BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100007567 


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 record as provided by counsel.

2.  The applicant states he has reviewed his counsel's memorandum that was submitted in support of his application and he concurs with its contents:

	a.  He adds he served in support of Operation Iraqi Freedom from 20 March through 5 September 2003.  During this period of service he was exposed to hostile attacks and witnessed numerous military and civilians being wounded and killed.

	b.  While serving in Iraq his right ankle began to bother him and he sought medical care; however, the care was limited due to austere conditions.   He performed his duties as best as he could.

	c.  After leaving Iraq he was involved in a Department of the Army Inspector General investigation into the conditions and management of Abu Ghraib prison.

	d.  Upon returning to the United States, he underwent evaluation of his right ankle and other medical conditions that were bothering him.  The physicians determined his right ankle required extensive treatment and surgery.  He was not given any significant duties to perform, and he did not perform duties in the grade of O-6 from October 2003 until his retirement from the U.S. Army Reserve (USAR).

	e.  Within 6 months of returning to the United States, he began to experience mental health symptoms that he now understands to be related to post traumatic stress disorder (PTSD).  The symptoms led him to seek help at the mental health clinic, West Point, NY, where he briefly saw a social worker who provided no treatment or follow-up care.

	f.  He states at the time of his Medical Evaluation Board (MEB), he had undergone two surgeries, walked with a cane, and wore an ankle immobilizing brace "Arizona Brace."  He adds he could not climb stairs or walk for any significant distance without experiencing serious pain.

	g.  He adds that his mental health symptoms did not improve and he sought care from the Department of Veterans Affairs (VA).  He was prescribed anti-depressants and anti-anxiety medications, and he was taking the medications when the Physical Evaluation Board (PEB) determined he was fit for duty.

	h.  He has undergone nine surgeries, including the fusion of his ankle bones.  He will undergo surgery for his shoulder condition and he continues to suffer from PTSD.  The VA has rated him 70% disabled.  He walks with a cane and limp and he always will.  He is preparing to apply for a 100% disability rating because he is unemployable.

3.  The applicant provides evidence as identified by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's records by:

   a.  Voiding the PEB's finding of fit for duty.
   
   b.  Administratively reinstating the applicant to active duty for MEB/PEB processing or, in the alternative, a finding that he is 70% permanently disabled (as determined by the VA).
   
   c.  Placing the applicant on the permanent disability retired list.
   
   d.  Paying the applicant all back-pay, allowances, retirement, and other benefits to which he is entitled.

2.  Counsel states the applicant served in the Army with honor and distinction for 30 years and he is now severely disabled by injuries and medical conditions that were incurred in the line of duty.  Additionally, he states:

	a.  The applicant was unlawfully denied medical retirement by the PEB despite clear and compelling evidence he suffered from several serious, unfitting medical conditions, and he has undergone surgeries for some of the conditions, as well as testing positive for tuberculosis in 2003.

   b.  The applicant had not performed military duties of his grade nor his military specialty for approximately 10 months prior to his MEB and he was in a VA hospital recovering from ankle fusion.

   c.  The PEB arbitrarily and capriciously determined the applicant failed to overcome the "presumption of fitness" rule applicable to officers who are within
1 year of mandatory retirement. 

   d.  Counsel provides the following background on the applicant's military service when he was ordered to active duty in support of the Global War on Terrorism:

       (1)  The applicant deployed to Camp Doha, Kuwait, on 5 December 2001, and assumed command of the 800th Military Police Brigade (Forward).  He entered Iraq on 20 March 2003 with Seabees [Construction Battalions (CBs) of the U.S. Navy] and the First Marine Expeditionary Force, and he established an Enemy Prisoner of War facility at Camp Bucca.
   
       (2)  Counsel recounts many of the applicant's combat experiences that the applicant summarized in his statement.

       (3)  While serving in Iraq, the applicant experienced severe pain in his right ankle and was treated by medical personnel several times.

       (4)  During redeployment screening, the applicant noted that he was not experiencing symptoms of combat stress disorder.  However, approximately
6 months later, the applicant began experiencing symptoms of PTSD.

       (5)  On 5 September 2003, he underwent a physical examination at Fort Drum, NY, and was advised to go to a VA Medical Center for treatment.  Medical officials at the VA Medical Center, Northport, NY, determined he had medical conditions requiring surgery and extensive treatment [right ankle, right hand, and left trigger finger pain].  He received treatment from 18 September 2003 through 16 October 2006.  A VA medical report, dated 12 December 2003, noted the applicant was "not fit for duty."  

       (6)  The applicant was returned to duty in the Active Duty Medical Extension (ADME) program, effective 25 November 2003.
       (7)  Command memoranda, dated 13 May and 24 August 2004, that was written to the PEB indicate the applicant was physically evaluated and, on 
24 November 2003, placed on ADME, removed from his tenured position, and detailed as a project officer.  The memoranda also indicate..."[due to the applicant's medical condition/physical limitations] he is unable to perform the duties of deputy commander and as a colonel in the Military Police Corps."
   
       (8)  The Narrative Summary (NARSUM), prepared on 20 September 2004 by an Army medical doctor for the purposes of the applicant's MEB shows the applicant did not meet medical retention standards for both ankles, both shoulders, bilateral thumb basal joints and it included nine separate medical conditions.  The recommendation was referral to a PEB for further adjudication.

       (9)  The applicant submitted a rebuttal to the MEB NARSUM noting several important errors in the document.

       (10)  On 16 February 2005, the PEB considered the applicant's case and determined he was fit for duty.  

       (11)  The PEB noted the applicant's mandatory removal date (MRD) was 
17 August 2004 and he entered the presumptive period on 17 August 2003.

       (12)  The PEB stated the applicant entered the Physical Disability Evaluation System after he was already processing for, or within 12 months of retirement/ separation for other than physical disability reasons and that he satisfactorily performed his duties commensurate with his grade and specialty until then.

       (13)  The PEB cited the applicant's Officer Evaluation Reports (OERs) through June 2004 that reflect consistently outstanding performance.  It also noted the applicant had not suffered any acute, life-threatening illness while in the presumptive period sufficient to overcome the "presumption of fitness."

       (14)  The PEB findings were approved on 16 March 2005.

   e.  Counsel states, at the time of the PEB, the applicant had undergone three surgeries; two to his right ankle and one on his left index finger.  Counsel adds the applicant's medical conditions were unstable at the time, he was under continued evaluation and treatment, and he had undergone numerous other surgeries for medical conditions that the PEB determined were not unfitting.
He adds the applicant is currently rated 70% disabled by the VA.

   f.  Counsel cites the law governing the Army Board for Correction of Military Records, along with several relevant Federal court rulings.
   
   g.  Counsel asserts the PEB finding of fit for duty was erroneous and unjust.  He cites Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 3 (Policies), paragraph 3-2(b)(2), that discusses the presumption of fitness applied to Soldiers being processed for separation or retirement for reasons other than physical disability.  Counsel states:
   
       (1)  The PEB relied exclusively on the applicant's OERs for its determination that he failed to overcome the "presumption of fitness."
   
       (2)  The VA medical report indicated he was "not fit for duty" while he was in the "presumptive period" as did the two command memoranda submitted to the PEB.

       (3)  The MEB NARSUM was based on a physical examination dated
2 June 2004 and a focused examination on 24 September 2004.  It also indicated the applicant underwent arthroscopy surgery on this right ankle in December 2003 and an emergency arthroscopy in January 2004, both while he was in the "presumptive period."

       (4)  The PEB did not adequately review the record or adhere to the regulation.  The evidence shows the applicant was physically unable to perform his duties, which was sufficient to overcome the presumption of fitness that "[a]n acute, grave illness or other injury or other significant 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 applicant] unfit for further duty [counsel's emphasis]."  He concludes the PEB misapplied the governing provision of the regulation.
   
   h.  Counsel asserts the Army failed to reevaluate the applicant as required by AR 635-40, chapter 4 (Eligibility for Disability Evaluation), paragraph 4-16, which requires that a Soldier who is hospitalized while undergoing disability evaluation or awaiting final disposition must be evaluated to decide if his or her condition may change the findings or recommendations of the PEB.  Additionally counsel states:
   
       (1)  The applicant was hospitalized on eight occasions and had eight surgeries between 20 September 2004 and 16 February 2005.
   
       (2)  If the PEB had directed reevaluation, the applicant's PTSD would have been identified as another unfitting condition.

       (3)  AR 635-40, paragraph 4-18(b), provides that the PEB should have returned the case to the medical treatment facility (MTF) for additional evaluation.  The PEB should have stayed the applicant's processing pending further evaluation and applied the VA rating codes.

   i.  Counsel concludes by stating the PEB perpetrated a grave injustice by finding the applicant fit for duty because the evidence demonstrates beyond any reasonable doubt that the applicant is entitled to a 70% disability rating and placement on the permanent disability retired list.

3.  Counsel provides an 18-page legal brief, along with 4 enclosures, which include copies of the applicant's statement, his medical records (during the "presumptive period" and his ankle fusion surgery).  Counsel also provides a statement from Colonel Brian J. C-----, Deputy Command Surgeon, dated 
16 April 2008, that offers a personal account of various hostile fire incidents the applicant experienced while in Iraq between 20 March and 1 April 2003.

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 had prior enlisted service in the Army National Guard from
20 September 1970 to 13 August 1974.

3.  He was appointed as a Reserve commissioned officer on 14 August 1974 and served in the Military Police Corps.  He was promoted to colonel (O-6) on
6 March 1997.  His MRD was 13 August 2004.

4.  A DA Form 67-9 (Officer Evaluation Report) for the period 24 November 2002 through 28 June 2003 shows the applicant's principal duty was Deputy Brigade Commander, 800th Military Police Brigade (Internment/Resettlement):

	a.  The unit was forward deployed in Kuwait and Iraq in support of Operations Enduring Freedom and Iraqi Freedom.

   b.  Part IV (Performance Evaluation - Professionalism), block b (Leader Attributes/Skills/Actions), item 2 (Physical - Maintains appropriate level of physical fitness and bearing) shows the rater placed an "X" in the "Yes" block.  Part IV, block c (APFT [Army Physical Fitness Test]) shows the applicant passed the APFT in November 2002.
   
	c.  The applicant's rater rated his performance and potential as "Outstanding Performance, Must Promote" and his senior rater evaluated his promotion potential to the next higher grade as "Best Qualified."

	d.  There is nothing on the OER that shows the applicant was physically or mentally incapable of performing his assigned duties.

5.  An OER for the period 29 June 2003 through 28 June 2004 shows the applicant's principal duty was Deputy Commander, 800th Military Police Brigade (Internment/Resettlement):

	a.  The unit was forward deployed to Kuwait and Iraq in support of Operations Enduring Freedom and Iraqi Freedom.

   b.  Part IV, block b, item 2, shows the rater placed an "X" in the "Yes" block.  Part IV, block c shows the entry "Profile - September 2003."

	c.  The applicant's rater/senior rater (a general officer) rated his performance and potential as "Outstanding Performance, Must Promote" and evaluated his promotion potential to the next higher grade as "Best Qualified."  The recommendation was that the applicant "should be retained for maximum service."

	d.  There is nothing on the OER that shows the applicant was physically or mentally incapable of performing his assigned duties as deputy commander.




6.  United States Army Human Resources Command (USAHRC), St. Louis, MO, Orders A-01-400167, dated 9 January 2004, as amended, ordered the applicant to active duty, on 26 November 2003, for the purpose of ADME through 2 March 2005.

7.  USAHRC, Alexandria, VA, Orders A-03-506356, show the applicant was ordered to active duty, on 3 March 2005, for a period of 179 days, to voluntarily participate in the Reserve Component Medical Holdover/Medical Retention Processing Program for completion of medical care and treatment.

8.  A DD Form 214 (Certificate or Release or Discharge from Active Duty) shows the applicant was ordered to active duty on 26 November 2003 and he was honorably released from active duty based on completion of required service on 15 April 2005.  At the time he had completed 1 year, 4 months, and 20 days of net active service this period; 7 years of total prior active service; and 26 years, 10 months, and 25 days of total prior inactive service.

9.  USAHRC, Fort McPherson, GA, Permanent Orders Number 079-032, awarded the applicant the Legion of Merit for exceptionally meritorious service in positions of increasing responsibility, from 16 April 1995 to 15 April 2005, culminating as Deputy Commander, 800th Military Police Brigade, 77th Regional Readiness Command.

10.  Headquarters, 77th U.S. Army Regional Command, Fort Totten, NY, Orders
05-111-00051, dated 21 April 2005, released the applicant from Headquarters and Headquarters Company, 800th Military Police Brigade, on 16 April 2005, and assigned him to the USAR (Retired Reserve).

11.  The applicant's military personnel records do not contain a copy of his MEB or PEB proceedings.

12.  In connection with the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C:

	a.  The advisory opinion states the applicant reached his MRD on 17 August 2004 after completing 30 years of military service.  Since his MEB was dictated on 30 September 2004, his disability case was required to be reviewed in accordance with Department of Defense standards relating to presumption of fitness.  The standards established that he entered the presumption of fitness period 12 months before his MRD (i.e., 17 August 2003).

	b.  The applicant's MEB listed seven conditions that did not meet medical retention standards:  right and left Glenohumeral arthrosis (1981), left shoulder impingement (1984), right and left basal joint arthrosis (2004), severe right ankle arthritis (2003), and left ankle arthrosis (1994).

	c.  The applicant was found to be mentally competent and there were no indications or diagnoses of any psychiatric conditions.  In addition, there were no mental/psychiatric problems or complaints about them from the applicant.

	d.  The NARSUM indicated the applicant's right ankle never sustained any noticeable injuries.  He underwent a right ankle arthroscopy in December 2003, he developed some post surgery infection, and had a second right ankle procedure in January 2004.  His right ankle had minor range of motion limits with negative anterior drawer and talar tilt test, and no evidence of neurovascular or muscle deficits.

	e.  On 10 December 2004, the applicant concurred with the MEB findings.

	f.  The applicant could only overcome the presumption of fitness rule if, within the presumptive period (from 17 August 2003), the applicant:

	    (1)  Incurred an acute, grave (sudden onset that was very serious or dangerous to life) condition that would prevent him from performing further duty if not retiring.

	    (2)  Suffered a serious deterioration of a previously diagnosed condition; or 
before the presumptive period began, 

       (3)  The applicant had physical conditions clearly established that kept him from performing his assigned duties (before 17 August 2003).

	g.  The applicant had no sudden life threatening condition listed on his MEB.  A review of his listed conditions reveals several instances of arthritis of the joints, which may naturally progress with complaints of more joint pain or limitations of joint motion.  However, a full review reveals there were no "serious deteriorations" during the presumptive period.  In addition, all performance data indicates he could adequately perform all of his duties until November 2003, which was several months after the presumption period began.

	h.  On 16 February 2005, a PEB found the applicant did not overcome the presumption of fitness rule and authorized the applicant to be released and placed on the USAR retired list.

	    (1)  The advisory opinion also states that conditions that may have resulted in re-hospitalization for the applicant after his PEB would not have required any change in the PEB findings.

	    (2)  The USAPDA advisory opinion concludes that the PEB findings were based on a preponderance of the evidence, they were not arbitrary or capricious, and they were not in violation of any statute, directives, or regulation.  The advisory official recommends no change to the applicant's records.

13.  On 5 August 2005, the applicant's counsel was provided a copy of the advisory opinion to allow him the opportunity to respond to its contents.  

14.  Counsel provided a 6-page legal brief indicating that the applicant strongly disagreed with the opinion and recommendations of the USAPDA.

   a.  He stated the PEB limited its focus to certain provisions of AR 635-40, paragraph 3-2(b)(2), in which an officer may overcome the presumption of fitness and did not address the language, "[t]he presumption of fitness may be overcome if the evidence establishes the Soldier was, in fact, physically unable to adequately perform the duties of his office, grade, rank or rating for a period of time because of disability."
   
   b.  Counsel stated the applicant was unable to perform his duties for a period of time while in the presumptive period:

       (1)  He pointed out that the USAPDA admitted the applicant could not perform his duties during a substantial part of the presumptive period because it stated "[A]ll performance data indicates the applicant could adequately perform all his duties until November, 2003; when he was placed on a medical hold after successful completion of his 24-month deployment."

       (2)  Counsel reintroduced previous evidence regarding the VA medical report, two command memoranda, MEB NARSUM, and the argument that the PEB relied solely on the applicant's OERs and did not consider other evidence.

       (3)  He asserted the evidence shows the applicant experienced "significant deterioration" of his medical conditions during the presumptive period, and for which he underwent surgery and continued treatment.

   c.  Counsel reintroduced the argument that the PEB was obligated to direct reevaluation of the applicant's case because he was hospitalized while in the disability evaluation process.

   d.  He provided a copy of a VA VISTA Electronic Medical Documentation, Progress Note, dated 28 July 2008, that shows the applicant is unemployable and unable to work.

   e.  Counsel concluded that the PEB process was flawed because it considered the applicant's case on a grossly deficient record and the ABCMR has a duty to correct the errors and injustices in this case.

15.  AR 635-40, in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating:

	a.  Chapter 3 provides policies governing standards of unfitness because of physical disability.

	    (1)  Paragraph 3-1 (Standards of unfitness because of physical disability), in pertinent part, provides 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.

	    (2)  Paragraph 3-2 (Presumptions) states the following presumptions will apply to physical disability evaluation:
 
       (3)  Subparagraph a (Before and during active service), in pertinent part,
subparagraph (5),  The foregoing presumptions may be overcome only by a preponderance of the evidence, which differs from personal opinion, speculation, or conjecture.  When reasonable doubt exists about a Soldier's condition, an attempt should be made to resolve the doubt by further clinical investigation and observation and by consideration of any other evidence that may apply.  In the absence of such proof by the preponderance of the evidence, reasonable doubt should be resolved in favor of the Soldier.

   b.  Subparagraph b (Processing for separation or retirement from active service).  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	    (1)  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that:

       (2)  The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

	    (3)  An acute, grave illness or injury or other significant 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. 

	c.  Chapter 4 provides procedures governing eligibility for disability evaluation:

	    (1)  Paragraph 4-16 (Rehospitalization of Disabled Soldier) states that a Soldier who is rehospitalized while undergoing disability evaluation or awaiting final disposition must be evaluated to decide if his or her condition may change the findings or recommendations of the PEB.  If the Soldier's condition may change the findings and recommendations, the MTF commander will notify the PEB president.  Further adjudicative and review action may be suspended pending resolution.  When the Soldier has received optimum hospital improvement for disposition purposes, the hospital commander will prepare an addendum to the original medical board.  The addendum will be forwarded to the PEB with any other pertinent records unless some other disposition is indicated.  The PEB must be notified if other disposition terminates disability processing.

	    (2)  Paragraph 4-18 (Initial processing) provides upon receipt of a case by the PEB, the case file will be reviewed to ensure it is complete.  If documents are missing, action will be taken to complete the file.  When the case file is complete, it may be referred to the board for evaluation.

   d.  The PEB may return a case to the MTF commander for additional information.  However, efforts should be made to resolve all issues without returning the case.  When circumstances permit resolution of the problem by discussion and a memorandum of the discussion must be included in the case file as an exhibit.  When return of the case to the MTF is necessary, the reason for its return will be clearly stated in the letter of transmittal.  Examples of reasons for which a case may be returned are as follows:

	    (1)  Further physical examination, clarification, or preparation of additional records is required.
	    (2)  Additional description and information by the medical board of the Soldier's defects and their effect on the Soldier's functional ability to perform duty are necessary for proper PEB evaluation of the case;

	    (3)  Further observation, evaluation, and reconsideration by a medical board is required; or

	    (4)  Additional information from the command concerning the Soldier's ability to perform the duties of his or her office, grade, rank, or rating must be provided for proper PEB evaluation of the case.

16.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who is unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability while entitled to basic pay and has at least 20 years of service or a disability rated at least 30%.

17.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same 
impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend the applicant's records should be corrected by voiding the PEB findings and administratively reinstating the applicant to active duty for MEB/PEB processing or, in the alternative, make a determination that he is 70% permanently disabled (as determined by the VA); placing him on the permanent disability retired list and paying him all pay, allowances, retirement, and other benefits to which he is entitled as a result:

	a.  The applicant suffered from several serious, unfitting medical conditions:

       (1)  He received treatment at a VA medical center from 18 September 2003 through 16 October 2006 and a VA medical report indicates he was "not fit for duty."

       (2)  He did not perform military duties of his grade nor his specialty for approximately 10 months prior to retirement.

       (3)  Two command memoranda provided to the PEB indicate that he was physically evaluated and, on 24 November 2003, he was unable to perform the duties of deputy commander and as a colonel in the military police corps.

       (4)  The MEB NARSUM concluded that he did not meet medical retention standards for both ankles, both shoulders, and bilateral thumb basal joints and listed nine separate medical conditions.

       (5)  He began experiencing symptoms of PTSD approximately 6 months after redeployment to the United States.

   b.  The PEB finding was erroneous, unjust, arbitrary and capricious because it determined the applicant failed to overcome the "presumption of fitness" rule applicable to officers who are within 1 year of mandatory retirement by:

       (1)  Relying exclusively on the applicant's OERs for its determination that he failed to overcome the presumption of fitness.

       (2)  Ignoring the applicant's unstable medical conditions at the time, although he was under continued evaluation and treatment, and has since undergone numerous other surgeries for medical conditions that the PEB determined were not unfitting.

       (3)  Determining he was fit for duty while the applicant is currently rated as 70% disabled by the VA.

2.  Records show the applicant reached his MRD on 14 August 2004 based on completion of 30 years of commissioned officer military service.  Thus, he entered the presumption of fitness period 12 months before his MRD (i.e.,
14 August 2003 vice 17 August 2003) and the period of presumption of fitness terminated on 13 August 2004.  However, this Board will recognize the presumption of fitness as beginning 14 August 2003 and terminating 17 August 2004, which benefits the applicant.        

3.  There is no evidence of record that the applicant had physical conditions clearly established that kept him from performing his assigned duties before
14 August  2003.

4.  The first indication that the applicant may have had a disabling medical condition is when he underwent a physical examination at Fort Drum, NY, on 
5 September 2003, subsequent to entering his period of presumption of fitness. 

5.  The VA report, dated 12 December 2003, noted the applicant was not fit for duty.  However, the VA has neither the authority nor the responsibility for determining physical fitness for military service.

6.  The evidence of record shows the applicant was retained beyond his MRD to voluntarily participate in the Reserve Component Medical Holdover/ Medical Retention Processing Program for completion of medical care and treatment:

   a.  Two command memoranda provided to the PEB indicate the applicant was placed on ADME on 24 November 2003, removed from his position as deputy commander, and detailed as a project officer until completion of his medical examination.  With regard to the applicant being detailed as a project officer, this does not suggest that he was incapable of performing duties commensurate with his rank and grade.  Thus, these two memoranda provide insufficient evidence to support the contention that the applicant could not adequately perform the military duties of his grade or specialty.

   b.  The applicant's rater/senior rater, a general officer, documented the applicant's outstanding duty performance as Deputy Commander, 800th Military Police Brigade (Internment/Resettlement) from 29 June 2003 through 28 June 2004.  He did not indicate the applicant was physically or mentally incapable of performing his assigned duties as deputy commander at any time during this period.  (It is noted that the period covered by this OER extended well beyond
24 November 2003 date cited in 6a, above.)  In addition, the senior rater stated the applicant was best qualified for promotion to the next higher grade and that he should be retained for maximum service.

   c.  Since the applicant was within the 12-month period authorized for separation processing based on retirement for reasons other than physical disability, and the applicant continued to adequately perform [emphasis added] assigned duties commensurate with his rank or grade until at least 28 June 2004, in the absence of evidence to the contrary, there is a presumption of fitness for duty through the date of his scheduled retirement (i.e., MRD of 17 August 2004).

7.  The applicant's MEB was dictated on 30 September 2004 and he concurred in the MEB findings on 10 December 2004.

8.  On 16 February 2005, the PEB found the applicant did not overcome the presumption of fitness rule:
   
   a.  There is no evidence that the PEB failed to consider the entire scope of the applicant's medical condition, including "natural progression."  In fact, the USAPDA advisory shows that "…a full review of the applicant's medical findings revealed no "serious deteriorations during the presumptive period."
   
   b.  There is no evidence of record and the applicant and counsel failed to provide evidence that shows the applicant challenged the findings of the PEB at that time, including the consideration of any additional medical conditions.

   c.  The applicant's PEB was approved on 16 March 2005 and authorized the applicant to be released and placed on the retired list.
   
   d.  The applicant was released from his Reserve unit on 16 April 2005 and assigned to the U.S. Army Retired Reserve.

9.  Counsel cites AR 635-40, paragraph 3-2a(5), governing presumptions when reasonable doubt exists about a Soldier's condition to support his argument. Again, the evidence shows the PEB conducted a full review of the applicant's medical and non-medical records as evidence.

10.  Counsel cities AR 635-40, paragraph 4-16, indicating the applicant was hospitalized while undergoing disability evaluation and he should have been evaluated to determine if his condition may have changed the PEB's findings and recommendations.  There is no evidence the PEB failed to consider the applicant's entire medical record, including recent hospitalizations and surgeries, or any additional information provided by the applicant, prior to the PEB rendering its findings on 16 February 2005.

11.  Counsel cities AR 635-40, paragraph 4-18(b), indicating the PEB should have returned the applicant's case to the MTF for additional evaluation because of his additional periods of hospitalization and surgeries between 20 September 2004 and 16 February 2005.  However, the regulatory guidance provides that the PEB may return a case [emphasis added] to the MTF commander for additional information; however, efforts should be made to resolve all issues without returning the case.  Again, there is no evidence the PEB did not consider and resolve all issues or that it erred in its decision.

12.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  As a result, the applicant is not entitled to correction of his PEB proceedings to show he was found unfit for duty.  Thus, the applicant's PEB proceedings are presumed proper and equitable.  Therefore, the applicant is not entitled to correction of his records or an adjustment to his disability rating.

13.  Statutory and regulatory guidance provides that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA to give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other Government agency), in its discretion, awarded the applicant a disability rating for a condition that was determined to meet Army retention standards, is a prerogative exercised within the policies of that agency.

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 thi