IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20110024834 


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 reinstatement on active duty in order to medically process through the Physical Disability Evaluation System (PDES).  

2.  The applicant states he was entitled to a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) while on active duty; however, his commander did not extend him on active duty for an MEB.  

3.  The applicant provides the 14 documents listed on the continuation document titled Evidence and Documents included with his application in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  On 30 June 2008, while serving as a Judge Advocate General (JAG) Corps captain (CPT) in the U.S. Army Reserve (USAR), the applicant was ordered to active duty to provide operational support in support of Operation Enduring Freedom and was assigned for duty to Fort Eustis, Virginia.    

2.  On 29 June 2011, the applicant was released from active duty (REFRAD), by reason of completion of required service, and returned to his USAR unit after completing 3 years of active duty service.  

3.  The applicant has continued to serve in an active status in the USAR since his REFRAD and was last reassigned from the 154th JA Detachment, LOD (Trial Defense), Alexandria, Virginia to the 154th JA Detachment, Trial Defense Team 4, Savannah, Georgia, effective 24 February 2012.  

4.  The last Officer Evaluation Report (OER) on file in the applicant's Official Military Personnel File (OMPF) is an annual report that covered the period 1 July 2010 through 30 June 2011.  It shows the applicant was evaluated as a Trial Defense Counsel for the Joint Base Langley-Eustis Branch Office, U.S. Army Trial Defense Service.  The OER shows the applicant passed the Army Physical Fitness Test (APFT) on 11 January 2011.  The OER gives no indication that the applicant suffered from any medical or mental condition that prevented him from performing the duties of his grade and specialty.  

5.  The applicant's OMPF is void of any medical records or documents indicating he was suffering from a disabling medical condition that supported his separation processing through medical channels at the time of his REFRAD on 29 June 2011, or that he suffers from such a condition that renders him unfit for further service now.  

6.  The applicant provides DA Forms 3349 (Physical Profile), dated 20 June 2011, 27 June 2011, and 3 August 2011.  These documents indicate he was issued a temporary (T) 3 profile in the pulmonary area on 20 June 2011, which became permanent on 27 June 2011.  All show he could perform all functional activities with the exception of carrying and firing his individually assigned weapon noted on the 20 June 2011 form and living in an austere environment listed on the 3 August 2011 form.  All forms indicate he could participate in all APFT events.  The 20 June 2011 form indicates the applicant was being referred for an MEB evaluation because he recently began taking medication for diabetes mellitus.  Item 7 (Does Soldier Meet Retention Standards IAW Chapter 3, AR 40-501) contains no entry in the 20 June 2011 form.  The 27 June 2011 and 
3 August 2011 forms both contain an "x" in the "No Needs MEB" block.  

7.  Army Regulation 635-40 establishes the Army's PDES 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 or her office, grade, rank, or rating.  
	a.  Paragraph 3-1 outlines the standards of unfitness because of physical disability.  It states 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating; 

	b.  Paragraph 3-2 identifies specific presumptions that apply to physical disability evaluation.  These include 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.  Further, 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.  The presumption of fitness may be overcome if the evidence establishes that was in fact physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be reinstated on active duty to undergo PDES processing has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The applicant may have discussed and been recommended to be evaluated by a MEB prior to his release from active duty.  However, by regulation a Soldier being processed for separation for reasons other than physical disability who continues to perform his or her assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation creates a presumption that the Soldier is fit. 

3.  In this case the applicant continued to perform the duties of his grade and specialty through the date of his REFRAD, as evidenced by the last OER on file in his record.  In addition, he has continued to satisfactorily perform those duties in his USAR unit since his REFRAD.  As a result, there is no evidence that his medical condition rendered him unfit for further service at the time of his REFRAD.
4.  Further, in spite of the discussion of an MEB in the DA Forms 3349 submitted by the applicant, there is not sufficient medical evidence to overcome the regulatory presumption that he was fit given his continued satisfactory performance of duty while he remained on active duty and his subsequent satisfactory performance of duty in the USAR.  The evidence fails to support a conclusion that he had a condition that did not meet medical retention standards at the time of his REFRAD.  As a result, there is an insufficient evidentiary basis to support his reinstatement for PDES processing.  

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)                                         AR20110024834



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ABCMR Record of Proceedings (cont)                                         AR20110024834



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