IN THE CASE OF:	  

		BOARD DATE:	22 March 2012        

		DOCKET NUMBER:  AR20110013576


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 medical retirement.

2.  The applicant states:

	a.  he was under the premise that he would be medically retired due to obstructed sleep apnea (OSA) and hypertension;

   b.  he was pulled from the manifest to deploy to Iraq with 1st Corps at Fort Lewis, Washington in 2009 and transferred to the military intelligence (MI) branch to the Intelligence and Security Command (INSCOM) at Fort Belvoir to retire; and
   
   c.  he should have been medically boarded and retired with a percentage of disability.

3.  The applicant provides a self-authored statement and an indexed list of eighteen enclosures.

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's official military personnel file (OMPF) shows he was appointed a Reserve commissioned officer in the rank of second lieutenant (2LT) and swore his oath of office on 16 May 1987.

3.  On 12 June 1989, he was ordered to active duty.  He was trained in and served in areas of concentration 35E (Counterintelligence) and 35D (All Source Intelligence).

4.  He was promoted through the ranks to lieutenant colonel (LTC/O-5) on 
2 October 2005, the highest rank held on active duty.

5.  His OMPF contains a DA Form 67-9 (Officer Evaluation Report) which rated him in the principal duty of "strategic planner" during the period 11 December 2008 through 31 August 2009.  It shows that while on profile on 16 June 2009, he maintained an appropriate level of physical fitness and military bearing, and mentally possessed desire, will and discipline.

6.  On 8 September 2009, the applicant submitted a request for voluntary Retirement and release from active duty (REFRAD) on 31 May 2010.  It shows:

	a.  he read Army Regulation 600-8-24, paragraph 6-6 and 6-7

	b.  he understood he was responsible for ensuring that physical examination was completed not earlier than 4 months or later than 1 month prior to his approved retirement date or start of transmission leave, whichever is earlier;

	c.  he was aware the purpose of the physical examination was to ensure his medical record reflected as accurately as possible the state of his health on retirement and to protect his interests and those of the Government; and

	d.  he would not be held on active duty beyond his retirement date to complete his examination.


7.  The applicant's OMPF includes Department of the Army, U.S. Garrison, Fort Belvoir, Virginia, Orders Number 314-0002 dated 10 November 2010 which shows:

* he was ordered retired and REFRAD on 31 May 2010
* he was authorized placement on the retired list on 1 June 2010
* he was required to schedule and undergo a mandatory retirement physical in advance to assure its completion prior to his retirement date

8.  On 31 May 2010, he was honorably retired from active duty after completing a total of 20 years, 11 months, and 19 days of creditable active service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired under the provisions of Army Regulation 600-8-24, 
paragraph 6-13c(1) by reason of "sufficient service for retirement."

9.  The applicant's military record provides no indication he suffered from a disabling medical condition that warranted his retirement processing through medical channels.

10.  The applicant provides multiple Standard Forms 600 (Chronological Record of Medical Care) dated 17 February - 13 March 2009 which document the medical treatment he received for his diagnosed "hypertension" and "obstructed sleep apnea" conditions.  

	a.  SF 600 dated 17 February 2009 -  shows he was determined non-deployable until his pressure improved based on his hypertension (systemic) condition;

	b.  SF 600 dated 11 March 2009 - shows the applicant would need medical evaluation board (MEB) processing if he was not retiring in 2009; and

	c.  SF 600 dated 13 March 2009 - provided the specifics for the MEB and indicated the applicant would have a follow-up in one month with the outpatient therapist and at that time the applicant reported he was tolerating the automatic positive airway pressure (APAP) treatment well.

11.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing the transfer and discharge of Army officer personnel.

   a.  Paragraph 6–6 states that a medical examination is required prior to retirement and will be scheduled not earlier than 4 months prior to the retirement date or the beginning of the officer's transition leave date.  The officer's immediate commander will ensure the medical examination is processed in accordance with Army Regulation 40-501.
   
   b.  Paragraph 6-7 provides guidance for officers who requests or is scheduled for retirement and required hospitalization or a physical evaluation board (PEB).
   
   (1)  An officer who is scheduled for retirement will be evaluated by the 
commander (or designated representative) of the medical treatment facility (MTF) to determine if referral to a physical evaluation board (PEB) is necessary.  When the officer is referred to the PEB, the MTF will promptly notify Commander, Human Resources Command, Fort Knox, Kentucky.  The PEB Liaison Officer must provide the officer's medical condition and scheduled date of the PEB.

		(2)  An officer found fit for duty by a PEB will retire on the first day of the month following the month the officer is found fit.

		(3)  When a PEB is not necessary but additional medical care is, a non-disability retirement will be processed. Medical treatment will continue up to and after (if necessary) the approved retirement date.  The retirement date will not be changed because of medical treatment

	c.  Paragraph 6-13c(1) provides the approval authority for voluntary retirements.  It states that a Regular Army or USAR commissioned officer with 20 years active federal service (of which 10 years is active commissioned service
may on their request and the approval of Secretary of the Army be retired (10 USC 3911).

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system 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 office, grade, rank, or rating. Separation by reason of disability requires processing through the Physical Disability Evaluation System (PDES).

   a.  Paragraph 3-1 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

	b.  Paragraph 3-2 of Army Regulation 635-40 contains guidance on fitness presumptions.  It states that 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.  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.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the Soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive a medical retirement based on his hypertension and obstructive sleep apnea conditions.

2.  By regulation, the mere presence of impairment does not, in and 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, rank, or rating.

3.  The medical evidence provided by the applicant confirms he was diagnosed with hypertension and obstructed sleep apnea and received medical treatment for these conditions from 17 February through 11 March 2009.  Following his treatment on 11 March 2009, his physician recommended his appearance before an MEB for OSA, if he was not retiring in 2009 and instructed the applicant to follow-up with a respiratory specialist in one month.  The evidence of record does not contain and the applicant did provide any evidence to show he made the follow-up appointment, nor is there any evidence to show he received any additional treatment for OSA after 11 March 2009.  However, his final evaluation report dated through 31 August 2009, confirms he maintained an appropriate level of fitness and he continued to serve on active duty until he retired by reason of "sufficient service for retirement" on 31 May 2010.

4.  During his voluntary retirement processing, he acknowledged his requirement to undergo a physical examination.  While the applicant's exit physical is not on file, by regulation, he was required to undergo a comprehensive separation medical examination, which would have resulted in his being cleared for separation by competent medical authority.  His continued performance of assigned duty commensurate with his rank or grade between when he was treated for OSA in March 2009 until he was scheduled for retirement on 31 May 2010, creates a presumption that he was fit.

5.  Absent any evidence that the applicant suffered from a condition determined unfit by the proper medical authority while serving on active duty, there is insufficient evidence to show he warranted separation processing through the PDES at the time of his 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 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)                                         AR20110006414



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013576



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1