IN THE CASE OF:	  

		BOARD DATE:	  14 April 2009

		DOCKET NUMBER:  AR20080012918


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, in effect, medical retirement.

2.  The applicant states, in effect, that he was never given a proper medical evaluation.  He indicates his medical discharge processing was interrupted by the stop loss program put into effect as a result of the Gulf War.  He also states that his physical profile was upgraded from a P3 to a P1 without a medical evaluation and that he was later railroaded out of the Army.

3.  The applicant provides the following documents in support of his claim:  DA Forms 3349 (Physical Profile), dated 18 November 1988, 16 May 1990, and 
22 May 1990; Department of Veterans Affairs (VA) Rating Decision, dated 
16 August 2000; Self-Authored Memorandum, dated 2 May 1990; German Doctor’s Statement, dated 10 April 1990; Standard Form 519-B (Radiologic Consultation Request/Report); Headquarters, 56th Field Artillery Command Memorandum, Subject:  Notification of MOS [Military Occupational Specialty]/ Medical Retention Board (MMRB) Proceedings, dated 23 February 1990, with endorsements and  attachments; Headquarters, Bad Cannstatt MEDDAC [Medical Department Activity] Memorandum, dated 11 April 1990; DD Form 214 (Certificate of Release or Discharge From Active Duty); Army Physical Fitness Test (APFT) Scorecard; 5th General Hospital Physical Therapy Memorandum for Record, undated; and Unit Weekly Training Schedule.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel, as the applicant's designated representative requests to be appropriately informed of all actions taken in the applicant's case.  Counsel does not make any additional statements or provide any additional documents in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military record shows that he enlisted in the Regular Army (RA) and entered active duty on 19 July 1977.  He was trained in, awarded, and served in military occupational specialties (MOSs) 17C (Field Artillery Specialist), 15E (Pershing Missile Crewmember), and 19D (Calvary Scout).

3.  A DA Form 3349, dated 18 November 1988, shows that the applicant received a permanent 113111 (PULHES) physical profile.  This document indicated the “3” rating under the “L” (lower extremities) was the result of his mechanical low back pain.  It also shows that his assignments limitations consisted of no running, no lifting over twenty pounds, and no physical training.

4.  On 23 February 1990, the applicant’s commander was notified that the applicant was required to appear before an MMRB on 1 March 1990, based on having been identified as possessing a permanent physical profile with a “3” in one or more of the PUHLES factors.  It also shows that the applicant previously appeared before an MMRB and was placed in a probationary status pending future review of his progress and to make a final determination on his behalf.

5.  On 23 February 1990, the applicant’s commander issued a memorandum indicating the applicant’s physical profile did not hinder his ability to perform his normal daily duties.  He also stated that, in his opinion, the applicant was capable of deploying with his unit to a wartime location.
6.  On 1 March 1990, the MMRB evaluated the applicant’s ability to perform the physical requirements of his primary MOS (PMOS) and determined his ability to satisfactorily perform the duties of his rank in such a manner as to be worldwide deployable was questionable.  

7.  The MMRB further directed the applicant’s case be forwarded to a medical evaluation board (MEB) for further evaluation and indicated that if medical authorities determined his current assignment limitations are not appropriate and the result is the issuance of a less restrictive permanent profile, their office be notified so that a determination could be made as to whether referral to a PEB was still appropriate.

8.  On 2 May 1990, the applicant provided rebuttal comments to the MMRB proceedings in which he alleged there was a pattern of administrative errors, false accusations, and evidence of stonewalling.  He stated that he was accused of failing to seek reclassification, not making several doctor’s appointment, malingering, and told that his problems were all in his head.  He also states that the adjutant responsible for his medical review refused to see him and stated that he was not given the proper guidance throughout the medical review process.

9.  A DA Form 3349 on file, dated 16 May 1990, shows that the applicant's physical profile was modified to a temporary 111111 (PULHES) through 16 June 1990.  It also shows that he had no assignment limitations at that time.  Item 9 (Other) included an entry indicating the applicant was fit for full duty without restrictions. 

10.  A DA Form 3349, dated 22 May 1990, shows that the applicant's back condition as resolved and he was issued a permanent 111111 (PULHES) physical profile.  It also shows he had no assignment limitations at that time and that he was fit for full duty without restrictions.

11.  The applicant's Official Military Personnel File (OMPF) contains a DD Form 4/1 (Enlistment/Reenlistment Document) which shows the applicant reenlisted in the Regular Army on 9 October 1990, for a period of three years.

12.  The applicant's record contains four NCO [Noncommissioned Officer] Evaluation Reports (NCOERs) covering the following periods:  January-December 1989; January 1990-November 1990; December 1990-November 1991; and December 1991 through August 1992.  The Army Physical Fitness Test (APFT) entry on the first report shows he was on a physical profile (September 1988), but a bullet comment confirms he was physically able to 
perform his duties.  The APFT entries on the remaining NCOERs contain entries confirming he passed APFTs in November 1990, September 1991, and April 1992.

13.  On 15 September 1992, the applicant was honorably discharged from active duty by reason of “Fiscal Year (FY) 92 Voluntary Early Transition Program” after completing 15 years, 1 month, and 28 days active military service.  Item 9 (Command to Which Transferred) show that he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  

14.  The applicant's OMPF contains a DD Form 4 (Enlistment/Reenlistment Document), dated 16 September 1992, which confirms the applicant enlisted in the USAR for 3 years in conjunction with his active duty discharge.  An ARPC Form 249-E (Chronological Statement of Retirement Points) on file, dated 1 April 2009, shows he continued to serve in the USAR through 11 July 1995.

15.  The applicant provides a letter from a German doctor, dated 10 April 1990, which indicates the applicant was receiving orthopedic treatment from 
20 February 1990 through 6 April 1990.  He also provides one page of a VA rating decision, dated 16 August 2000, which shows his 0 percent (%) disability rating for a service connected degenerative disc prolapsed, L4/5, L5,S1 condition was increased to 20%, effective 24 September 1997.

16.  During the processing of this case, an advisory opinion was obtained from the Director, Health Policy and Services, Office of the Surgeon General (OTSG), in which this official states that the applicant should have the opportunity to have an MEB.  No other comments were provided.  On 19 February 2009, the advisory opinion was forwarded to the applicant for information and to provide him the opportunity to submit any comments or rebuttal.  The applicant concurred with the recommendation contained in this advisory opinion on 11 March 2009. 

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  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, rank, or rating.  Separation by reason of disability requires processing through the PDES.

18.  Paragraph 2-2b of the same regulation provides guidance on presumptions of fitness and states, in pertinent part, that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness that can be overcome only by clear and convincing evidence that he was unable to perform his duties.  

19.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) 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.  

20.  The same regulation identifies four numerical designations (1-4) that are used to reflect different levels of functional capacity in the following 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.  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.

21.  Title 38, U.S. Code, sections 1110 and 1131, permits the 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 by military medical authorities at the time of discharge.  





DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been medically retired from the Army because he was never given a proper medical evaluation but instead was railroaded out of the Army has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, a member's continued performance of duty creates a presumption of fitness that can be overcome only by clear and convincing evidence that he was unable to perform his duties, and separation/retirement by reason of disability requires processing through the PDES.

3.  The evidence of record confirms the applicant underwent an MMRB in March 1990, which recommended he be evaluated by an MEB.  However, it also shows that subsequent to this recommendation, the applicant was determined to be physically fit to perform the duties of his MOS and grade, as evidenced by physical profiles issued by competent medical authorities in May 1990.

4.  The applicant's record also contains four NCOERs he received subsequent to his MMRB evaluation, which contain physical fitness entries that all confirm he was physically qualified to perform his duties.  These entries also confirm he passed the APFT on three separate occasions in 1990, 1991, and 1992.  Further, the applicant reenlisted in the RA and continued to serve on active duty for more than 2 additional years after his MMRB.  The record also shows that the applicant enlisted in the USAR in conjunction with his discharge from the RA on 15 September 1992, and continued to serve in the USAR subsequent to his separation from active duty.  

5.  The evidence of record does not include the applicant's separation physical examination report, and the applicant failed to provide this report.  In addition, the medical documents and records provided by the applicant, while confirming he was treated for a back condition, fail to provide compelling evidence that this condition rendered him unfit to perform his military duties or for further service at the time of his discharge.

6.  Notwithstanding the recommendation of the OTSG, and in view of the record, there is an insufficient evidentiary basis to overcome the regulatory presumption of fitness established by the applicant's continued active duty service which included a period of reenlistment that began on 9 October 1990 through 15 September 1992, and his subsequent service in the USAR through at least 
11 July 1995.

7.  The applicant is advised that although it is clear he suffered from a back condition while serving on active duty, absent clear and convincing evidence to overcome the presumption of fitness resulting from his continued service after the MMRB evaluation, there is an insufficient evidentiary basis to conclude he should have been processed for separation through medical channels.  The applicant is advised that he is properly being evaluated, treated, and compensated for his service-connected back condition by the VA, which is the appropriate agency to provide these benefits for service connected conditions that were not determined to be unfitting at the time of his discharge.
 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.




      _______ x_   _______   ___
               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)                                         AR20080012918



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ABCMR Record of Proceedings (cont)                                         AR20080012918



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