IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20110015601 


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 voidance of his disability retirement on 8 June 2008 and reinstatement to active duty in the rank/grade of staff sergeant (SSG)/E-6, with entitlement to all back pay and allowances.

2.  The applicant defers to counsel for comments.

3.  The applicant defers to counsel to provide supporting documents. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests as indicated by the applicant.

2.  Counsel states the Physical Evaluation Board (PEB) arbitrarily and capriciously determined the applicant was physically unfit for duty with a 30 percent (%) disability rating percentage; however, multiple physicians have found him fit for duty.

3.  Counsel provides:

* a 20-page supplemental statement
* a copy of a 16 March 2010 Temporary Disability Retirement Evaluation
* a copy of a 7 February 2008 addendum to a Medical Evaluation Board (MEB) summary
* copies of sleep study records
* copies of Physical Evaluation Board (PEB) findings, dated 30 April 2010 and 26 May 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 June 2000 for a period of 4 years, training as a cavalry scout, and assignment to Europe.  He completed his one-station unit training at Fort Knox, KY and he was transferred to Germany for a 2-year tour.

2.  He completed his tour in Germany and he was transferred to Alaska where he reenlisted on 18 December 2002 for a period of 5 years and a selective reenlistment bonus (SRB).  He completed his tour in Alaska and he was transferred to Fort Lewis, WA.

3.  On 10 August 2005, he deployed to Iraq and on 29 June 2006 he reenlisted for a period of 6 years and an SRB.  He departed Iraq on 25 November 2006 and he was transferred back to Fort Lewis.

4.  On 4 March 2008, a formal PEB convened at Fort Lewis with the applicant present and represented by counsel.  The PEB determined the applicant was unfit for duty based on obstructive sleep apnea that required a breathing assistance device for proper functioning.  The PEB also determined his condition was unstable for rating purposes and recommended his placement on the Temporary Disability Retired List (TDRL) with a 50% disability rating.  He had served 7 years, 11 months, and 11 days of creditable active service.

5.  On 16 March 2010, a sleep study was conducted at Madigan Army Medical Center, Tacoma, WA as part of his TDRL reevaluation that concluded the applicant had complete resolution of obstructive sleep apnea with a normal sleep study and he no longer required use of a nasal continuous positive airway pressure (CPAP) device.  The physician concluded the applicant met retention standards on 7 April 2010.  It does not appear the results of the sleep study were made available to the PEB.

6.  Although all of the proceedings are not present in the available records, it appears that a PEB was convened at Fort Lewis on 30 April 2010 and determined the applicant should be discharged with severance pay and a 0% disability rating.  It also appears the applicant did not concur with the findings and provided the findings of a sleep study conducted by civilian authorities on 15 March 2010 wherein the examiner opined that it would be risky to bring the applicant back on active duty with continued sleep problems and that his 


condition remained unfitting due to continued evidence of a sleep disorder.  On
12 May 2010, the applicant’s military counsel forwarded an 11 May 2010 email from the applicant to the PEB.  The applicant’s email stated he had been told by his pulmonologist that he made a substantial recovery and that the pulmonologist did not see any reason for him not to be cleared for service.

7.  On 26 May 2010, the PEB was again convened at Fort Lewis that recommended the applicant be permanently retired with a 30% disability rating.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

8.  The applicant was removed from the TDRL on 29 May 2010 and he was permanently retired with a 30% disability rating.

9.  In the processing of this case a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency (PDA).  The advisory official opines that the preponderance of evidence supports a finding of fit for duty in 2010.  Although there was some evidence of lingering sleep problems, the most recent testing and official medical opinions indicated the applicant was eligible to return to duty.  The PDA noted that the more recent testing was not noted by the PEB.

10.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant’s counsel inquired of officials at U.S. Army Recruiting Command (USAREC) as to whether or not the applicant would have to undergo an accession physical, would he return in the rank/grade of SSG/E-6, and would he have to undergo basic training.  Officials at the USAREC responded to the effect that he would not have to undergo a physical if the Board declared him fit for duty, he would be returned in the rank/grade of SSG/E-6, and he would not have to undergo basic training.  In response, counsel requested that if the Board voted to grant relief that he (counsel) be contacted to assure that all consequences be well defined.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that all relevant evidence must be considered in evaluating the fitness of a Soldier.  Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence.  Thus, if the preponderance of evidence indicates unfitness, a finding to that effect will be made.  This is particularly true if medical evidence establishes the fact that continued service would be harmful to the Soldier’s health or would prejudice the best interests of the Army.  Although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide 


deployability) will not serve as the sole basis for a finding of unfitness.  It also 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 may reasonably be expected to perform because of his or her office, rank, grade or rating.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was properly evaluated by the PEB for his condition based on the information that was available to the PEB at the time he was evaluated and he was deemed unfit to satisfactorily perform the duties of his office, rank, grade or rating.  The decision was not arbitrary and capricious in any way.

2.  It also appears that the applicant was properly informed of his rights at the time and elected to appeal the PEB decision to grant him a 0% disability rating.  During this appeal the PEB was provided a medical evaluation, dated 15 March 2010, in which medical officials opined it would be risky to bring the applicant back on active duty with continued sleep problems and that his condition remained unfitting due to continued evidence of sleep disorder.  Accordingly, the PEB revised its rating and granted the applicant a 30% disability rating and permanent retirement.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case which constitutes a concurrence on the applicant’s part to the decision rendered by the PEB.

3.  Although it now appears that there was also a medical evaluation, dated
16 March 2010, that was not considered by the PEB that indicates the applicant was fit for duty, given it involved a sleep study in which the applicant participated it must be presumed the applicant was aware of the results of that study at the time he appealed the PEB decision for a higher rating or at the latest sometime before he concurred with his disability retirement.  This knowledge of the results is supported by the applicant’s 11 May 2012 email stating his pulmonologist had told him he had recovered sufficiently to return to duty.

4.  Therefore, given the close proximity of the two studies and the actions of the applicant seeking a higher disability rating based on the older of the two studies, waiving a formal PEB rather than presenting the most recent sleep study concluding that he was in fact fit, which was obviously missing from his PEB file, it must be presumed that the applicant wanted to be medically retired at the time and believed that he was unfit for duty.  Any error is thus both harmless and waived.
5.  While the applicant’s desire to continue to serve is commendable, it is not reasonable to attempt to second-guess the medical officials at the time that considered his case without specific evidence of any harm or injustice to the applicant.  Given that he endeavored to be medically retired at the time rather than request a formal hearing to assert he was fit for duty, it would be inappropriate for the Board to determine that he was/is in fact fit for duty.

6.  Therefore, there appears to be an insufficient evidentiary basis to change the decision of that board or to void his retirement and reinstate him to active duty.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20110015601



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110015601



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1