BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120005794 


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 reconsideration of the Army Board for Correction of Military Records (ABCMR) decision denying his request for medical retirement.

2.  The applicant states he was never processed through the Physical Disability Evaluation System.  He believes his condition warranted a medical retirement discharge and an evaluation would have reflected this.

3.  The applicant provides:

* a letter from the Department of the Air Force, Review Boards Office, dated 9 May 2011
* a memorandum for the Physical Evaluation Board (PEB) Liaison Officer (PEBLO), dated 7 July 2004
* a DA Form 3349 (Physical Profile), dated 7 July 2004
* a memorandum from the Behavioral Health Clinic, U.S. Army Medical Department Activity, Fort Stewart, GA, dated 23 July 2004

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110011674 on 24 January 2012.

2.  The letter from the Department of the Air Force Review Boards Office, the memorandum for the PEBLO, the DA Form 3349, and the memorandum from the Behavioral Health Clinic at Fort Stewart he submitted are new evidence which requires consideration by the ABCMR.

3.  He enlisted in the South Carolina Army National Guard (SCARNG) on 11 September 1984.

4.  On 17 February 2003, he was ordered to active duty in support of Operation Enduring Freedom.  He was deployed to Iraq from 16 April 2003 through 3 March 2004.

5.  On or about 15 March 2004, he was assigned to the U.S. Army Garrison (USAG) Holding Battalion, Fort Stewart, GA, for medical processing.

6.  On 20 May 2004, he voluntarily requested to participate in the Reserve Component Medical Holdover Medical Retention Processing Program for the purpose of completing medical treatment and care.

7.  On 17 June 2004, he was retained on active duty and assigned to USAG, Fort Stewart, to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Processing Program.

8.  The memorandum he provided for the PEBLO, dated 7 July 2004, Subject: Letter of Intent (LOI) for Medical Evaluation Board (MEB) Processing, indicated he did not meet retention standards due to chronic recurrent neck and back spasm interfering with satisfactory performance of duty.  The LOI stated he would be processed by an MEB to determine fitness for further military service.  His condition was determined to have existed prior to service and to have been service aggravated.

9.  The DA Form 3349, dated 7 July 2004, he provided assigned him a permanent "3" physical profile for U-upper extremities and L-lower extremities and indicated he needed an MEB due to his inability to carry and fire an individual assigned weapon.  On 27 July 2004, this profile was changed to a permanent "2" for U-upper extremities and L-lower extremities.

10.  The memorandum he provided from the Behavioral Health Clinic at Fort Stewart, dated 23 July 2004, stated he was psychiatrically cleared from the clinic.  He had been treated for an adjustment disorder since 29 April 2004.

11.  On 22 September 2004, he was released from active duty by reason of his completion of required active service and returned to his SCARNG unit.  He completed 1 year, 7 months, and 13 days of active service that was characterized as honorable.

12.  On 30 December 2004, he was notified he had completed the required years of service for eligibility for retired pay upon application at age 60 (20-year letter).  On 10 September 2005, he was discharged from the SCARNG and transferred to the Retired Reserve.

13.  The letter he provided from the Department of the Air Force Review Boards Office, dated 9 May 2011, advised him he did not meet the criteria for the Physical Disability Board of Review to review his case.  In the letter he highlighted the sentence "you were found to be eligible for retirement."  

14.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) 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, and S-psychiatric.  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.  Numerical designator "4" indicates an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean the individual is unfit because of physical disability as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

15.  Army Regulation 635-40 further provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual's performance and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments.


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

DISCUSSION AND CONCLUSIONS:

1.  While documents he submitted show he had a permanent "3" profile for his neck and back on 7 July 2004, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In fact, according to the annotation on the profile, his condition was downgraded to permanent "2" on 27 July 2004, thereby showing improvement in his condition.  Based on this improvement it is likely he was found to meet retention standards.  Therefore, an MEB was likely no longer appropriate.  His complete medical records for the period from 27 July 2004 until his release from active duty were not available for review.

2.  He was psychiatrically cleared from the Behavioral Health Clinic on 23 July 2004 after having been treated for an adjustment disorder.

3.  He continued to receive treatment from 27 July 2004 until his release from active duty on 22 September 2004.  It is apparent that his condition improved in that he was released from further medical treatment and returned to his unit.  There is no evidence that he was unfit for duty at that time.

4.  He was discharged from the SCARNG about 1 year later, but it was not due to any medical condition.  He was transferred to the Retired Reserve.

5.  There is an insufficient basis to grant his request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110011674, dated 24 January 2012.



      _________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)                                         AR20120005794



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ABCMR Record of Proceedings (cont)                                         AR20120005794



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