BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100016457 


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 the findings of her Physical Evaluation Board (PEB) be changed from "fit for duty" to a medical retirement with a disability.

2.  The applicant states she was on active duty when the PEB was conducted and she should get compensated.  She states she was flagged and should not have gone to the medical board.  She states her conditions have worsened due to the PEB decision and being called back on active duty.  

3.  The applicant provides copies of:

* a letter, dated 24 April 2008, from the U.S. Army Physical Disability Agency (USAPDA)
* her Department of Veterans Affairs (VA) Rating Decision, dated 3 April 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show she enlisted in the U.S. Army Reserve on 27 March 1987.  

2.  An NCO (noncommissioned officer) Evaluation Report (NCOER) for the period ending December 2005 commented on the applicant taking physical fitness seriously by taking the initiative to walk during her lunch hour every day.  According the NCOER, her profile did not hinder her job performance.  There is no evidence that her performance was hindered by any medical condition(s).
3.  An NCOER for the period ending 31 August 2006 commented on the applicant being capable of performing her assigned duties.  According to the NCOER, she was a stellar example of how to maintain one's self in peak condition and she never showed fatigue.

4.  On 26 April 2007, the applicant was notified she had completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60 (20-year letter).

5.  The applicant's Medical Board Proceedings (MEBD) were not available for review.

6.  On 6 March 2008, a formal PEB found the applicant fit for duty.  The PEB found:

* her multiple somatic and psychologic issues did not adversely impact the performance of her duties
* her anxiety disorder was multifaceted and long-standing 
* she had performed well with her mobilization and the assignment to the rear detachment
* her shoulder, back, knee pain and plantar fasciitis were long-standing
* she had performed well, as evidenced by her NCOERs

7.  On 24 April 2008, the USAPDA approved the findings of "fit for duty" by the PEB.  The findings were based on the preponderance of evidence provided by the PEB.  The mere presence of an impairment does not, of itself, always justify a finding of unfitness.  If the applicant's medical condition was determined to have worsened, her command or military treatment facility should initiate a new MEBD and forwarded it to a PEB for a new fitness determination.

8.  On 17 July 2009, the applicant was ordered to active duty for a period of 
179 days.  She was released from active duty on 11 January 2010 by reason of the expiration of her required active service.  She had completed 5 months and 25 days of active service that was characterized as honorable.

9.  On 7 May 2010, the applicant was transferred to the USAR Control Group (Reinforcement).   On 11 May 2010, she was transferred to the Retired Reserve.

10.  The VA Rating Decision, dated 3 April 2009, submitted by the applicant shows she was assigned a combined disability rating of 80 percent.


11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that those members who do not meet medical retention standards will be referred to a PEB to determine whether they are physically unfit to perform their duties and if found unfit, to determine the percentage of disability to be awarded.  This regulation also provides that only unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

12.  Army Regulation 635-40 further provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments.  

13.  Army Regulation 635-40, paragraph 3-2b(2), provides that when a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

14.  Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA does not make any determination as to whether an injury was unfitting for military service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the findings of her PEB should have been medical retirement with a disability.  She contends she was flagged and should not have been placed before the PEB.  She contends her conditions have worsened because of the PEB decision and being called back on active duty.

2.  There is no evidence of the applicant having been flagged for any reason when she was placed before the PEB.  

3.  The NCOER's available and the applicant's subsequent period of active duty support the presumption that she was fit for duty.  This presumption can be overcome only by clear and convincing evidence that she was unable to perform her duties for a period of time 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.  The applicant has not submitted any substantive evidence to overcome this presumption.

4.  Title 38, United States Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

5.  The applicant contends that her service connected disabilities have increased. Disabilities which occur or which worsen after a Solder is separated are treated by and compensated for by the VA.  Any claims or issues concerning treatment or compensation for service connected disabilities should be addressed to that Agency.  

6.  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 has failed to submit evidence that would satisfy that requirement.

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)                                         AR20100016457



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ABCMR Record of Proceedings (cont)                                         AR20100016457



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