rebuttal) provides
that:
      (1) After considering the Soldier's rebuttal to the revised findings,
        USAPDA will make one of the following determinations:


      (a) Accept the rebuttal; issue new findings and
      Recommendations according to the rebuttal; and forward the case to
      PERSCOM for final action.
      (b) Concur with the original recommendations of the
      PEB; forward the case to PERSCOM for final action.
      (c) Adhere to the revised findings and recommendations and forward the
      case to APDAB.

      (2) USAPDA, will inform the Soldier in writing of the results of its
      consideration of the rebuttal.

12.   Department of Defense INSTRUCTION 1332.38 (Physical Disability
Evaluation) provides the pertinent definitions in the following paragraphs:

      E2.1.25. Physical Disability.  Any impairment due to disease or
      injury, regardless of degree, that reduces or prevents an individual's
      actual or presumed ability to engage in gainful employment or normal
      activity. The term "physical disability" includes mental disease, but
      not such inherent defects as behavioral disorders, adjustment
      disorders, personality disorders, and primary mental deficiencies. A
      medical impairment or physical defect standing alone does not
      constitute a physical disability. To constitute a physical disability,
      the medical impairment or physical defect must be of such a nature and
      degree of severity as to interfere with the member’s ability to
      adequately perform his or her duties.


      E3.P1.3.4.1.1.  The determination of fit or unfit. If determined fit,
      a determination of whether the Service member is deployable may be
      included if Service regulations require such a determination and
      deployability is defined and uniformly applied to the office, grade,
      rank, or rating in both the Active and Reserve components of that
      Service.



      E3.P1.3.4.2.2.  For members determined fit, a determination of whether
      the member is deployable if Service regulations require such a
      determination and deployability is defined and applied to the office,
      grade, rank, or rating in both the Active and Reserve components of
      that Service.


      E3.P1.3.5.  Quality Assurance.  Quality assurance review shall be
      conducted as necessary to ensure compliance with the laws, directives,
      and regulations governing physical disability evaluation.


      E3.P3.3.3.  Adequate Performance Until Referral.  If the evidence
      establishes that the Service member adequately performed his or her
      duties until the time the Service member was referred for physical
      evaluation, the member may be considered fit for duty even though
      medical evidence indicates questionable physical ability to continue
      to perform duty.


      E3.P3.4.1.3.  Deployability.  When a Service member’s office, grade,
      rank or rating requires deployability, whether a member’s medical
      condition(s) prevents positioning the member individually or as part
      of a unit with or without prior notification to a location outside the
      Continental United States.  Inability to perform the duties of his or
      her office, grade, rank, or rating in every geographic location and
      under every conceivable circumstance will not be the sole basis for a
      finding of unfitness.

13.  The OERs submitted by the applicant and his counsel show that for the
periods ending 31 December 2004 and 21 September 2005 the applicant’s rater
was the battalion surgeon, his intermediate rater was the battalion
executive officer and his senior rater the battalion commander.  Both OERs
praise him for outstanding performance and there is no mention of physical
inability to perform his duties.

DISCUSSION AND CONCLUSIONS:

1.  Army Regulation 635-40, paragraph 4-22b provides, in pertinent part,
that the USAPDA should review the PEB decisions using the following
criteria, ”…(3) The findings and recommendations of the MEBD and PEB were
just, equitable, consistent with the facts, and in keeping with the
provisions of law and regulations.…”

2.  The applicant’s case should have been reviewed and reversed by the
USAPDA.  The PEB had not applied the appropriate regulatory standard in
determining that he was unfit.

3.  Inability to perform the duties of his or her office, grade, rank, or
rating in every geographic location and under every conceivable
circumstance is not the sole basis for a finding of unfitness.  The
applicant adequately performed his duties until he was referred for
physical evaluation and he must be considered fit.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JCR___  __DWT__  __WFC_  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.



                                  __      William F. Crain_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004233                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|108.04                  |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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