IN THE CASE OF:	  

		BOARD DATE:	        21 July 2009

		DOCKET NUMBER:  AR20090000180 


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, reconsideration of her request for the removal/deletion of her non-duty related physical evaluation board (PEB) decision and her request that she be awarded disability retirement as of 30 November 2005.

2.  The applicant states, in effect, that dealing with health problems, homelessness, unemployment, and military career ending issues at the same time was a bit much.  She also states that she was awarded disability retirement on 30 November 2005.  She has finally been able to locate medical records to submit as evidence with her request.  She further states, in effect, that she is confused about the medical conditions stated on the DA Forms 3349 (Physical Profile), dated 30 July 1997, 24 March 2004, 25 February 2005, and 1 September 2005, as they all relate to feet conditions.  Her confusion stems from not knowing if these conditions are the same with different names.

3.  In support of her application, the applicant provides copies of a Radiologic Consultation Request/Report, a Telephone Consultation, a Radiologic Consultation, a DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), page 3 of 3 pages of a DA Form 2807-1 (Report of Medical History), page 3 of 3 pages of a DA Form 2808 (Report of Medical Examination), a Standard Form 507 (Medical Record), four DA Forms 3349, a DA Form 199 (PEB Proceedings), Radiology Reports, and the first page of a Notification of Medical Disqualification memorandum.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080006745 on 19 August 2008.

2.  The applicant resubmitted some evidence that had previously been considered by the Board.  However, she submitted additional medical documentation that had not been previously reviewed by the Board.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant was born on 31 October 1955.  Her military records show she enlisted in the Regular Army on 9 April 1986.

4.  The applicant submits a copy of a Radiologic Consultation Request/Report, dated 24 January 1994, that shows decreased calcaneal inclination was present bilaterally during a radiological examination of her lower extremities and ankles.

5.  On 24 July 1997, an MEBD convened and considered the applicant's conditions of bilateral tibial stress reaction, resolving; right inferior pubic ramus stress fracture, resolving; pes planus with bilateral great toe sesamoiditis; history of chronic otitis externa, resolved at that time; and plantar fasciitis.  The MEBD recommended the applicant be referred to a PEB.

6.  A DA Form 3349, dated 30 July 1997, shows the applicant was issued a permanent physical profile of 113111 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).  This DA Form 3349 was previously reviewed by the Board.

7.  The applicant also submits a copy of a Radiology Consultation, dated 10 April 1998, that shows a radiological bilateral examination of her feet showed she had pes planus.  She underwent the examination after her examination on 22 April 1997 for right hip, foot, and lower extremity pain.

8.  The applicant was honorably released from active duty on 1 May 1998, under the Early Release Program – Special Separation Benefit.  She was credited with 12 years and 23 days of net active service and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).
9.  The applicant submits a copy of page 3 of a DD Form 2807-1, dated 16 March 2003, that shows she underwent an examination on that date.  She also submits a copy of page 3 of a DD Form 2808, dated 24 March 2004, that shows she was found qualified for service after diagnoses of flat feet, possible rheumatoid arthritis, and a mild hearing loss.

10.  A DA Form 3349, dated 24 March 2004, shows the applicant was issued a permanent physical profile of 114111 indicating that she had a medical condition of pes planus (flat feet).

11.  The applicant further submits copies of Radiology Reports, dated 9 April 2004 and 19 April 2005, respectively.  These reports show the applicant underwent radiological bilateral examinations of her feet.

12.  A DA Form 3349, dated 25 February 2005, shows the applicant was issued a permanent physical profile of 114111 indicating that she had medical conditions of rheumatoid arthritis, degenerative joint disease in feet, and flat feet. 
This DA Form 3349 was previously reviewed by the Board.

13.  A Standard Form 507, dated 25 February 2005, shows the Physical Review Board, Human Resources Command, St. Louis, Missouri, determined the applicant did not meet medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and was found not qualified for retention.

14.  In a memorandum, dated 28 February 2005, the applicant was advised that a review of available medical records revealed one or more medical conditions that disqualified her for retention in the USAR.  The conditions were rheumatoid arthritis, degenerative joint disease in feet, and flat feet.  She was further advised that she had the options of electing to be transferred to the Retired Reserve, electing to be discharged from the USAR, or electing consideration by a non-duty related PEB (NDR-PEB).  She was also advised that the NDR-PEB could not award disability compensation.

15.  On 7 March 2005, the applicant elected consideration of her medical disqualifications by an NDR-PEB, stating she did not concur with the findings of unfitness because she believed she was capable of performing her military duties satisfactorily despite her medically unacceptable medication condition.

16.  On 19 July 2005, an informal PEB convened and considered the applicant's disability of degenerative joint disease in her feet.  Based on a review of the medical records, the PEB concluded that the applicant's medical condition prevented satisfactory performance of duty in her grade and primary specialty.  The PEB found the applicant physically unfit and that her disposition be referred for case disposition under Reserve Component regulations.
17.  On 26 July 2005, the applicant did not concur with the findings and recommendations of the PEB and requested personal appearance before a formal PEB, stating she was able to perform within the limitations imposed by her physical disabilities.  

18.  On 22 August 2005, the applicant formally withdrew her demand for a formal hearing and indicated she concurred with the informal PEB decision.  She requested to be transferred to the Retired Reserve.

19.  A DA Form 3349, dated 1 September 2005, shows the applicant was issued a permanent physical profile of 114111 indicating that she had a medical condition of bilateral pes planus, degenerative joint disease, and plantar fasciitis. This DA Form 3349 was previously reviewed by the Board.

20.  On 22 September 2005, the applicant was advised that the PEB had determined her unfit for duty.  Based on the finding she was permanently medically disqualified and was required to be separated from the USAR.

21.  The applicant was honorably released from the USAR Control Group (Reinforcement) on 30 November 2005 by reason of medical disqualification.  She was transferred to the Retired Reserve.  Her Chronological Statement of Retirement Points indicates she had completed 15 years, 10 months, and 22 days of qualifying service for retirement.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that hereditary, congenital, and other conditions which existed prior to service frequently become unfitting through natural progression and should not be assigned a disability rating unless service-aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition known to be progressive was diagnosed or should have been diagnosed.

23.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

24.  In August 1998, the Office of the Chief, Army Reserve (OCAR) established a process to refer Soldiers of the Reserve Component who are pending separation for medical disqualification into the Disability Evaluation System.  The process was designed to give the soldier with a non-duty related impairment the option of requesting a PEB solely for the purpose of fitness determination but not a determination of eligibility for disability benefits.  OCAR noted that it is Department of Defense policy that Reserve Component members pending separation for medical disqualification are entitled to a fitness determination by each Service’s PEB when requested by the Soldier.

25.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.  

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of error or injustice in the applicant's physical evaluation process for her conditions.  The applicant has failed to show with the evidence submitted with this request for reconsideration and with the evidence of record that the NDR-PEB should be deleted or removed from her records.

2.  On 19 July 2005, a PEB found the applicant physically unfit due to the disability of degenerative joint disease in her feet.  She requested consideration by a PEB because she felt she was able to perform within the limitations imposed by her physical disabilities.  The PEB found her unfit and directed that her case disposition be considered under Reserve Component regulations.  On 22 August 2005, the applicant concurred with the PEB and requested transfer to the Retired Reserve.  The applicant was honorably released from the USAR Control Group (Reinforcement) on 30 November 2005 and transferred to the Retired Reserve based on her election.

3.  The applicant's Consultation Request/Report, Radiologic Consultations, medical records, and other documents provided were also carefully considered.  However, there is no indication that she was improperly found medically disqualified for a non-duty related condition.

4.  The medical information provided by the applicant also does not demonstrate that her release from active duty and from the USAR was incorrect.  She was medically evaluated, her medical boards were properly adjudicated, and she was separated in accordance within the Reserve Component guidelines in effect at the time.

5.  The medical documentation provided by the applicant was carefully considered.  However, there is no indication she incurred or aggravated her unfitting condition while in a qualifying duty status.  As such, the unfitting condition was properly not considered service related and, therefore, would not have supported her qualifying for a medical (physical disability) retirement.  In addition, at the time the applicant felt herself to be capable of performing her duties, a belief contradicting her current contention that she was so disabled as to have warranted a medical retirement.  Therefore, there is an insufficient evidentiary basis to support granting a medical retirement at this time.

6.  The overall merits of the case, including the latest arguments are insufficient as a basis for a reversal of the Board's previous decision.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080006745, dated 19 August 2008.



      _________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)                                         AR20090000180



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ABCMR Record of Proceedings (cont)                                         AR20090000180



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