DOCKET NUMBER:  AR20090003512 


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 correction of his records to show he was medically discharged instead of honorably discharged.

2.  The applicant states that he was diagnosed with schizophrenia and major depressive episode; however, he was not allowed appearance before a medical evaluation board (MEBD) within 60 days of signing of the DA Form 3349 (Physical Profile) as required by Army Regulation 600-60 (Physical Performance Evaluation System).  He adds that the MEBD proceedings were initiated on 16 January 2003; yet, as of 1 July 2003, he had not been notified of a time frame for the board.  He also adds that he would have lost his school scholarship opportunity if he had continued his military service as he was slated to begin school within a month of his original expiration of his term of service (ETS).

3.  The applicant provides a copy of a memorandum, dated 22 January 2003, from the Fort Hood, TX, Medical Department Activity (MEDDAC); a copy of his DA Form 3349, dated 4  March 2003; a copy of a memorandum, dated 1 July 2003, subject:  Termination of Medical Evaluation Board [Applicant]; a copy of his DD Form 2808 (Report of Medical Examination), dated 6 March 2003; and a copy of a letter from the Deputy Adjutant General of III Corps, Fort Hood, TX, to the applicant's Member of Congress in support of his 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 records show he enlisted in the Regular Army for a period of 4 years on 21 May 1998.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 98C (Signal Intelligence Analyst).  The highest rank/grade he attained during his military service was sergeant/E-5.

3.  The applicant's medical records are not available for review with this case; however, the applicant submitted a copy of a memorandum, dated 22 January 2003, authored by the Physical Evaluation Board Liaison Officer (PEBLO), Patient Administration Division, MEDDAC, Fort Hood, TX, in which she notifies the applicant's immediate commander that the applicant was undergoing physical disability processing and that other documents were required and appointments scheduled to complete his processing.

4.  On 7 February 2003, the applicant was issued a permanent physical profile due to left foot degenerative joint disease and neuropathy.

5.  On 6 March 2003, the applicant underwent a medical examination at Fort Hood, TX, and was diagnosed with various medical conditions.  A copy of the narrative summary of this medical examination is not available for review with this case.

6.  On 1 July 2003, the applicant consulted with his PEBLO and was advised of the rights and advantages of remaining on active duty beyond the scheduled ETS date for the purpose of completion of hospital care and/or physical disability evaluation under the provisions of the law.  He was also advised that if he elected to be discharged or released from active duty as scheduled, he would not, after such discharge or release from active duty, be eligible for separation or retirement for physical disability.  Following consultation with his PEBLO, the applicant elected not to be retained on active duty beyond the scheduled ETS date.

7.  On 1 July 2003, and subsequent to his election not to be retained on active duty, the PEBLO notified the applicant's commander that the applicant had been thoroughly counseled concerning his rights to remain on active duty to complete his physical disability processing and elected not to remain and that as a result of this action, the MEBD was terminated.

8.  On 20 July 2003, the applicant was honorably released from active duty under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations) by reason of completion of his required active service.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his military service obligation.

9.  Army Regulation 600-60 (Physical Performance Evaluation System) covers the Physical Performance Evaluation System (PPES) requires Active Army, Army National Guard of the United States, and United States Army Reserve Soldiers with a permanent profile containing a 3 or 4 in one of the profile serial factors to be evaluated by an administrative screening board designated as the MOS Medical Retention Board (MMRB).  This evaluation is to determine if Soldiers can perform satisfactorily in their primary occupational specialty or specialty code in a worldwide field environment.  This regulation gives the duties and procedures of the MMRB.  It also gives the procedures for processing the decision of the MMRB convening authority to recommend a Soldier for medical reclassification or to refer the Soldier into the Physical Disability Evaluation System (PDES) or the Reserve Component medical disqualification process, as applicable.  Soldiers will appear before an MMRB within 60 days from the date the DA Form 3349 is signed by the appropriate approving authority.

10.  The PPES is a program designed to evaluate Soldiers with a permanent numerical designator of 3 or 4 (hereafter referred to as a permanent 3 or 4 profile) in one of the profile serial factors based on their physical ability to perform their duties in a worldwide field or austere environment and recorded on DA Form 3349 (Physical Profile).  The PPES establishes the MMRB as an administrative screening board to make this evaluation. This screening system ensures continuity of effort among commanders, doctors, personnel managers, and the PDES.  It provides the MMRB convening authority with increased flexibility to determine a Soldier’s deployability, reclassification potential, or referral into the PDES (or processing for medical disqualification as applicable to certain Reserve Component cases).

11.  The MMRB evaluation process will not be used as a quality assessment of leadership, degree of technical skill, or promotion potential.  The MMRB recommendations will only be based on an enlisted Soldier’s or warrant officer’s 

physical ability to reasonably perform the duties of his or her primary MOS or of an officer’s physical ability to perform in his or her branch or area of concentration or functional area.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  It provides for MEBDs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

13.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge should be changed to a medical discharge.

2.  The MMRB is an administrative screening board charged with the responsibility to evaluate a Soldier's ability or inability to physically perform duties required of his/her MOS in a worldwide field environment.  The MMRB is not part of the PDES but is a feeder into it.  It appears the applicant has confused the requirements to appear before an MMRB (Army Regulation 600-60) with MEBD proceedings (Army Regulation 635-40).
3.  There is no evidence in the available records and the applicant did not provide any evidence that shows he was diagnosed with schizophrenia.  However, it appears that the applicant suffered an injury and/or a disease that warranted his entry into the PDES.  During the course of his disability evaluation, he approached his ETS date and was accordingly counseled regarding the rights and advantages of remaining on active duty beyond the scheduled date for the purpose of completion of hospital care and/or physical disability evaluation under the provisions of the law.  He elected not to remain on active duty, which subsequently terminated his MEBD.

4.  There is no evidence in the available records and the applicant did not submit any substantiating evidence that shows he underwent an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

5.  Even if an MEBD was held, there is no regulatory requirement for the applicant to be physically present.  The purpose of the MEBD is to evaluate the Soldier's medical condition(s) as diagnosed during a medical examination to determine if they do or do not meet the medical retention standards of Army Regulation 40-501, document a Soldier’s medical status and duty limitations, and refer Soldiers to a PEB.

6.  The PEB is established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  The Army must find that a Soldier is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before the Soldier can be medically retired or separated.

7.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.   The applicant has not shown error, injustice, or inequity for the relief he requests.


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)                                         AR20090003512



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ABCMR Record of Proceedings (cont)                                         AR20090003512



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