IN THE CASE OF:	  

		BOARD DATE:	    11 December 2012

		DOCKET NUMBER:  AR20120004054 


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, reinstatement to active duty to medically process through the Physical Disability Evaluation System (PDES) to establish a medical retirement due to physical disability.   

2.  The applicant states Title 10, U.S. Code, Chapter 61, Section 1552, requires that a Physical Evaluation Board (PEB) be ordered after her 5 October 2000, (Medical Evaluation Board (MEB)) proceedings.  The absence of the PEB process denied her eligibility for a medical/physical disability retirement.

3.  The applicant provides a letter of reference, documents and historical facts, in addition to a compendium, which contains many of her active duty records for the period 1984 through 1992.  She also provides U.S. Army Reserve (USAR) records for the period 1992 through 2002 in addition to numerous civilian medical records for the period 1994 through 2011.

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.  On 21 December 1978, the applicant was appointed a Reserve commissioned officer in the rank/grade of second lieutenant/O-1 and detailed to the military intelligence branch.  Shortly thereafter, she was ordered to active duty to attend the Military Intelligence Tactical/Strategic Officer Basic Course.

3.  On 1 January 1983, she was promoted from the rank/grade of first lieutenant/O-2 to captain/O-3.

4.  On 30 January 1990, she acknowledged she would be released from active duty, on 1 July 1990, as a result of a second non-selection for promotion to the next higher grade.

5.  On 1 July 1990, she was honorably released from active duty and transferred to the USAR Control Group (Reinforcement).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she completed
11 years, 5 months, and 24 days of active service during this period.  

6.  On 20 December 1990, the applicant was promoted to the rank/grade of major/O-4.

7.  The applicant provides a letter, dated 21 January 1992, from the Department of Veterans Affairs (VA), which shows she was approved for disability compensation for impaired vision.

8.  Her records contain a memorandum from the Chief, Office of Promotions, Reserve Components, dated 18 June 1998, which shows she was considered but not selected for promotion by a USAR Components Selection Board.

9.  Her records contain Orders A-12-002360, dated 22 December 1999, issued by the U.S. Total Army Personnel Command, which shows she was ordered to report for active duty not later than 3 January 2000, for a period of 175 days.

10.  The applicant provided a partial copy of an MEB Summary from Walter Reed Army Medical Center, dictated on 18 September 2000, which shows she was diagnosed with relapsing, remitting multiple sclerosis (MS) and bilateral optic neuritis.  The complete facts and circumstances surrounding the applicant's MEB process are not available, however, her condition and prognosis at the time indicated a mild to moderate physical impairment due to her decreased visual acuity and left lower, greater than upper extremity, hemiparesis.  Her prognosis was fair, given the known chronic and progressive nature of MS.  Her ability to work was good as evidenced by her continued service in the military without prior recognition of her medical disorder by military physicians.  The applicant was presumably referred to a PEB in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  However, the MEB Summary was not authenticated by the applicant or the approval authority and it remains unclear if she presented the finding to her chain of command or if her chain of command was aware of her ailments.  

11.  On 9 January 2002, the USAR Personnel Command, St. Louis, MO, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified her she had completed the required years of qualifying reserve service and would be eligible for retired pay upon application at age 60.  

12.  Her records contain Orders C-05-212102, dated 1 May 2002, issued by USAR Personnel Command, St. Louis, MO, which shows she was reassigned to the Retired Reserve, effective 1 May 2002, due to non-selection for promotion. Her statement of retirement points shows she actively participated during the between her MEB in 2000 and May 2002.

13.  The applicant provides a VA Form 21-526b (Veteran's Supplemental Claim for Compensation) dated 19 July 2011 which shows she requested to file a claim for an increased evaluation for her service connected disability for her vision and to claim service-connection for MS based on her MEB. 

14.  Her records show that throughout much of her career she worked as a systems officer developing, coordinating, and monitoring intelligence collection and validation activities at a variety of locations.  Her officer evaluation reports consistently showed she performed exceptionally well, always exceeding requirements and whose potential for promotion was annually rated as "Best Qualified" by her superiors.  The final evaluation report on file in the applicant's Army Military Human Resources Record is an annual report which covered the period 25 February 2000 through 24 February 2001.  This report shows the applicant was evaluated as a National Systems Officer for Headquarters, North American Aerospace Defense Command and the United States Space Command.  The evaluation shows the applicant received a profile in February 2000, and she did not take the Army Physical Fitness Test during the rating period.  However, the report gives no indication the applicant suffered from any medical or mental condition which prevented her from performing the duties of her grade and specialty.  In addition, her prior evaluations routinely showed she was able to pass her physical fitness test and maintain the appropriate height and weight standard.
15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

16.  Army Regulation 635-40 states 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.  This regulation also states in:

	a.  Paragraph 2-2b(1) 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/her continued performance of duty (until he/she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to a PEB unless his/her physical defects raise substantial doubt that he/she is fit to continue to perform the duties of his/her office, grade, rank, or rating.

	b.  Paragraph 2-2b(2) that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that:

		(1)  the member, in fact, was physically unable to adequately perform the duties of his/her office, grade, rank, or rating even though he/she was improperly retained in that office, grade, rank, or rating for a period of time; and

		(2)  acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him/her unfit for further duty.

	c.  Paragraph 2-2b(3) that when the member's referral for physical evaluation is related to physical examinations given as a part of non-disability retirement processing (voluntary or mandatory), the above evidence must be clear and convincing to overcome the presumption of fitness.  In other cases (resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), the presumption of fitness may be overcome by a preponderance of evidence.

	d.  Paragraph 2-1 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 or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

17.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that Reserve Component Soldiers with nonduty-related (NDR) medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  The process is designed to give the Soldier with NDR impairment the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits.

18.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

19.  Department of Defense Instruction 1332.38, definition E-2.1.20, defines NDR impairments as "impairment of members of the Reserve Component that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation.  Members with NDR impairments are eligible to be referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits.  The determination of whether a case is forwarded to the PEB as an NDR case (as opposed to a duty-related case) rests with the Reserve Component."

20.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be reinstated on active duty to undergo PDES processing in order to establish a medical retirement due to physical disability has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The applicant served honorably and faithfully in the USAR from December 1978 through May 2002, when she was assigned to the Retired Reserve due to non-selection for promotion.

3.  Throughout much of her career she worked as a systems officer developing, coordinating, and monitoring intelligence collection, and validation activities at a variety of locations.  Her officer evaluation reports consistently showed she performed exceptionally well, always exceeding requirements and whose potential for promotion was annually rated as "Best Qualified" by her superiors.  

4.  The applicant provided a number of military and civilian medical records which document her diagnosis and treatment for bilateral optic neuritis and relapsing, remitting MS.  The main issue is the applicant's fitness for duty throughout her service:

   a.  She was assigned a VA service-connected disability rating in January 1992, while in the USAR for impaired vision; yet, it does not appear this condition hindered her ability to perform her duties over the next 10 years as evidenced by her evaluation reports.	

	b.  The MEB she completed in September 2000 appears to have referred her to a PEB.  However, it remains unclear if she presented the findings to her chain of command or if her chain of command was aware of her ailments.  This is further complicated by the fact that her MEB summary was neither authenticated by the applicant nor the approving authority.  
   c.  Nowhere in any of her evaluation reports does it show she could not perform the duties required of her grade, position, or area of concentration (AOC).

   d.  Regardless, a VA rating has nothing to do with fitness.  Many Reserve Component Soldiers have VA service-connected disability compensation yet they continue to serve because they are not unfit to perform their duties.  The applicant in this case has not submitted any documentary evidence which shows she was unfit to perform her duties.  Her continued successful service in her AOC suggests and supports a presumption of fitness. 

	e.  In any case, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

	f.  The PDES provides that the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of office, grade, rank, or rating.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be awarded if the condition is unfitting.  

	g.  The applicant's September 2000 MEB presumably should have resulted in a PEB.  However, the applicant's records do not contain nor did she provide a properly-constituted MEB Summary.  More importantly, her evaluation reports showed she continued to successfully perform her duties after the MEB.

	h.  Further, in spite of the presumed referral to a PEB in the MEB Summary submitted by the applicant, there is not sufficient medical evidence to overcome the regulatory presumption that she was fit given her continued exemplary performance of duty while on active duty and in the USAR.  The evidence fails to support a conclusion that she had a condition that did not meet medical retention standards at the time of her assignment to the Retired Reserve.  

5.  In view of the foregoing, the applicant is not entitled to the 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)                                         AR20120004054



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ABCMR Record of Proceedings (cont)                                         AR20120004054



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