IN THE CASE OF:	  

		BOARD DATE:	    29 April 2010

		DOCKET NUMBER:  AR20090015968 


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 his U.S. Army Reserve (USAR)
non-duty related (NDR) separation due to medical disqualification be changed to a disability separation.  

2.  The applicant states that his retirement orders indicate he was "Medically Disqualified - Not Result of Own Misconduct."  However, his disqualification developed in line of duty (ILOD).  His medical problems did not exist prior to service, they were found during his period of service through medical physicals and visits to the doctor.  His ability to serve was affected by those medical conditions.  His medical conditions developed during his period of service and were determined by Army Regulations (AR) and medical boards to be the reason for his disqualification for further service; therefore, he requests correction of the decision previously rendered in his case because the disqualifying conditions were not due to his own fault or misconduct.  He also states that since some of these records may not have been available at the time of the decision, he requests correction of his records per the information submitted in support of his request.

3.  The applicant provides various medical documents, records of medical care, physical profiles, sick call slips, consult sheets, reports of medical examinations, body fat content worksheets, lab referral reports, clinical records, and other medically-related documents dated on various dates throughout his period of military service in the 1990s and 2000s, in support of his request.  


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 4 May 1962 and enlisted in the USAR on 26 August 1985.  He served through multiple reenlistments or extensions in the USAR, held various military occupational specialties (MOSs) including MOS 91E (Dental Specialist) and MOS 71G (Patient Administration Specialist), and attained the rank/grade of first sergeant (1SG)/E-8.  He was assigned to the 4209th U.S. Army Hospital, Lexington, KY.

2.  On 9 March 2003, he appeared before an MOS/Medical Retention Board (MMRB) that convened at the 81st Regional Support Command (RSC), Birmingham, AL, to evaluate his ability to perform the physical requirements of his MOS.  The MMRB recommended placing him on a 30-day probationary period for a potential upgrade of his P-3 profile to a P-2.  Specifically, he needed an EKG (Electrocardiogram), a pulmonary function study, a measure of his blood pressure, enlarged heart, asthma, and any other restrictions.

3.  It is unclear if he submitted the required tests/studies subsequent to the MMRB; however, on 3 April 2003, by memorandum from the 81st RRC, he was notified that after a thorough review of his most recent physical profile, dated 26 February 2003, and all other pertinent records and reports, the MMRB recommended his P-3 profile be upgraded by his unit and that he be retained in his primary MOS.  His medical condition did not preclude satisfactory performance of PMOS physical requirements in a worldwide field environment.  

4.  On 8 June 2003, he was issued a permanent physical profile that assigned him a "2" in the P (Physical capacity or stamina) and the L (Lower extremities) of his Military Physical Profile Serial System (PULHES).  The profile listed the medical conditions of asthma (controlled), hypertension (controlled), and assigned the functional limitations of no intense running or pushups.  

5.  On 1 August 2005, he was issued a permanent physical profile that assigned him a "3" in the P and the U (Upper extremities) of his PULHES.  The profile listed the medical conditions of asthma, allergies and bronchitis, hypertensive heart disease, upper back pain, and knee arthritis, and assigned the functional limitations of no overseas assignments without definitive care, and no running, marching, or a carrying a rucksack.  It also stated that he needed to submit medical documentation, pulmonary function testing, and Army Physical Fitness Test (APFT) card for processing under AR 40-501 (Standards of Medical Fitness) for asthma and upper back pain.


6.  On 22 September 2005, by memorandum, the 81st RSC Command Surgeon notified the applicant that a review of the medical records he submitted indicated he did not meet retention standards of AR 40-501 for asthma and upper back pain.  He was also advised that Soldiers who were medically disqualified and were pending separation for non-duty related impairment could request a physical evaluation board (PEB) solely for the purpose of fitness determination; however, Soldiers were not eligible for disability benefits for non-duty related impairments.  He was further instructed to return an option selection memorandum through his chain of command.

7.  His option selection memorandum is not available for review with this case.  However, along with the notification, he would have been required to acknowledge the notification and elect one of the following options on the notification of medical unfitness for retention and election of options, in accordance with AR 135-178 (Enlisted Administrative Separations):

	a.  request reassignment to the Retired Reserve in accordance with 
AR 140-10 (Assignments, Attachments, Details, and Transfers), if he had completed 20 years of qualifying service; or

	b.  request an honorable discharge from the USAR; or

	c.  request consideration by a non-duty related (NDR) PEB which is limited to fitness determination; it cannot award disability compensation.  During an NDR-PEB a permanent disqualification is placed on the Soldier’s records to prevent the Soldier from performing active military service until the issue is resolved.

8.  On 10 November 2005, the U.S. Army Human Resources Command, St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60 
(20-year letter).  This letter notified him that he had completed the required years of qualifying Reserve service for retired pay on application at age 60.

9.  Copies of his Narrative Summary (NARSUM) and medical evaluation board (MEBD) proceedings are not available for review with this case.

10.  On 9 November 2006, an informal PEB convened at Fort Sam Houston, TX, and determined he was unfit for further service.  His physical profile for asthma, hypertension and cardiomyopathy permitted no functional activities and no APFT aerobic event.  His case was adjudicated as a non-duty-related case under the provisions of Department of Defense (DOD) Directive 1332.18, paragraph 3.3 and DOD Instructions (DODI) 1332.38, Part II, paragraph E3.P2.3.  The PEB recommended a referral of his case for disposition under an appropriate Reserve Component (RC) regulation.
11.  On 17 November 2006, he elected not to concur with the findings and recommendations of the PEB, demanded a formal hearing without a personal appearance, and requested counsel be appointed to represent him.  

12.  The facts and circumstances of his formal hearing are not available for review with this case.

13.  On 31 January 2007, Headquarters, Army Reserve Medical Command, Pinellas Park, FL, published Orders 07-031-00051, releasing him from his current assignment and transferring him to the Retired Reserve by reason of medical disqualification, effective 2 March 2007.

14.  His ARPC Form 249-E (Chronological Statement of Retirement Points) shows he completed 20 years of qualifying service toward non-regular retirement.  This form further shows that from 1994 through 2007, he did not have more than 39 days of active service per retirement year and never more than 60 inactive duty points.  From 2005 through his retirement in March 2007, he did not perform any active or inactive duty service.

15.  An advisory opinion was obtained on 2 March 2010 in the processing of this case.  An official at the U.S. Army Physical Disability Agency (USAPDA) recommended no change to the applicant's records.  The official stated the applicant was selected for separation by the USAR because he was found medically disqualified due to several non-duty/non-service related medical conditions.  None of his conditions were found to have been ILOD conditions and the PEB reviewed these conditions for fitness for duty determination; not for entitlement to any compensation or disability rating.  Since he had no ILOD findings for his conditions he was not authorized PEB duty related disability processing.  If he now believes his conditions should have been officially found to have been incurred ILOD by his unit, his case should be reviewed by the USAR as the USAPDA had no authority to make such LOD findings.  Nevertheless, the USAR actions in separating him appear to be correct based on the available evidence.  Diseases incurred or manifested while an RC Soldier, but not caused by or permanently aggravated by military service are not considered service-connected or ILOD.  There appears to be no error in the processing of his case.

16.  He was provided a copy of this advisory opinion on 4 March 2010 and he submitted a rebuttal on 1 April 2010 wherein he stated that he previously suffered an injury to the lower abdomen in 1995 and he has been trying to get additional medical records from his unit.

17.  He submitted copies of various medical documents, records of medical care, physical profiles, sick call slips, consult sheets reports of medical examinations, body fat content worksheets, lab referral reports, clinical records, and other medically-related documents dated on various dates throughout his military service in the 1990s and 2000s.  Specifically:

	a.  A pulmonary function test, dated 27 December 2005, that shows he had a mild obstruction which was masked by the existence of a restrictive disease.

	b.  A Standard Form 600 (Chronological Record of Medical Care), dated 26 July 2005, showing a diagnosis of bronchial allergic asthma. 

	c.  An undated statement from the Veterans Affairs (VA) Center, Lexington, KY, showing he was a patient of the VA Allergy Clinic due to bronchial asthma.

	e.  A DD Form 669 (Individual Sick Slip), dated 14 October 1995, showing respiratory problems.

	f.  A Standard Form 513 (Consultation Sheet), dated 2 September 1994, showing he had hypertension.

	g.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 17 August 1995, showing he had left lower quadrant abdominal pain.

18.  AR 135-178 prescribes the policies for the separation of enlisted Soldiers from the RCs.  Chapter 15 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness.

19.  AR 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.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement or severance pay benefits.  One of the criteria is that the disability must have incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  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.  


20.  DOD 1332.18 covers separations or retirement for physical disability. Paragraph 3.3 states that the sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank or rating because of disease or injury.  Any member of the Ready Reserve who is pending separation for a non-duty related impairment or condition shall be afforded the opportunity to enter the PDES for a determination of fitness.  If determined fit, the Secretary concerned may deem the member medically qualified for retention in the Ready Reserve in the specialty for which he was found fit.

21.  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.  Paragraph E2.P2.3 states members of the Ready Reserve with NDR impairments, and who are otherwise eligible, will be referred into the PDES upon the request of the member or when directed under service regulations.  Referral will be solely for a determination of fitness for duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his USAR NDR separation due to medical disqualification should be changed to a disability separation.  

2.  The available evidence shows the applicant was found physically unfit for further service based on a medical condition.  Accordingly, he was notified of this finding and the options available to him.  His record is void of the acknowledgement of notification of medical unfitness for retention and election of options.  However, the presence of a PEB indicates he may have elected consideration by an NDR-PEB.  An NDR-PEB is limited to fitness determination; it cannot award disability compensation.  During an NDR-PEB, a permanent disqualification is placed on the Soldier’s records.  This prevents the Soldier from performing any active military service until the issue is resolved.

3.  He was considered by an NDR-PEB and he was found medically unfit for retention.  He did not concur with findings and elected a formal hearing.  But, again, his record is void of a formal PEB or the supporting evidence he provided 

after he had elected not to concur.  Nevertheless, in the absence of evidence to the contrary, it is presumed that the findings of the NDR-PEB were confirmed during the formal hearing and his case was referred to the USAR for disposition.  He was ultimately discharged from the USAR and transferred to the Retired Reserve on 2 March 2007.

4.  The applicant did not have asthma or asthma related conditions during his active service in 1991.  He ultimately developed symptoms of asthma while in the active Reserve but his condition was not deemed to be ILOD.  He was found unfit because of asthma and back pain the same year he received his 20-year letter.  In November 2006, an informal PEB found his physical profile for asthma, hypertension, and cardiomyopathy permitted no functional activities.  He appears to have requested an NDR-PEB which confirmed these were an unfitting conditions.  He was transferred to the Retired Reserve.

5.  The available evidence also shows that from 1994 through 2007 he did not have more than 39 days of active duty service per retirement year and never more than 60 inactive duty points (the equivalent of one 3-day weekend a month).  There is insufficient evidence to show his nonfitting medical conditions were incurred during those times. 

6.  Despite the lack of several documents, his separation by the USAR appears to be correct based on the available evidence.  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)                                         AR20090015968



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ABCMR Record of Proceedings (cont)                                         AR20090015968



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