IN THE CASE OF:	  

		BOARD DATE:	    22 March 2011

		DOCKET NUMBER:  AR20100014198 


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:

The applicant defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant’s earlier request to be medically retired with a 70 percent (%) combined disability rating percentage based on his chronic hypercoagulable state.

2.  Counsel states:

	a.  the applicant met/exceeded the requirements of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) on 16 April 2008 and he should have been retired due to his medical condition.

	b.  it’s the Board’s duty to render a decision that grants every benefit that can be supported in law.

	c.  it’s the Navy and Marine Board of Corrections of Military Records policy to administer the law under a broad interpretation with the facts shown in every case.

	d.  any reasonable doubt regarding the degree of disability should be resolved in favor of the applicant.


3.  Counsel provides:

* a statement from a U.S. Air Force (USAF) Family Practice Physician, dated 23 December 2009
* a letter from the Army Board for Correction of Military Records (ABCMR), dated 3 December 2009
* medical documentation, pages 1 and 6, printed on 21 October 2009
* a letter from Department of Veteran Affairs (DVA) Medical Center, dated 8 April 2010

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090008450 on 1 December 2009.  

2.  Counsel provides a statement from a physician, medical documentation, and a letter from the DVA Medical Center, as new evidence that warrants consideration by the Board.  

3.  The applicant, a member of the U.S. Army Reserve, was born on                  18 November 1947.  On 6 November 2007, he was approved for retention on active duty beyond his 60th birthday until 26 May 2008, to obtain 60 qualifying years of service for retired pay.

4.  As referenced in the previous case:

   a.  A Narrative Summary (NARSUM), dictated on 9 October 2008, shows the applicant 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 (medically non-acceptable).  Additionally, prostate cancer, nephrolithiasis, hypertension, hyperlipidemia, psoriasis, and gastroesophageal reflux disease (GERD) (medically acceptable) were diagnosed.
   
   b.  On 24 October 2008, he was evaluated by a Medical Evaluation Board (MEBD) and he was diagnosed as having ischemic colitis with chronic abdominal pain and bowel dysfunction, pulmonary embolism with IVC filter and Coumadin therapy, obstructive sleep apnea, and cubital tunnel syndrome (non-medically acceptable) and prostate cancer, nephrolithiasis, hypertension, hyperlipidemia, 


   psoriasis, and GERD (medically-acceptable).  He was referred to a Physical Evaluation Board (PEB).

   c.  On 31 October 2008, an informal PEB determined he was fit by presumption.  This rule applied because his medical condition did not cause his career to end prior to reaching retirement eligibility.  He 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.  The PEB determined the fit by presumption rule applied.  He did not concur with the PEB’s findings and recommendation and demanded a formal hearing of his case.  

   d.  On 27 January 2009, a formal PEB found his condition met the criteria for fit by presumption and he did not 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 Department of Defense Instruction (DODI) 1332.38, sections E3.P3.5.3.2. or E3.P3.5.3.3.  He did not concur and submitted a rebuttal.  On 9 February 2009, the PEB reviewed his rebuttal and found it did not contain any objective medical or performance evidence which would have warranted a change to the original finding.

   e.  On 20 February 2009, the U.S. Army Physical Disability Agency (USAPDA) concluded that his case was properly adjudicated through the PEB which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making a determination.  The USAPDA concurred with the response provided by the PEB and affirmed the PEB’s findings and recommendation.  

5.  On 23 May 2009, he 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 transferred to the Retired Reserve on 24 May 2009.

6.  Counsel provided medical documentation, prepared on 21 October 2009, which indicated the applicant’s medical conditions as:

* primary hypercoagulable state (permanent)  
* venous thrombosis and embolism
* prostate cancer

7.  In a 23 December 2009 statement, a USAF Family Practice Physician stated that he did not know whether or not the applicant’s current condition should be 


classified as a “prolonged chronic condition” or should be addressed by a primary care manager.  He also stated the applicant:

* first developed left-sided abdominal pain on 16 April 2008 per his medical records
* had multiple hospitalizations (diagnosis now known to be colitis) to get him stabilized before he was transferred to his duty station
* met the definitions of “acute, grave illness” per Army Regulation 635-40, page 114 [definition]

8.  In an 8 April 2010 letter, a physician at the DVA Medical Center in Durham, NC opined the applicant had a lifelong hypercoagulability state requiring Coumadin therapy.  The letter indicated he was diagnosed with venous thrombosis and pulmonary embolism in March 2008.  An IVC filter was placed after the onset of ischemic colitis in April 2008.  A second pulmonary embolism occurred in August 2008.  

9.  References:

	a.  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.

   b.  Army Regulation 635-40, paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
   
   c.  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 rated at least 30 %.
   
   d.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 %.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

DISCUSSION AND CONCLUSIONS:

1.  Counsel’s contentions in regard to granting the applicant a medical retirement with a 70 percent combined disability rating based on his chronic hypercoagulable state are acknowledged.  However, the evidence of record does not indicate that an error or injustice exists in this case.  

2.  Counsel contends the applicant met/exceeded the requirements of Army Regulation 635-40 on 16 April 2008 and he should have been retired due to his medical condition.  The applicant would normally have been scheduled for separation on 18 November 2007, when he reached age 60.  However, in November 2007 he was approved for retention until May 2008, under sanctuary.  He was already scheduled for a near-future retirement by 16 April 2008.  The applicant and his counsel have provided insufficient evidence to overcome the presumption of fitness rule.

3.  Therefore, it has been determined that the applicant’s separation on 23 May 2009 by reason of completion of his required period of active service was proper and correct and there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 


are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090008450, dated 1 December 2009.



      ___________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)                                         AR20100014198



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ABCMR Record of Proceedings (cont)                                         AR20100014198



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