IN THE CASE OF:	  

		BOARD DATE:	        19 AUGUST 2008

		DOCKET NUMBER:  AR20080006745 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the findings of the non-duty related Physical Evaluation Board (PEB) be changed and that she be compensated for lost income, time, benefits and intentional infliction of emotional distress from February 2005 to present.  

2.  The applicant states, in effect, that she believes she was the victim of the Army’s 2005 budget cuts when she was deemed to be unfit for duty by the PEB and was transferred to the Retired Reserve.  She goes on to state that she did not receive due process, that the process lacked fairness and contained unprofessional actions, and resulted in intentional infliction of emotional distress and wrongful discharge.  She continues by asserting that she believes she can still perform the duties of her military occupational specialty (MOS) and that she went from a successful military career to homelessness, unemployment, and living below poverty status.  She also asserts that the PEB made its decision based on insufficient evidence and it resulted in her being medically retired.

3.  The applicant provides a two-page statement of her position which lists all of the enclosures she has provided with her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 31 October 1955 and enlisted in the Regular Army in Charlotte, North Carolina on 9 April 1986 for training as a chaplain’s assistant. 

She completed her training and remained on active duty through a series of continuous reenlistments.  She was promoted to the pay grade of E-6 on
1 February 1994. 
 
2.  On 30 July 1997, she was issued a permanent physical profile of 113111      (3 on lower extremities) indicating that she had a medical condition of shin pain (bilateral tibial stress reaction); foot pain (pes planus with bilateral great toe sesamoiditis); hip pain (right pelvic stress fracture resolving) and more foot pain (Plantar Fasciitis).  On 24 September 1997, she was found fit for duty within the limits of her profile by a PEB.  

3.  On 1 May 1998, she was honorably released from active duty under the Early Release Program – Special Separation Benefit (SSB).  She had served 12 years and 23 days of total active service and was paid $39,858.48.  She was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  On 1 January 2003, she was promoted to the pay grade of E-7.       
4.  On 24 March 2004, she was issued a permanent physical profile of 114111  (4 on lower extremities) for Pes Planus (flat feet).  She was given assignment limitations of “no walking in combat boots, with field gear or with ruck sack.  Limit lifting and standing.  No running or push ups.  Unable to run to avoid hostile fire.  No training (running) in formation.”  The physician deemed her physically fit for retention under the provisions of Army Regulation 40-501, Standards of Medical Fitness and forwarded it to the review/approval authority for review.

5.  On 28 February 2005, the applicant was notified by the office of the command surgeon at the Human Resources Command – St. Louis (HRC-STL) that her medical records indicated that she had one or more medical conditions that disqualified her for retention in the USAR (Rheumatoid arthritis, degenerative joint disease in feet, and flat feet).  She was advised that she could elect transfer to the Retired Reserve if otherwise eligible based on total qualifying years of service (option 1), that she could elect discharge from the USAR with an honorable discharge (option 2), or that she could elect consideration by a Non-Duty Related Physical Evaluation Board (NDR-PEB) as option 3.  She was also advised that the NDR-PEB purview was limited to fitness determination and could not award disability compensation.  She was also advised that the       NDR- PEB would consider her medical records, non-medical administrative documentation, such as evaluation reports, Army Physical Fitness Test results, commander’s recommendations and any other information she wished to submit. She was advised to submit whatever documentation she wished to be considered by an NDR-PEB no later than 28 March 2005.  The applicant elected consideration by an NDR-PEB (option 3) on 7 March 2005 and sent a letter to the 
NDR-PEB requesting that she be allowed to continue in the USAR contending that she was able to perform her duties within the limits of her profile.  She also contended that she had fully recovered from a mild case of Rheumatoid arthritis and requested that her profile be changed to 113111.

6.  On 19 July 2005, the applicant was notified that an informal Reserve Component NDR-PEB had found her unfit for duty.  The applicant indicated that she did not concur with the findings and elected to submit a statement identifying her issues of disagreement.  She also requested appointment of counsel to represent her and demanded a formal hearing without personal appearance. 

7.  The applicant was advised of her rights in regards to appearing before a formal NDR-PEB and on 8 August 2005, after consulting with her appointed legal counsel, she elected not to appear for the hearing.     

8.  On 19 August 2005, the applicant contacted her counsel and advised her to cancel the formal board proceedings because she could not ruck, march, be on her feet for too long, or wear military foot gear.  She advised her counsel that she concurred and waived a formal hearing.  On 22 August 2005, the applicant formally withdrew her demand for a formal hearing and indicated that she agreed with the informal PEB decision.  She requested transfer to the Retired Reserve. 

9.  On 1 September 2005, the applicant was issued a permanent physical profile of 114111 (4 on lower extremities) for Feet: bilateral pes planus, degenerative joint disease, and plantar fasciitis.  The profile was issued by the HRC-STL Command Surgeon based on a PEB that determined that the applicant’s condition prevented satisfactory performance of her duties in her grade and primary specialty.    

10.  On 22 September 2005, the applicant was formally notified by memorandum that the NDR-PEB had found her unfit for duty and provided her a copy of the PEB proceedings.

11.  On 30 November 2005, the applicant was transferred to the Retired Reserve.  She had 15 years, 11 months, and 20 days of creditable service for retirement. 

12. Army Regulation 40-501, Standards of Medical Fitness, provides in pertinent part, that normally, Reservists who do not meet the fitness standards outlined in chapter 3 of that regulation will be transferred to the Retired Reserve in accordance with Army Regulation 140-10 or discharged from the USAR under the provisions of Army Regulation 135-175 or Army Regulation 135-178.  They 
will be transferred to the Retired Reserve only if eligible and if they apply for it.  A review of chapter 3 indicates that each of the applicant’s diagnosed medical conditions required referral to a PEB either individually or collectively.

13.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides in pertinent part, that all relevant evidence must be considered in evaluating the fitness of a Soldier.  Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence.  Thus if the preponderance of evidence indicates unfitness, a finding to that effect will be made.  This is particularly true if medical evidence establishes the fact that continued service would be harmful to the Soldier’s health or would prejudice the best interests of the Army.  Although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness.  It also provides 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 member may reasonably be expected to perform because of his or her office, rank, grade or rating.  

14.  Army Regulation 15-185, Army Board for Correction of Military Records, provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for correction of a military record.  It provides, in pertinent part, that the Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records under 10 USC 1552.  The Army, by law, may pay claims for amounts due to applicants as a result of a correction of military records. 
 
DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that the applicant was properly evaluated by the NDR-PEB for her condition as it existed at the time she was evaluated and was deemed unfit to satisfactorily perform the duties of her office, rank, grade or rating.   

2.  It also appears that the applicant was properly informed of her rights at the time and elected to waive her right to a formal hearing and to accept the findings and recommendations of the NDR-PEB, rather than to appeal her case at a formal hearing whereas she could have asserted any additional issues she may have had at the time.    

3.  While the applicant’s desire to continue to serve is commendable, it is not reasonable for this Board to attempt to second-guess the medical officials of the NDR-PEB that considered her case without specific evidence of any error or injustice that the applicant believes exists in her case.  Therefore, there is no basis to change the decision of that board or to return her to active service in the USAR.

4.  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

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of her service in arms.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006745



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ABCMR Record of Proceedings (cont)                                         AR20080006745



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