IN THE CASE OF:	  

		BOARD DATE:	      4 December 2008

		DOCKET NUMBER:  AR20080014853 


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, that the narrative reason of his honorable discharge for completion of required active service be changed to a medical discharge.

2.  The applicant states, in effect, that he should have been medically discharged due to his service connected illnesses.  He further states that a review of his administrative records will show that his paperwork was prepared improperly.

3.  The applicant provides a self-authored statement, a DD Form 214 (Certificate of Release or Discharge from Active Duty) Worksheet, a statement from the American Legion, and 140 pages extracted from his military medical records as additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows the applicant enlisted in the Army's Delayed Entry Program on 5 December 2000 and enlisted in the Regular Army on 25 January 2001.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  The highest rank/grade he attained during his military service was sergeant (SGT)/pay grade E-5.

2.  The record shows the applicant's final unit of assignment was the 236th Medical Company (Air Ambulance) based in Landstuhl, Germany.

3.  Landstuhl Regional Medical Center Medical Evaluation Board (MEB) Report, dated 21 February 2006, shows a MEB was initiated by Doctor A____s to determine if the applicant met retentions standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  The applicant's diagnosis of Diabetes Mellitus Type 1 was the basis for initiating the MEB.  The physician noted the applicant was admitted to the hospital, received diabetes education, and insulin therapy was initiated.  The physician further noted that the applicant had no diabetes-related complications and that his knowledge of diabetes and its management were adequate.

4.  The Disposition and Recommendations portion of the MEB Report shows, in cases where a patient has diabetes which requires medical therapy with oral agents or insulin, Army Regulation 40-501 requires the patient's case to be referred to the Physical Evaluation Board (PEB) for review.  It is also noted that the applicant was given a permanent physical profile with the following limitations:

	a.  No extended consumption of MREs [Meals Ready to Eat] and availability of three meals daily.

	b.  Quarterly visits to Internal Medicine, Family Practice physician, or endocrinology.

	c.  Constant access to a glucometer, diabetes supplies, and medications.

	d.  No operation of heavy machinery/trucks/aircraft or working at heights.

	e.  No carrying a weapon for personal protection or security detail.

	f.  No PT (Physical Training) or carrying/firing a weapon at a range when blood glucose>250 or <70 milligrams per deciliter.

5.  The Current Functional Status portion of the MEB Report shows that the physician opined the applicant was unable to perform all requirements of his MOS in garrison without impact from his diabetes.  He added that the applicant anticipated diabetes would have a major impact on his ability to perform all requirements of his MOS in a field environment or during a deployment.  The physician noted that Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) requires that a Soldier be capable of maintaining himself in a normal military environment without adversely affecting his health and the health of others and without undue loss of time from duty for medical 

treatment.  He also opined that the nature of diabetes and its treatment in a military environment generally runs counter to these requirements.  The physician further opined that to successfully manage his diabetes, the applicant needs to perform self-monitoring of his blood glucose, and attend to and control the composition of his meals.  The physician concluded that the applicant's metabolic control at the time was fair and improving.  

6.  The physician recommended the following geographic assignment considerations for the applicant:

	a.  He should be assigned within 100 miles of a United States hospital facility.

	b.  He should not work in environments where the sustained ambient temperature is greater than 90 degrees Fahrenheit.

	c.  If the applicant experiences frequent episodes of low blood sugar or is unaware that his blood sugar is low, he should not handle loaded weapons or weapons or explosives or be required to perform duties where loss of consciousness would pose a threat to self or others.

	d.  He must have a duty schedule that permits regularly scheduled meals, the self-monitoring of blood glucose, and the taking of snacks for low blood sugar reactions.

7.  A DA Form 3349 (Physical Profile), dated 16 February 2006, shows the applicant was issued a permanent profile indicating the physical limitations specified in the MEB report.  This profiling officer was Doctor A____s, the same physician who prepared the MEB report.  The senior profiling officer or approving authority was Doctor M____z.

8.  Landstuhl Regional Medical Center MEB Summary, dated 30 May 2006, shows the applicant's MEB was summarized by Doctor M____z to determine if the applicant met retentions standards in accordance with Army Regulation 40-501.  The applicant's Diabetes Mellitus Type 1 and a thyroid tumor were the basis for initiating the MEB.  The physician noted the applicant was capable of performing all standard and alternate events of the Army Physical Fitness Test and that he participated in regular physical training with his unit.  The physician opined that although the applicant was able to wear all chemical protective gear, able to construct an individual fighting position, and able to do 3-5 second rushes into direct or indirect fire; he was unable to carry and fire a weapon and unable to 
move two miles with a fighting load, therefore he was unable to deploy 

worldwide.  The physician stated the applicant's condition was possibly unstable and the prognosis for him to return to full duty was poor.  The physician concluded that the applicant did not want to stay in the United States Army, he did not desire to change his MOS, and he did not meet retention standards in accordance with Army Regulation 40-501.  The physician recommended referral of the applicant's case to the PEB for further adjudication.

9.  Kaiserslautern Transition Center Orders 048-04, dated 17 February 2006, assigned the applicant to the Kaiserslautern Transition Center for transition processing.  These orders directed that after processing, the applicant was to be released from active duty on 31 October 2006 not by reason of physical disability and assigned to the United States Army Reserve Control Group (Reinforcement) based in Saint Louis, Missouri effective 1 November 2006.  These orders also show the applicant was not entitled to separation pay.

10.  On 11 July 2006, an informal PEB convened in Washington DC to consider the applicant's case.  The PEB concluded that the applicant did not have any functional impairment which prevented satisfactory performance of duty.  The PEB found the applicant fit for duty based upon the facts that he was capable of training for and performing the standard events of the Army Physical Fitness Test and all the functional activities of a Soldier of his grade and MOS in his current assignment.  The PEB also noted that the applicant's physical profile did not deny him the use of chemical protective garments or preclude the wearing of protective body armor, the Kevlar helmet, or load bearing equipment.  The PEB opined that, based upon the applicant's recent lab results which indicated his diabetes was under control, there was no reason why he could not carry and fire a weapon.  The PEB also noted that deployability is a commander's decision and non-deployability, moreover, is not an unfitting condition.  As a result, the PEB determined the applicant should be returned to duty as fit.

11.  The applicant's DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report), dated 19 July 2006, covered his performance for the period of September 2005 through June 2006.  Part IV (Values/NCO Responsibilities) of this form shows the applicant's Rater rated his performance as successful in every aspect of his duties as a Supply Sergeant.  Part V of this form shows the applicant's Senior Rater rated him as fully capable and stated that he had "boundless potential for positions of increasing authority."

12.  On 31 July 2006, the applicant non-concurred with findings of the PEB.  Essentially, the applicant's contention was based upon his opinion that the PEB findings were incongruent with the recommendations of the physician who 
summarized his MEB and the possibility that his condition could become worse.

13.  United States Army Physical Evaluation Board, Walter Reed Army Medical Center, Washington DC memorandum, dated 4 August 2006, shows the President of the PEB informed the applicant that the Washington PEB had received his letter of rebuttal dated 31 July 2006.  The President of the PEB also informed the applicant that since his rebuttal contained no new substantive medical information not previously considered, the Board affirmed the decision of the informal PEB that found him fit.  The President of the PEB continued that although the applicant presented no new evidence, his case was carefully reviewed and the Board found no basis for a change its action in his case and reaffirmed its previous findings.  The President of the PEB concluded by informing the applicant that his entire case file, including his rebuttal, had been forwarded to the United States Army Physical Disability Agency for review.

14.  United States Army Physical Disability Agency, Washington DC memorandum, dated 20 August 2006, informed the applicant that the United States Army Physical Disability Agency had noted his disagreement with the findings of the PEB and had reviewed his entire case.  The Agency concluded that his case was properly adjudicated by the PEB which correctly applied the rules that govern the Physical Disability Evaluation System in making its determination.  As a result, the United States Army Physical Disability Agency supported and affirmed the findings and recommendations of the PEB.

15.  The applicant provides a DD Form 214 Worksheet that was prepared as a working draft prior to rendering his final DD Form 214.  This form contains the same entries as his final DD Form 214 with the exception of the fact that it was not signed by the applicant or the official authorized to sign.  In lieu of their respective signatures, the word "WORKSHEET" is entered in the pertinent blocks of the form.

16.  The applicant's DD Form 214 shows he entered active duty on 25 January 2001 and served a total of 5 years, 9 months, and 6 days prior to being released from active duty with an honorable characterization of service and transferred to the USAR Control Group (Reinforcement) upon completion of his required active duty on 31 October 2006.  Block 27 of this form shows the applicant was assigned a Reentry Code of "1," indicating that he was fully qualified for reentry into the United States Army.

17.  The applicant provides 140 pages extracted from his military medical records which essentially show the history of his medical diagnoses, treatment and subsequent Physical Disability Evaluation System proceedings.


18.  Prior to submitting his request for correction of his military record to the Army Board for Correction of Military Records, the applicant sought advice from a representative of the American Legion.  The applicant provides a statement from the representative of the American Legion, dated 1 October 2008.  The American Legion representative reiterated the fact that the MEB results indicated the applicant's medical condition prevented him from performing basic Soldiering tasks.  The American Legion representative also emphasized the fact that medical staff opined that the applicant's prognosis for returning to full duty was poor and he did not meet the retention standards of Army Regulation 40-501.

19.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

20.  Chapter 61, Title 10, United States Code (USC) provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The United States Army Physical Disability Agency, under the operational control of the Commander, United States Army Human Resources Command, Alexandria, VA, is responsible for operating the Physical Disability Evaluation System and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  Soldiers enter the Physical Disability Evaluation System four ways:  

	a.  Referred by a MEB.  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility conducts a MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40; 

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to a MEB/PEB is one of the actions the MMRB Convening Authority may direct; 

	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in a MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referred as a result of Headquarters Department of the Army action.  The Commander, United States Army Human Resources Command, upon recommendation of the Surgeon General, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above.  United States Army Human Resources Command also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier to a different MOS.

21.  Army Regulation 635-40, in pertinent part, provides that Soldiers enter the PDES under the presumption they are physically fit.  This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.

22.  Once a MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.  The PEB initially conducts an informal adjudication. 
This is a records review of the MEB and applicable personnel documents without 


the Soldier present.  The informal decision is forwarded to the Physical 
Evaluation Board Liaison Officer for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the United States Army Physical Disability Agency to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

23.  Department of Defense Instruction (DoDI) 1332.39, dated 14 November 1996, in pertinent part, provides that the severity of each case of Diabetes Mellitus should be individualized taking into consideration the expected natural course of the disease variants.  The DoDI continues that Insulin dosage is not a good indicator and is only a factor to consider in the overall evaluation of the disease.  The DoDI further provides that response to specific therapy, diet, activity, compliance, and time are all important.  The DoDI concludes that with adequate compliance, many diabetics are fit with minimum restrictions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the narrative reason of his honorable discharge for completion of required active service should be changed to a medical discharge was carefully considered and determined to lack merit.

2.  The applicant's final NCO Evaluation Report shows that his rating chain opined that he had successfully performed all of his duties as a Supply Sergeant and that he had the potential to continue doing so.

3.  The evidence of record confirms the applicant was properly processed through the Army's Physical Disability Evaluation System.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the Physical Disability Evaluation System process.  It further shows that a formal PEB ultimately determined the applicant was fit for service.  The PEB recommended the applicant be returned to duty as fit. 

4.  Although the evidence of record confirms the applicant was treated for a potentially disabling medical conditions while serving on active duty, his diabetes was determined to be under control through monitoring and medication.  Therefore, there is no evidence that his condition was unfitting for further service, as is required in order for him to be medically discharged.  

5.  In the absence of any medical evidence to the contrary, administrative regularity is presumed in the applicant's separation process.  Furthermore, the applicant has failed to overcome the presumption of fitness.  The presumption is overcome if the applicant can show, through a preponderance of evidence, that because of a disability, he was physically unable to perform adequately the duties of his office, grade, rank or rating prior to his separation from the Army.  

6.  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

___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)                                         AR20080014853





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ABCMR Record of Proceedings (cont)                                         AR20080014853



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