IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120007672 


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 her Reserve Retirement be changed to Physical Disability Retirement. 

2.  The applicant states she should have been retired due to physical disability for several conditions, including migraine headaches and hysterectomy with migraine headache side effects.  When she was demobilized after being on active duty for 8 years, she was not counseled by her commanding officer and was not aware that she could be considered for possible disability.

3.  The applicant provides in support of her request:

* a memorandum from her unit commander
* Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter)
* ARPC Form 249-E (Chronological Statement of Retirement Points)
* orders transferring her (Voluntarily) to the Retired Reserve
* orders releasing her from active duty
* several orders for active duty covering various continuing periods from January 2003 to May 2011
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) covering most of the time between January 2003 and May 2011 
* Department of Veterans Affairs (VA) Rating decision, dated 27 August 2011
* applicant's military and civilian health records


CONSIDERATION OF EVIDENCE:

1.  The applicant, a career U.S. Army Reservist who spent the vast majority of the time between 2003 and 2011 on active duty as an administrative specialist, transferred to the Retired Reserve as a master sergeant on 1 October 2011.  She had 27 years and 10 months of qualifying service.

2.  Her last noncommissioned officer evaluation report on file, for the period ending 30 September 2010, shows her competence was rated as “excellence” and she last passed her Army Physical Fitness Test on 7 April 2010 and “exuded the physical and mental strength to endure long hours of work under stressful conditions.”  It does not indicate that she was on a profile.

3.  The documents that she submitted in support of her request include:

	a.  A 20 December 2011 memorandum for record where her commander writes that her abrupt decision to retire without proper counseling or health evaluation possibly deprived her of disability retirement benefits.  He observed her experiencing debilitating migraines.  In 2005, they were going to lunch and she became unable to even do that.  She had to be dismissed for the day, but was at work the next day.  Subsequently he saw this condition "consistently compromise (her) quality of life…She is, often unable to achieve professional or personal productivity." 

	b.  The 27 August 2011 VA rating decision granted her:

* 100 percent temporary disability from May to July 2011 for surgical hysterectomy and 30 percent after 1 July 2011
* 30 percent for migraine from 31 May 2011
* 10 percent for abdominal scar from the hysterectomy from 31 May 2011
* 10 percent each for left and right repaired bunions from 31 May 2011
* 10 percent for lichen planus (non-contagious skin or mouth rash) from 31 May 2011
* 10 percent for degenerative arthritis of both knees from 31 May 2011
* special housebound compensation from 31 May to 1 July 2011
* special compensation for anatomical loss of a creative organ from 31 May 2011

	c.  DD Form 2807 (Report of Medical History), dated 12 August 2003 – physician noted arthritis, bunions of both feet, occasional swollen knees, knees occasionally lock-up or give-way, fractured thumb (1999), frequent headaches (for past 6 years), and irregular menstrual cycle.

	d.  DD Form 2697 (Report of Medical Assessment), dated 20 August 2003 – applicant reported bilateral knee pain, and lost work for swollen bunions and headaches.

	e.  DD Form 2796 (Post Deployment Health Assessment), dated 20 August 2003 – applicant reported one visit to sick call with swollen, stiff or painful joints.

	f.  DD Form 2796, dated 3 December 2008 – applicant reported she was in good health; had spent no time hospitalized during the 60 months; she had bad headaches that still bothered her but she had not been on profile; and had trouble remembering things which still bothered her but she had not been on profile.  However, the health care provider indicated she was on profile or limited duty for "lower extremity" which was incurred or worsened during the deployment.  No referral was made.  

	g.  DD Form 2796, dated 24 May 2011 - the applicant reported bad headaches; swollen, stiff  or painful joints; trouble concentrating, easily distracted; forgetful or trouble remembering things skin diseases or rashes.  She reported a total hysterectomy on 30 March 2011 and indicated she was taking medication for migraines, knee pain, and pseudo dementia.  She indicated that she would follow-up with her private health care provider and/or the VA for all of her problems.   

4.  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 office, rank, grade or rating because of disability incurred while entitled to basic pay.

5.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states the mere presence of an 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 his or her office, grade, or rank.  

6.  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.  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 a 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.

7.  Department of Defense Instruction 1332.38, paragraph E3.P3.5 states the “Presumption of Fitness” rule will be applied to a Soldier who enters the physical disability evaluation system and his request for voluntary retirement has been approved; when an officer has been approved for Selective Early Retirement; when an officer is within 12 months of mandatory retirement due to age or length 
of service; or when an enlisted member is within 12 months of his retention control point (RCP) or expiration of active obligated service (EAOS) but will be eligible for retirement at his RCP/EAOS.

8.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  Soldiers are separated (with severance pay or retired) for physical disability because they cannot perform duty.  There is no available evidence that the applicant was unable to perform her duty.

2.  Her commander’s 20 December 2011 memorandum for record indicated that in 2005 the applicant had a debilitating migraine and he subsequently saw that this condition “consistently compromise” the applicant’s quality of life, where she was “often unable to achieve professional or personal productivity.”  However, as late as 30 September 2010 her evaluation report noted that she was not on profile and she “exuded the physical and mental strength to endure long hours or work under stressful conditions.”  While the applicant may have had medical problems, there is insufficient evidence to show they prevented her from performing her military duties.

3.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.  

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)                                         AR20110013215



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ABCMR Record of Proceedings (cont)                                         AR20120007672



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