IN THE CASE OF:	  

		BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090008450 


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 defers his request to counsel.  

2.  The applicant defers his statement to counsel.   

3.  The applicant provides additional documentary evidence through counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be medically retired with a 70-percent combined disability rating (60 percent for pulmonary embolism and 30 percent for ischemic colitis with chronic abdominal pain and bowel syndrome). 

2.  Counsel states that the applicant’s physical evaluation board’s (PEB) decision in this matter is based upon a mistake of the law under Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and that if the law had been applied correctly, a different decision, other than the fit by presumption determination, should have resulted.  Counsel submits a 6-page argument (Enclosure) in which he chronicles the applicant’s entry on active duty, diagnosis by a medical evaluation board (MEBD), rating by a PEB, his non-concurrence and rebuttal, and the PEB’s errors in following the law.  

3.  Counsel provides a copy of the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 20 October 2006; a copy of the applicant’s DA Form 3947 (Medical Evaluation Board proceedings), dated 24 October 2008; a copy of the applicant’s MEBD Narrative Summary (NARSUM), dated 9 October 2008; a copy of the applicant’s DA Forms 199 (Physical Evaluation Board (PEB) Proceedings), dated 31 October 2008 and 27 September 2009, and copies of various medical reports, memoranda for record, rebuttal statements, medical charts, consult sheets, and other medical related documents in support of the applicant’s request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was born on 18 November 1947 and was inducted into the Army of the United States on 24 September 1969.  He was trained in and held military occupational specialty (MOS) 96B (Intelligence Analyst).  He was honorably released from active duty on 19 August 1971 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) for completion of his Reserve obligation.

2.  The applicant’s records further show he enlisted in the USAR on 6 March 1978.  He subsequently executed several extensions and/or reenlistments in the USAR to include a 1-year reenlistment on 27 May 1988, two 6-year reenlistments on 4 February 1991 and 25 April 1996, and an indefinite reenlistment on 20 October 2003.  He attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 14 August 2005, the applicant was ordered to active duty for a contingency operations temporary tour of active duty (CO-TTAD) in support of Operation Iraqi Freedom and was subsequently assigned to the Mobilization Support Detachment, Morrow, GA, and attached to the U.S. Army Central Command (CENTCOM), MacDill Air Force Base (AFB), FL. 

4.  On 11 August 2006, the applicant was ordered retained on active duty to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Processing Program (MRP) for completion of medical care and treatment.  He was assigned to A Company, Warrior Transition Unit (WTU), Fort Benning, GA.

5.  The applicant’s records also show he was honorably released from active duty to the control of his USAR unit on 20 October 2006 by reason of completion of required active service.

6.  On 10 December 2007, the applicant was ordered to active duty for a contingency operation for active duty operations support (CO-ADOS) in support of Operation Enduring Freedom.  He was again assigned to CENTCOM, MacDill AFB, FL.  

7.  On 6 November 2007, by memorandum, the U.S. Army Reserve Personnel Command (now known as the U.S. Army Human Resources Command, or USAHRC, St. Louis, MO) notified the applicant’s commander that in accordance with Army Regulation 135-178 (Enlisted Administrative Separation), authority was granted to retain the applicant on active duty, beyond his 60th birthday     (18 November 2007), until 26 May 2008, to obtain 20 qualifying years of service for retired pay and that he would be reassigned to the Retired Reserve effective 27 May 2008.

8.  On or about 20 February 2008, the applicant was seen at the Patriot Clinic, MacDill AFB, for a numbing sensation that had turned painful throughout the weeks.  He had been diagnosed with cubital tunnel syndrome (left).  

9.  On or around 18 June 2008, the applicant was again seen at the Patriot Clinic in reference to severe inflammatory bowel disease.  He was diagnosed with ischemic colitis.

10.  In October 2008, the applicant underwent various medical examinations, evaluations, and tests.  A subsequent NARSUM, dictated on 9 October 2008, was prepared and shows he was diagnosed with ischemic colitis with chronic abdominal pain and bowel dysfunction, pulmonary embolism with IVC (Inferior Vena Cava) filter and Coumadin therapy, obstructive sleep apnea, and cubital tunnel syndrome, all medically non-acceptable, as well prostate cancer, nephrolithiasis, hypertension, hyperlipidemia, psoriasis, and gastroesophageal reflux disease (GERD), all medically acceptable.  The attending physician indicated that the applicant should be referred to the Physical Disability Evaluation System (PDES). 

11.  On 24 October 2008, a MEBD convened at Fort Benning, GA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant was diagnosed as having the non-medically acceptable conditions of ischemic colitis with chronic abdominal pain and bowel dysfunction, pulmonary embolism with IVC filter and Coumadin therapy, obstructive sleep apnea, and cubital tunnel syndrome, and the medically-acceptable conditions of prostate cancer, nephrolithiasis, hypertension, hyperlipidemia, psoriasis, and GERD.  The MEBD recommended that he be referred to a PEB.  The applicant concurred with the MEBD’s findings and recommendations; however, he did not make an election regarding his desire to continue on active duty.  

12.  On 31 October 2008, an informal PEB convened at Fort Sam Houston, TX, and determined that the applicant was fit by presumption.  This rule applies because the applicant’s medical condition did not cause his career to end prior to reaching retirement eligibility.  He requested and was approved for retention beyond age 60 in order to achieve 20 qualifying years for non-regular retirement. He reached retirement year eligibility on 30 May 2008 and was therefore eligible for retired pay on that date.  His MEBD was dictated on 9 October 2008 and his medical condition did not meet the Department of Defense Instructions (DODI) 1332.38, E3.P3.5.4. rules for overcoming the presumption of fitness.  Therefore, the PEB determined the fit by presumption rule applies.  On 17 November 2008, the applicant indicated that he did not concur with the PEB’s findings and recommendations and demanded a formal hearing of his case.  

13.  On 27 January 2009, a formal PEB convened at Fort Sam Houston, TX, with the applicant and his counsel present.  During the formal PEB, the applicant contended that the presumption of being fit did not apply due to the acute onset and serious nature of his condition.  He reported acute onset of pulmonary emboli in March 2008 associated with lower extremity edema requiring an ongoing use of Coumadin.  He also had an IVC filter inserted on 9 July 2008 when Coumadin was discontinued due to GI (gastro-intestinal) bleeding.  Despite the presence of the filter, he experienced a recurrence of pulmonary embolism in July 2008 which required that Coumadin be restarted and continued indefinitely. The applicant denied pulmonary symptoms at the time but was concerned about the possible problems associated with long–term Coumadin therapy.  In April 2008, he reported onset of abdominal symptoms initially thought to reflect Crohn’s disease.  These symptoms required inpatient evaluation in July 2008 and the diagnosis of ischemic colitis was made.  

14.  The formal PEB found the applicant’s condition met the criteria for fit by presumption.  The applicant did not, at the time, reflect a grave illness that prevented him from performing further duty if he were not retiring nor did he overcome the presumption in accordance with DODI 1332.38, sections E3.P3.5.3.2. or E3.P3.5.3.3.

15.  On 6 February 2009, the applicant again indicated that he did not concur and submitted a rebuttal explaining why he did not agree.  He again argued, through counsel, that the PEB’s decision was based upon a mistake of law and that if the PEB had applied the law correctly, a different decision would have resulted.  

16.  On 9 February 2009, the PEB reviewed the applicant’s rebuttal and after a careful consideration, the PEB found that the rebuttal did not contain any objective medical or performance evidence which would have warranted a change to the original finding.  The application of the presumption of fitness rule was correctly applied and there was no mistake of law.  Based on the applicant’s retirement eligibility in May 2008, he entered the presumption of fitness period prior to the dictation of his NARSUM and the fact that he was extended to obtain 20 “good years” of service did not change the fact that he was fit by presumption.  Additionally, although he was diagnosed with ischemic colitis with chronic abdominal pain and bowel dysfunction, pulmonary embolism with IVC filter and Coumadin therapy, and obstructive sleep apnea, the rule applied because within the presumptive period he did not have an acute, grave illness or injury that would have prevented him from performing further duty if he were not retiring nor did he have a serious deterioration of a previously-diagnosed condition.  Based on his testimony and his case file, his condition did not result in overcoming the presumption of fitness rule.

17.  On 20 February 2009, the U.S. Army Physical Disability Agency (USAPDA) noted the applicant’s disagreement with the PEB and reviewed his entire case.  The USAPDA concluded that the applicant’s case was properly adjudicated through the PEB which correctly applied the rules that govern the PDES in making a determination.  The USAPDA concurred with the response provided by the PEB and affirmed the PEB’s findings and recommendations as supported by substantial evidence.  

18.  On 23 May 2009, the applicant was honorably released from active duty to the control of his USAR unit by reason of completion of his required period of active service.  He was subsequently transferred to the Retired Reserve on 24 May 2009. 

19.  An advisory opinion was received from the USAPDA on 18 September 2009. A USAPDA official recommended no change to the applicant's military records and after providing a chronology of his MEBD and PEB, he added that:

	a.  the applicant's mandatory retirement date was 30 May 2008.  Accordingly, his presumption period began one year before that date, on 30 May 2007.  Since the applicant's MEBD was not completed until October 2008, the applicant was required to enter disability processing in accordance with the Presumption of Fitness rule.  When the presumption applies, the PEB is required to review each condition to see if it meets any of the three criteria which would overcome the presumption.  If the presumption is overcome for a condition, then that condition is not automatically found unfit, but is then considered only for the normal fit/unfit findings as if the presumption did not apply.  Only conditions that overcome the presumption are further reviewed.  The overcoming of the presumption in one condition does not result in the overcoming of the presumption in all the remaining conditions.  The PEB found that none of the applicant's conditions met any of the three criteria for overcoming the presumption.  The applicant claims that his pulmonary embolism overcame the presumption because it met the criterion of being an acute and grave condition incurred within the presumption period.  There is no evidence in the case file that supports any of the other conditions meeting any of the criteria that would overcome the presumption on those conditions;

	b.  the PEB should have found that the applicant overcame the presumption of fitness for his condition of pulmonary embolism based upon it being an acute and grave condition incurred during the presumptive period.  However, the PEB results would have remained unchanged as there were no residuals remaining from that condition that would have significantly affected his ability to perform his assigned duties.  Although the applicant was removed from his duties after his hospitalization; the removal was due to all of the applicant's conditions combined that made him unable to perform.  If the only condition he had was being on   anti-coagulation therapy, he would still have been able to perform his USCENTCOM duties as an SFC database researcher in support of intelligence operations as shown on his last regular evaluation report ending in November 2007 that described his duties.  The possible inability to deploy does not result in a mandatory finding of unfitness and the mere presence of impairment does not by and of itself justify a finding of unfitness.  His condition of colitis did not overcome the presumption and was properly not considered for regular unfitness or compensation; and

	c.  the PEB’s findings of no compensability for the applicant's conditions was legally correct and is supportable by the preponderance of evidence.

20.  On 18 September 2009, the applicant was furnished with a copy of the advisory opinion; however, he did not respond.

21.  Army Regulation 635-40 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 PEB.

22.  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 Veterans Affairs Schedule for Rating Disabilities (VASRD).  DODI 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.

23.  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.

24.  DODI 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating Service members because of physical disability; making administrative determinations for service members with Service-incurred or Service-aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.

25.  Section E3.P3. of DODI 1332.38 provides for the standards for determining unfitness due to physical disability or medical disqualification.  A service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation.  In making a determination of a member’s ability to so perform his/her duties, the following criteria may be included in the assessment: the medical condition represents a decided medical risk to the health of the member or to the welfare of other members were the member to continue on active duty or in an Active Reserve status; the medical condition imposes unreasonable requirements on the military to maintain or protect the member; or the service member’s established duties during any remaining period of Reserve obligation.

26.  Section E3.P3.5 provides for presumption of fitness and reflects the following:

	a.  Sub-section P3.P3.5.1 states that except for service members previously determined unfit and continued in a permanent limited duty status, service members who are pending retirement at the time they are referred for physical disability evaluation enter the DES under a rebuttable presumption that they are physically fit.  The DES compensates disabilities when they cause or contribute to career termination.  Continued performance of duty until a service member is approved for length of service retirement creates a rebuttable presumption that a service member’s medical conditions have not caused career termination;

	b.  Sub-section E3.P3.5.2. (Presumptive Period) states that service members shall be considered to be pending retirement when the dictation of the member’s MEBD occurs after any of the circumstances designated in selected paragraphs (E3.P3.5.2.1. through E3.P3.5.2.4.).

	c.  E3.P3.5.3.  The presumption of fitness rule shall be overcome when:

		(1)  E3.P3.5.3.1. Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or

		(2)  E3.P3.5.3.2. Within the presumptive period a serious deterioration of a previously-diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or

		(3)  E3.P3.5.3.3. The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period.  When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through counsel, contends that he should be medically retired with a 70-percent combined disability rating.  

2.  The applicant was born on 18 November 1947 and reached age 60 on 18 November 2007.  However, at the time he did not have sufficient qualifying years of service for non-regular retirement.  Accordingly, he requested and was granted authority to remain on active duty beyond his 60th birthday, through May 2008, the date he attained retirement eligibility.  

3.  The applicant underwent various medical evaluations and/or examinations in 2008.  A NARSUM, dictated on 8 October 2008, diagnosed him with various medically-nonacceptable conditions.  He subsequently underwent an MEBD that referred him to a PEB.  The PEB found him fit under the presumption of fitness.  He disagreed and subsequently appeared before a formal PEB that also found his condition met the criteria for fit by presumption as he did not, at the time, reflect a grave illness that prevented him from performing further duty if he were not retiring nor did he overcome the presumption in accordance with the DODI.  The applicant again disagreed and submitted a rebuttal explaining why he did not agree.  
4.  The PEB reviewed the applicant’s rebuttal and after a careful consideration, the PEB found that the rebuttal did not contain any objective medical or performance evidence which would have warranted a change to the original finding.  The USAPDA reviewed the entire case, noted his disagreement, agreed with the PEB, and affirmed the PEB’s findings and recommendations as supported by substantial evidence.  

5.  The presumption of fitness rule was correctly applied.  Based on his May 2008 retirement eligibility, he entered the presumption of fitness period prior to the dictation of his NARSUM.  Additionally, although he was diagnosed with ischemic colitis with chronic abdominal pain and bowel dysfunction, pulmonary embolism, and obstructive sleep apnea, the rule applied because within the presumptive period, he did not have an acute, grave illness or injury that would have prevented him from performing further duty an SFC database researcher in support of intelligence operations if he were not retiring nor did he have a serious deterioration of a previously-diagnosed condition.  Based on his testimony and his case file, his condition did not overcome the presumption of fitness rule.

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.
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ABCMR Record of Proceedings (cont)                                         AR20090008450



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