IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110000104 


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 a Medical Evaluation Board (MEB), a retirement award, and consideration for promotion to the next higher grade.

2.  The applicant states that Department of Defense (DOD) Directives, Service regulations, and Title 10, U.S. Code clearly show he should have been referred to an MEB/Physical Evaluation Board (PEB) and considered for a medical retirement based on medical events during his last 6 months of service.  He adds that despite having major hip surgery and multiple documented medical issues within 6 months of a mandatory retirement date, he was forced into retirement prematurely without being provided the opportunity to come before an MEB/PEB for consideration for a medical retirement versus a regular retirement.  He states this lack of action by the Army may have prevented him from obtaining proper entitlements as outlined in public law/DOD/Service regulations and possible promotion to the next higher grade.  He further states that after reviewing DOD directives and medical regulations, assumption of fitness does not apply in his case.  He adds that he is rated at 90 percent (%) disabled by the Department of Veterans Affairs (VA).  Lastly, he states that he was not provided any retirement award after serving over 20 years of active federal service.

3.  The applicant provides 19 pages of health-related documents and a DA Form 31 (Request and Authority for Leave).


CONSIDERATION OF EVIDENCE:

1. The applicant was commissioned as a U.S. Army Reserve (USAR) second lieutenant in the Finance Corps on 9 May 1981.  He served on active duty in the Active Guard Reserve (AGR) program and he was promoted to the rank of lieutenant colonel (LTC) on 1 February 2002.

2.  His interactive Personnel Electronic Records Management System (iPERMS) file contains a DA Form 67-9 (Officer Evaluation Report (OER)) for the period
17 April 2004 through 16 April 2005 that shows he was performing his duties as the Assistant to the Deputy Commander for Mobilization and Reserve Affairs in an outstanding manner during that rating period.

3.  A U.S. Army Human Resources Command, St. Louis, MO, memorandum for the applicant, subject:  Calendar Year (CY) 2004 Active Service (AS) extension Board – Non-Selection Notice, dated 9 May 2005, stated the applicant was not recommended for extension on active duty in the AGR Program.  The memorandum indicated his current retirement or removal date (RRD) was
31 December 2007.

4.  A DA Form 3349 (Physical Profile), dated 8 August 2005, shows he had chronic right hip pain and sleep apnea.  This form further indicated that though he was given a physical profile excusing him from running he was permitted unlimited walking, swimming, or biking and he was world-wide qualified for mobility.

5.  A U.S. Army Human Resources Command memorandum for the applicant, subject: Notification of Promotion Status, dated 24 October 2006, stated he was considered but not selected for promotion (to the rank of Colonel) by the board.  

6.  He provided retirement physical documents which listed several medical problems.  These documents show the applicant was obese at 72 inches tall, 270 pounds, and a body mass index of 36.65.  Army Regulation 600-9 (The Army Weight Control Program) states that each Soldier is responsible for meeting the standards prescribed in this regulation.  It further states that to assist Soldiers in meeting these responsibilities, screening tables will continue to be prescribed for use as is currently being done.  Table 3-1 (Weight for Height Table) shows for those Soldiers age 40 plus and 72 inches in height the maximum allowable weight is 203 pounds.  Table 3-2 (Maximum Allowable Percent Body Fat Standards) shows the maximum allowable percentage for his age is 26%.


7.   His retirement physical documents show he had multiple problems directly or indirectly related to his obesity, including but not limited to osteoarthritis of multiple weight bearing joints, hypertension, hyperlipidemia, early diabetes, metabolic syndrome, obstructive sleep apnea, and esophageal reflux.  These accompanying documents also show, among other items listed under the heading of past medical/surgical history, that he had a right hip replacement in 2007.

8.  On 31 December 2007, the applicant was retired as an LTC and placed on the Retired List the following day.

9.  Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation) provides that the unit commander will refer a Soldier to the servicing medical treatment facility (MTF) for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.  The medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

10.  Army Regulation 635-40, paragraph 3-1, states that the mere presence of 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 during future duty assignments.  All relevant evidence must be considered in evaluating the fitness of a member.  When a member is referred for physical evaluation, evaluations of his performance of duty by his supervisors may provide better evidence than a clinical estimate by a physician of the member’s physical ability to perform the duties of his office, grade, rank, or rating until the time he was referred for physical evaluation.  Thus, if evidence establishes that the member adequately performed the normal duties of his office, grade, rank, or rating until the time he was referred for physical evaluation, he might be considered fit for duty, even though medical evidence indicates his physical ability to perform such duties may be questionable. 

11.  Army Regulation 635-40, paragraph 3-2 (Presumptions) states that when a member is being processed for separation for reasons other than physical 


disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty (until he is referred to the physical disability system for evaluation for separation) creates a presumption that the member is fit for duty.  Such a member should not be referred to a PEB unless his physical defects raise substantial doubt that he is fit to continue to perform the duties of his office, grade, rank or rating.

12.  Army Regulation 635-40, paragraph 3-2, continued by stating that the presumption of fitness may be overcome if the evidence established that acute, grave illness or injury or other deterioration of physical condition, that occurred immediately prior to or coincidentally with the Soldier’s separation for reasons other than physical disability, rendered him unfit for further duty.

13.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in the Army not separating the individual for physical unfitness.  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.  

14.  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 employability.  Accordingly, it is not unusual for the VA to award a veteran a disability rating when the veteran was not separated due to physical unfitness.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.  

15.  Department of Defense Instruction (DoDI) 1332.38, paragraph E3.P3.5.1, Application, 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 (Disability Evaluation System) 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.  Paragraph E3.P3.5.3, Overcoming the Presumption, states that the presumption of fitness rule shall be overcome when:


	a.  (E3.P3.5.3.1)  Within the presumptive period (such as when an officer is within 12 months of mandatory retirement due to age or length of service) an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring;

	b.  (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

	c.  (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.

16.  Army Regulation 135-18 (The AGR Program) provides that AGR officers will be released from active duty (serving under Title 10, U.S. Code) when they have attained 20 years of AS, according to the policies prescribed in Army Regulation 600-8-24 (Officer Transfer and Discharges), unless approved for extension.  AGR commissioned officers may be retained on AD beyond 20 years of AS through a board process.  Consideration of eligible officers for retention is automatic; as such, officers need not apply for retention consideration.

17.  Army Regulation 600-8-22 (Military Awards) states there is no automatic entitlement to an award upon departure either from an assignment or from the service. 

	a.  This regulation further prescribes that commanders will ensure individuals on whom favorable personnel actions have been suspended neither are recommended for nor receive awards during the period of the suspension.  Exceptions to the above are Soldiers who are flagged for Army Physical Fitness Test failure, in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)), paragraph 1–15.

	b.  As an exception to subparagraph a above, a Soldier who is flagged for overweight may be recommended for and presented an award based on valor, heroism, or for length of service retirement.  A waiver of the overweight flag must be processed to the first general officer in the Soldier’s chain of command for approval or disapproval.  A waiver for overweight is not required for award of the 


Purple Heart.  Approval or disapproval authority is delegated to the first general officer in the chain of command.  Waivers will be processed as separate and distinct actions from the award recommendation, and should be submitted and adjudicated prior to submission of the award recommendation.  Approved waivers will accompany the award recommendation once submitted.

18.  Title 10 of the U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

19.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  His last available OER indicated he performed his duties as the Assistant to the Deputy Commander for Mobilization and Reserve Affairs in an outstanding manner during the rating period.  He had a permanent profile for his right hip in 2005 but waited until a few months before his mandatory retirement to undergo hip replacement.  Although the record is void of pertinent information regarding his hip treatment, it is reasonable to conclude that he was in better condition after hip replacement.  While his permanent physical profile excused him from running, he was permitted unlimited walking, swimming, or biking and he was determined to be world-wide qualified for mobility.  As such, without a preponderance of evidence that the applicant was not performing duties befitting either his experience in the office, grade, rank, or rating before entering the presumptive period because of his medical problems, there would be no basis for referring him to an MEB.


2.  There is no evidence or indication of an acute, grave illness or injury or other deterioration of physical condition, such as a massive heart attack, a stroke, or a diagnosis of advanced stage cancer, that occurred immediately prior to or coincidentally with the applicant’s scheduled retirement.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is reasonable to presume that the applicant was physically fit to perform his duties when he entered into the presumptive period of his career.

3.  While the applicant states that he was forced to retire, he was considered by the CY 2004 AS Extension Board and he was not recommended for extension on active duty in the AGR Program.  Since he did not have an approved extension of his RRD, he was required to be released from active duty not later than 31 December 2007.  As such, there is no error or injustice in this regard.

4.  The fact that he was awarded a 90% disability rating by the VA after his retirement does not indicate that the action taken by the Army was in error or unjust.  The Army compensates a Soldier for conditions which cause the termination of a military career.  The VA compensates a veteran for any service-related condition which impairs the veteran’s industrial abilities.  The applicant completed his active duty career in the AGR program.

5.  With respect to consideration for promotion to Colonel, he was considered and not selected for promotion in 2006.  He was not on a promotion list.  As such, there is no basis for submitting his records for reconsideration for promotion. 

6.  While it may have been due to his being flagged for being overweight or for another reason, the available evidence is insufficient for determining why the applicant was not presented an award at retirement.  However, the Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that the applicant's leadership acted properly when he was not presented an award at retirement (which is not automatic).

7.  While the available evidence is insufficient for awarding him a retirement award, this in no way affects his right to pursue his claim for a retirement award by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

8.  In view of the foregoing, there is an insufficient 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 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)                                         AR20110000104



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ABCMR Record of Proceedings (cont)                                         AR20110000104



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