IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110012549 


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, a medical retirement.  He also requests that a physical evaluation board (PEB) be conducted again with direction not to apply the "presumed fit" rule.

2.  The applicant states, in effect:

	a.  He wants another PEB conducted on his case to correct Army errors and injustices made in 1991, 1996, 2005, and 2008 with direction that the PEB is not to apply the "presumption of fitness" rule.  These errors unjustly delayed his PEB until after his presumptive period start date of 6 June 2007.  This correction will result in his medical retirement effective 1 August 2008.

	b.  His PEB would have occurred well before the presumptive period and at a time he was not retirement eligible or nearing any type of mandatory separation date, but Army medical officials failed to refer his case to a medical evaluation board (MEB)/PEB when he clearly did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  Army medical errors prevented the application of Title 10, U.S. Code, in the best interests of his health and the unit mission.  Further, the arguments and evidence presented at the PEB did overcome the presumption of fitness in accordance with Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), but the PEB improperly ruled otherwise by unjustly weighting the evidence.

	c.  The evidence presented at his PEB did overcome the presumption of fitness rule, but the president unjustly weighted a good officer evaluation report (OER) and his personal belief that "a unit always has a place for an officer on staff" as trumping all other evidence presented to overcome the presumption of fitness rule.

	d.  In 1991, his active duty injury was severe enough to warrant being retained on active duty, placed on medical hold, and processed through the Army Physical Disability Evaluation System (PDES).  His injury was not initially identified while he was serving on active duty due to errors in administration of his release from active duty medical examination and consequently he was not processed through the PDES.  If his injury had been identified in 1991, he would have had an active duty PEB at that time instead of after his "presumptive period."

	e.  In 1995, medical officials at Fort Knox, KY, were made fully aware of the severity of his active duty injury.  Had Army medical personnel not made errors and/or injustices in the application or lack of application of Army Regulation 
40-501 in 1995, then Army medical personnel would have determined his injury as unfitting and his case would have been referred to an MEB/PEB.

	f.  In 2005, a Military Occupational Specialty Medical Retention Board (MMRB) found him unfit to continue to serve in any position in the active Army Reserve due to his service-connected injury.  Army processing errors after the MMRB significantly delayed his entry into the PDES.  Once he was officially entered into the PDES, additional medical processing errors occurred to further delay the date of his PEB.

	g.  The PEB applied the "presumptive rule" regardless of Army errors made prior to the presumptive period and this made for an unjust decision by the PEB as to whether or not the "presumptive rule" had been overcome.  If it were not for the Army medical error of allowing the Army Physical Fitness Test (APFT) sit-up event instead of limiting the APFT sit-up event in his permanent physical profile (so as to prevent aggravation of his herniated disc in the neck), there would have been "no completed APFT's."  Because the PEB would not recognize this Army medical error, the PEB unjustly used "completed APFT's" as evidence that he did not overcome presumption when, in fact, he should be able to use "no completed APFT's" as evidence to overcome the presumption.  The PEB unjustly weighted evidence making it impossible to reasonably overcome the presumption.

3.  The applicant provides a 70-page memorandum with 5 attachments (A-E) and 53 exhibits outlined in item 17 (Remarks) of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the Regular Army on 7 June 1978 and he entered active duty.  He was honorably discharged on 18 August 1986 by reason of unqualified resignation and transferred to the U.S. Army Reserve.

2.  He was ordered to active duty on 22 January 1991 in support of Operations Desert Shield/Desert Storm.

3.  He provides a Standard Form 88 (Report of Medical Examination), dated 12 March 1991, which shows he was found qualified for retention/separation with a physical profile of "111111."  He reported he was in "excellent health" in his Standard Form 93 (Report of Medical History), dated 12 March 1991.

4.  He was released from active duty on 26 March 1991.

5.  He provides a Standard Form 88, dated 5 November 1995, which shows he was found qualified for retention with a physical profile of "131211."

6.  He was issued a permanent physical profile of "131111" for cervical disk disease on 5 November 1995.

7.  He provides a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 12 November 1995, which states he was examined on 28 July 1995 for neck injury/cervical disease.  This form indicates he injured his neck on or about 26 January 1991 while unloading trucks in support of Operation Desert Storm duties at Fort Benning, GA.  His injury was determined to be in the line of duty.

8.  He was promoted to colonel on 8 December 2001.

9.  His OER's covering the period 1995 to 2005 show:

* he maintained an appropriate level of physical fitness
* he passed the APFT
* he always exceeded requirements in his performance
* he was rated "Satisfactory Performance" or "Outstanding Performance, Must Promote" by his rater in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/her Potential for Promotion)  


10.  On 5 March 2005, an MMRB found:

* the applicant's permanent medical condition precludes satisfactory performance of career management field (CMF) 13 (Field Artillery)
* the limitations imposed on the applicant's permanent physical profile are so prohibitive they preclude retention or reclassification into another CMF

11.  The MMRB recommended the applicant's referral to a non-duty PEB for further evaluation.  The approval authority approved the findings and recommendations of the MMRB.  The applicant requested an informal PEB on 6 May 2005.

12.  His OER's covering the periods 3 April 2006 through 2 April 2007 and 3 April 2007 through 2 April 2008, during which he performed duties as a Combat Support Branch Chief, show:

* he maintained an appropriate level of physical fitness and military bearing
* he passed the APFT
* he was rated "Outstanding Performance, Must Promote" by his rater in Part Va (Performance and Potential Evaluation/Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion)

13.  An MEB, dictated on 8 March 2008, diagnosed the applicant with cervical degenerative disc disease.  The MEB recommended the applicant's referral to a PEB.

14.  His informal PEB is not available.  On 13 June 2008, a formal PEB evaluated the applicant for cervical degenerative disc disease and found him fit by presumption.  His DA Form 199 (PEB Proceedings) states:

	a.  He was returned to duty for purposes of non-disability Reserve retirement.

	b.  The Army PDES is administered to compensate those Soldiers whose service is interrupted by a physical disability incurred or aggravated in service.  His personnel records indicate he was scheduled for separation from active service for reasons other than physical disability.  The records indicate his separation date was established before his entry into the PDES and he continued to reasonably perform in his grade and military specialty.  Continued performance of duty commensurate with rank or grade until scheduled for separation or retirement creates a presumption that he is fit.  Therefore, based upon the evidence presented, he has not overcome the presumption of fitness.

	c.  The above applies because records made available to this board indicate he entered the 12-month period prior to reaching his mandatory retirement date (MRD) of 30 years on or about 6 June 2007, that his medical board was dictated on or about 8 March 2008, and he satisfactorily performed the duties of his rank and primary specialty.  Medical records further indicate his condition is not acute and grave and there has not been a significant deterioration immediately prior to or coincident with reaching the presumptive period.

	d.  The applicant's contention that he was unfit prior to the onset of the presumptive period is not supported by the preponderance of evidence, such as his OER's, completed APFT's, and continued exemplary performance while in a drilling status performing duties commensurate with his rank.  The board finds the applicant fit by presumption.

15.  In June 2008, he appealed the findings and recommendation of his formal hearing with a 24-page rebuttal.  The U.S. Army Physical Disability Agency (USAPDA) concluded the applicant's case was properly adjudicated by the PEB which correctly applied the rules that govern the PDES in making its determination.  USAPDA approved the findings and recommendations of the formal PEB on 7 July 2008.

16.  He was assigned to the Retired Reserve effective 1 August 2008 due to attaining maximum authorized years of service.

17.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  It states the mere presence of an 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 his or her office, grade, or rank.  It states that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation 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 indicates that a Soldier is fit.
19.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):

* P = physical capacity or stamina
* U = upper extremities
* L = lower extremities
* H = hearing and ears
* E = eyes
* S = psychiatric

20.  Numerical designator "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.

21.  Paragraph E3.P3.5.1 (Presumption of Fitness) of DODI 1332.38 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 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.

22.  Paragraph E3.P3.5.2.3 (Presumptive Period) of DODI 1332.38 states the presumptive period for service members shall be considered to be pending retirement when the dictation of the member's MEB occurs after an officer is within 12 months of mandatory retirement due to age or length of service.

23.  Paragraph E3.P3.5.3 (Overcoming the Presumption) of DODI 1332.38 states the presumption of fitness rule shall be overcome when:

	a.  an acute, grave illness or injury occurs within the presumptive period that would prevent the member from performing further duty if he or she were not retiring; or

	b.  a serious deterioration of a previously-diagnosed condition, to include a chronic condition, occurs within the presumptive period and the deterioration would preclude further duty if the member were not retiring; or

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record does not support the applicant's contention that his 1991 active duty injury was severe enough to warrant being retained on active duty, placed on medical hold, and processed through the PDES.  On 12 March 1991 prior to his release from active duty, the medical evidence of record shows he was found qualified for retention with a physical profile of "111111."  In addition, he reported he was in "excellent health."

2.  He contends medical officials were made fully aware of the severity of his active duty injury in 1995 and his case should have been referred to an MEB/PEB.  It is acknowledged he was issued a permanent physical profile of "131111" for cervical disk disease on 5 November 1995.  However, the numerical designator "3" indicates an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  In addition, his OERs during the period 1995 to 2005 indicate he maintained an appropriate level of physical fitness, passed the APFT, and always exceeded requirements in his performance.

3.  After he was found medically disqualified for retention in the USAR in 2005, he requested an informal PEB as a non-duty related case.  He contends Army processing errors after the MMRB significantly delayed his entry into the PDES and once he was officially entered into the PDES additional medical processing errors occurred to further delay the date of his PEB.  There is no explanation for the delay between his 5 March 2007 MMRB and his 8 March 2008 MEB.  However, despite the fact the MMRB found his condition precluded retention, he continued to perform satisfactorily during the period in question in positions befitting his rank of colonel.  This satisfactory performance refutes the finding of the MMRB.

4.  He requests another PEB with direction that the PEB is not to apply the "presumption of fitness" rule.  The governing regulation states that when a Soldier is being processed for separation for reasons other than physical disability (such as retirement), continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for retirement indicates a Soldier is fit.  The "presumption of fitness" rule applies to him because evidence shows he continued to perform his assigned duties in the rank of colonel prior to his assignment to the Retired Reserve on 1 August 2008. 

5.  He adds the evidence presented at his formal PEB overcame the "presumption of fitness" rule, but the president unjustly weighted a good OER and his personal belief that "a unit always has a place for an officer on staff" as trumping all other evidence presented to overcome presumption.  However, the evidence shows he continued to perform duties appropriate in his grade and his final two OER's confirm his duty performance.  This evidence does not overcome the presumption of fitness.

6.  The Army PDES is intended to compensate those individuals whose service is interrupted by a physical disability incurred or aggravated in service.  Therefore, even though the applicant had a physical disability, he was found fit under the presumption of fitness rule since his MEB was dictated on 8 March 2008 and he entered the presumption period on 6 June 2007, 1 year before his MRD.

7.  His remaining contentions and the documentation he provided were carefully considered.  However, there is insufficient evidence to show the applicant's formal PEB findings were incorrect and were not in compliance with law and regulation.  Therefore, there is no basis for granting the applicant's request for another PEB or medical retirement.

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 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)                                         AR20110012549



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ABCMR Record of Proceedings (cont)                                         AR20110012549



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