BOARD DATE:	 20 November 2012 

		DOCKET NUMBER:  AR20120008770 


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 correction of his military records to show he was medically discharged or retired due to physical disability.

2.  The applicant states he was told by his commander that he would be referred to a medical evaluation board (MEB) or a physical evaluation board (PEB).

	a.  Based on a diagnosis of diabetes mellitus type II in 2006, a PEB found he was fit for duty on 17 April 2007.

	b.  He has a line-of-duty (LOD) investigation for his knee anterior cruciate ligament (ACL) repair, but he was not issued a physical profile.

	c.  The Department of Veterans Affairs (VA) granted him service connection for his medical conditions, as follows:

* diabetes mellitus type II – 20 percent effective 20 December 2006
* left knee ACL repair – 10 percent effective 25 June 2006

	d.  On 18 March 2010, the commander requested referral of the applicant to an MEB based on a diagnosis of diabetes mellitus type II in 2006.

	e.  The applicant states he had additional medical issues that the MEB should address and asked his commander for LOD investigations for the following medical issues:

* depression
* anxiety
* chronic kidney disease
* hearing loss
* high blood pressure
* hyperlipidemia
* chronic foot pain (diabetic neuropathy)

	f.  He adds his health worsened and this is documented by his command.

	g.  He was selected for retirement by an Enlisted Qualification Retention Board (QRB), but he was also told by his unit's Readiness/Assistant Operations Noncommissioned Officer (NCO) that he would be medically discharged.

	h.  He was honorably discharged on 30 June 2011 and transferred to the Retired Reserve.

	i.  The applicant asserts that he was given bad advice, the PEB did not consider all of his medical conditions, and he should be processed through the Physical Disability Evaluation System (PDES) with consideration of all of his medical conditions.

3.  The applicant provides copies of numerous documents relating to his military service and medical conditions that include LOD investigation memoranda, physical profiles, MEB/PEB proceedings, QRB and separation documents, email messages, and VA rating decisions, all of which are specifically identified in the listing of enclosures to his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Army National Guard (ARNG) of the United States (ARNGUS), U.S. Army Reserve (USAR), Regular Army (RA), and U.S. Navy/Naval Reserve spanning the period 4 February 1986 through 13 August 2004.

2.  He had a break in service from 14 August through 26 October 2004.

3.  He enlisted and reentered the ARNGUS and Texas ARNG (TXARNG) on 27 October 2004.  He was awarded military occupational specialty (MOS) 56M (Chaplain Assistant).

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 May 2007 shows he entered active duty as a member of the ARNGUS on 18 August 2005 and he was honorably released from active duty on 23 May 2007 to the control of the TXARNG.  He completed 1 year, 9 months, and 6 days of net active service during this period.

5.  The applicant's DD Form 220 (Active Duty Report) for the period ending 29 August 2007 shows he served on active duty as a member of the ARNGUS from 31 July through 29 August 2007.  The applicant indicated he underwent a medical examination for military service on 27 August 2007 at Fort Bliss, TX, and he was issued a permanent physical profile for type II diabetes.

6.  The applicant's DD Form 214 for the period ending 15 October 2009 shows he entered active duty as a member of the ARNGUS on 1 October 2008 and he was honorably released from active duty on 15 October 2009 to the control of the TXARNG.  He completed 1 year and 15 days of net active service during this period.

7.  A TXARNG memorandum, dated 2 November 2010, subject:  Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), notified the applicant of his eligibility for retired pay at age 60.

8.  A TXARNG memorandum, dated 23 December 2010, subject:  Notification of Enlisted QRB Review, notified the applicant that his records would be reviewed by an enlisted QRB to determine his retention potential and acceptability for reenlistment or extension of enlistment, and to provide career progression of qualified enlisted Soldiers.

	a.  This memorandum shows the board would consider the applicant's deployability, including his medical readiness and deployment history.  It also shows that failure of a Soldier to review his or her record by 22 March 2011 and to provide required updates would not be grounds to invalidate the board results.

	b.  On an unspecified date, the applicant indicated he had reviewed his unit commander's comments, he declined to review his military personnel file, he elected not to be reviewed by the QRB, and stated he would retire not later than 30 September 2011.  He added, "I have elected this option due to having medical issues that are service connected.  I'm currently in the process of initiating an MEB/PEB packet."

9.  TXARNG Orders 025-1013, dated 25 January 2011, released the applicant from position number 110/01 (MOS 56M1O) due to a duty position qualification of "not qualified" and transferred him to position number 107-02 citing a position number excess code of "Active Duty Medical Extension/Medical Hold/Warrior Transition Unit T10" effective 13 January 2011.

10.  National Guard Bureau Form 22 (Report of Separation and Record of Service) shows the applicant was honorably discharged from the TXARNG and ARNGUS on 30 June 2011 and transferred to the Retired Reserve.

	a.  The authority and reason is shown as National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-36r (Not Selected for Retention by a QRB and the Soldier Elects to be Reassigned to the USAR Control Group (Reinforcement) or the Retired Reserve).

	b.  He had completed:

* 6 years, 8 months, and 4 days of net service during this period
* 5 years, 8 months, and 15 days of prior Reserve Component service
* 12 years, 7 months, and 26 days of prior active Federal service
* 25 years and 15 days of total service for pay
* 20 years, 11 months, and 28 days of total service for retired pay

11.  TXARNG Orders 188-1027, dated 7 July 2011, reassigned the applicant to the Retired Reserve effective 30 June 2011 under the provisions of National Guard Regulation 600-200, paragraph 6-36r.

12.  A review of the applicant's military personnel records failed to reveal a copy of any MEB or PEB proceedings.

13.  The applicant provides the following documents:

	a.  MEB Checklist completed by the applicant (undated);

	b.  two informal LOD Investigations that show:

		(1)  the applicant's injury of left knee, complete ACL tear/mild impaction fracture of the lateral femoral condyle was evaluated.  The attending physician noted the applicant had knee instability since twisting his left knee during pre-deployment training in October 2005, he twisted it again on 24 December 2005, and that the injury may result in temporary disability.  The commander determined the injury was incurred in the LOD and a formal LOD investigation was not required.  The LOD investigation was approved on 29 March 2006;

		(2)  the applicant's disease of type II diabetes was diagnosed while serving on active duty.  The attending physician noted the medical opinion was based on medical records, dated 20 December 2006, and that the disease may result in permanent disability.  The commander determined the disease was incurred in the LOD and a formal LOD investigation was not required.  The LOD investigation was approved on 29 May 2007;

	c.  two DA Forms 3349 (Physical Profile) pertaining to the applicant that show he was issued a permanent physical profile on:

* 21 March 2007 – diabetes mellitus type II
* 14 August 2007 – mild to moderate mixed hearing loss of the right ear

	d.  a Standard Form 507 (Clinical Record – Functional Capacity Certificate), completed by the applicant on an unspecified date that is absent any entries from an examining physician;

	e.  a DA Form 3947 (MEB Proceedings), undated, that shows the applicant does not meet retention standards for diabetes mellitus type II.  It also shows he does meet retention standards for status post-left ACL reconstruction, hearing loss, and hematuria.  The MEB proceedings do not show a recommendation or any other entries by Army officials;

	f.  a DA Form 199 (PEB Proceedings) that shows a PEB convened on 17 April 2007 to evaluate the applicant's type II diabetes, well controlled on oral agents:

		(1)  the board found the applicant fit for duty and returned him to duty, and

		(2)  the applicant concurred with the PEB findings and recommendations on 19 April 2007;

	g.  a VA Rating Decision, dated 3 May 2008, that shows the following decisions were made regarding the applicant's claim:

		(1)  he was granted service connection for:

* diabetes mellitus type II – 20 percent effective 24 May 2007
* status post-ACL repair, left knee – 10 percent effective 24 May 2007
* scar, left knee – 0 percent effective 24 May 2007
* hearing loss, right ear – 0 percent effective 24 May 2007
* inguinal hernia – 0 percent (was continued)

		(2)  service connection was denied for:

* vasectomy
* hematuria
* hearing loss, left ear

	h.  a DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) that shows the applicant passed the APFT on 16 November 2008, 15 May 2009, and 9 January 2010;

	i.  a Medical Operational Data System (MODS) – Individual Medical Readiness Record, as of 16 March 2010, that shows the applicant was assessed for deployment limitations as:

* non-deployable medical profile – red (yes)
* limited duty status – green (no)

	j.  a DA Form 7652 (PDES Commander's Performance and Functional Statement), dated 16 March 2010, that shows, in part:

		(1)  the applicant was a Reserve Component Soldier with 20 qualifying years of service at the time of his mandatory removal date for purposes of eligibility for non-Regular retirement;

		(2)  the commander indicated the applicant does not perform duties in his MOS, he was in an appropriate position for his grade and MOS, and his medical conditions/limitations affect the unit.  He added, "in a field environment his duties are limited, ideally he can only work about 6 hours a day in accordance with his permanent profile"; and

		(3)  the commander recommended against retaining the applicant;

	k.  a memorandum, dated 18 March 2010, that shows the applicant's commander requested referral of the applicant to an MEB based on a diagnosis of diabetes mellitus type II in 2006.  He recommended the applicant's separation from the service and consideration for military retirement;

	l.  two memoranda from the applicant's commander, dated 25 March 2010, that show the applicant had been informed that an MOS Medical Retention Board (MMRB) would evaluate his ability to perform in his primary MOS (PMOS) of 56M1O based on the limitations imposed by his permanent physical profile:

		(1)  he noted that the applicant did not intend to appear before the MMRB;

		(2)  he offered his evaluation by stating the applicant's "physical impairment, at times, partially detracts from his duties, but overall, he completes all tasks required of his PMOS at Unit Training Assemblies; however, in a field environment his abilities are limited"; and

		(3)  he recommended the applicant's separation from the service and consideration for military retirement;

	m.  a memorandum from the applicant's commander to the applicant, dated 25 March 2010, that notified the applicant that upon review of his medical condition, he was found medically unfit for retention in the ARNG:

		(1)  the commander notified the applicant of the rights and options available to him;

		(2)  the applicant indicated his condition was incurred in the LOD, he had a completed LOD investigation that he would forward with the approval memorandum, and he understood his case would be handled using different procedures.  He placed his signature on the document on 25 March 2010; and

		(3)  the applicant did not request review of his non-duty related medical disqualification(s) by a PEB.

	n.  email messages that show:

		(1)  on 7 June 2010, Sergeant First Class (SFC) J____ D____, the battalion Readiness/Assistant Operations NCO, notified the applicant that the next Soldier Readiness Processing (SRP) was set for 9-11 July 2010; and

		(2)  on 8 June 2010, Captain H____ S____, Medical Case Manager, Medical Operations Cell, TXARNG, followed up with the applicant by telephone and outlined the actions the applicant was to complete and medical documentation he was required to bring to the SRP in order for his packet to go forward;

	o.  four memoranda from the applicant to the Commander, Headquarters and Headquarters Battery, 1st Battalion, 133rd Field Artillery, Beaumont, TX, dated 20 December 2010; three medical record problem lists printed on 20 December 2010; and a physical profile, dated 14 August 2007, that show the applicant requested an LOD investigation based on the following diagnoses:

* depression (not otherwise specified)
* chronic kidney disease (unspecified)
* hearing loss (mild to moderate mixed, right ear)
* hematuria (microscopic)

	p.  a memorandum from the applicant to the Commander, Headquarters and Headquarters Battery, 1st Battalion, 133rd Field Artillery, Beaumont, TX, dated 23 December 2010, and a physical profile, dated 21 February 2010, for "pain in both feet, diabetes" and show the applicant requested a physical profile for post-ACL repair (left knee);

	q.  email messages that show:

		(1)  on 23 March 2011, SFC D____ explained to the battalion's Human Resources NCO that the applicant's QRB packet was submitted, but it still required a request for discharge/transfer to the Retired Reserve.  He also indicated that the command was reinitiating an MEB/PEB to determine if the applicant should be separated for medical reasons;

		(2)  on 24 March 2011, SFC D____ notified the applicant he was being scheduled for the SRP on 1 April 2011 and he should bring all of his medical documentation; otherwise, it may result in issuance of a temporary physical profile instead of a permanent physical profile;

		(3)  on 30 March 2011, SFC D____ notified the applicant that the date for the SRP had been changed to 2 April; however, the applicant would be scheduled for a later date; and

		(4)  on 30 November 2011, the applicant contacted the TXARNG Inspector General requesting an investigation into why he was not referred to an MEB prior to being retired on 30 June 2011;

	r.  a VA Medical Center, Houston, TX, medical report, dated 29 March 2011, and an undated memorandum under the signature of Dr. S____ T____ that show the applicant was seen on 28 March 2011 and his medical condition required that he not wear combat boots and/or any shoes that would compress his feet or are tight fitting;

	s.  a VA Rating Decision, dated 23 July 2012, that shows the following decisions were made regarding the applicant's claim:

		(1)  he was granted service connection for the following conditions (all associated with diabetes mellitus type II with erectile dysfunction):

* diabetic nephropathy with hypertension and chronic stage II kidney disease – 60 percent effective 16 October 2009
* hypertensive heart disease – 10 percent effective 22 March 2010
* tinea versicolor – 10 percent effective 22 March 2010
* peripheral neuropathy, left lower extremity – 10 percent effective 22 March 2010
* peripheral neuropathy, right lower extremity – 10 percent effective 22 March 2010

		(2)  service connection for conditions that had not changed was continued, as follows:

* diabetes mellitus type II with erectile dysfunction – 20 percent
* status post-left knee ACL repair – 10 percent

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  Although the ability of a Soldier to reasonably perform his duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.

	a.  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, rank, or rating.  Separation by reason of disability requires processing through the PDES.  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.

	b.  Paragraph 3-4 (LOD Decisions) provides that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LOD criteria to be eligible to receive retirement and severance pay benefits.

		(1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

		(2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.


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

16.  National Guard Regulation 600-200, paragraph 6-36 (State ARNG Separations), provides in subparagraph r that a Soldier who is not selected for retention by a QRB may elect to be reassigned to the USAR Control Group (Reinforcement) or Retired Reserve.

17.  Army Regulation 140-10 (Assignments, Attachments, Transfers, Details, and Transfers) provides policy and procedures on the transfer to and from the Retired Reserve.  Paragraph 6-1 (Eligibility) shows that assignment to the Retired Reserve is authorized and an eligible Soldier must request transfer if he or she (in part):

	a.  is entitled to receive retired pay from the U.S. Armed Forces because of prior military service;

	b.  has completed a total of 20 years of active or inactive service in the U.S. Armed Forces;

	c.  is medically disqualified for active duty resulting from a service-connected disability; or

	d.  is medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.

18.  Title 38, U.S. Code, sections 1110 and 1131, permit 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 an error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or 


her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was medically discharged or retired due to physical disability based on the recommendations and findings of MEB/PEB proceedings.  The applicant’s PMOS was 56M, Chaplain Assistant.

2.  The evidence of record shows:

	a.  two separate informal LOD investigations found the applicant's:

* injury of left knee, complete ACL tear/mild impaction fracture of the lateral femoral condyle sustained in late 2005 was incurred in the LOD
* disease of type II diabetes diagnosed while serving on active duty on 20 December 2006 was incurred in the LOD

	b.  the applicant was issued two permanent profiles for:

* diabetes mellitus type II on 21 March 2007
* mild to moderate right ear mixed hearing loss on 24 August 2007

	c.  on 17 April 2007, an informal PEB evaluated the applicant for type II diabetes and found him fit for duty.  The applicant concurred with the PEB findings and he was returned to duty.



3.  In March 2010, the applicant was informed by his commander that an MMRB would evaluate his ability to perform his PMOS based on the limitations imposed 
by his permanent physical profile.  He recommended the applicant's separation from the service and consideration for military retirement.  The applicant indicated he did not intend to appear before the MMRB.  

4.  On 25 March 2010, the applicant's commander notified him that he had been found medically disqualified for retention.  The applicant did not request review of his non-duty related medical disqualification(s) by a PEB.

5.  On 2 November 2010, the applicant was notified of his eligibility for retired pay at age 60.

6.  On an unknown date, he indicated he intended to retire by 30 September 2011.

7.  In March 2011, the applicant was notified of an SRP in April 2011.  He was advised that he should bring all of his medical documentation.  However, there is no evidence the applicant attended this SRP or any subsequent SRP.

8.  The evidence of record shows the applicant was afforded ample time and opportunity to comply with the requirements of various boards and procedures with respect to his medical readiness processing and the determination of his medical disqualification for retention.  It appears he voluntarily failed to appear before/prepare for any board that would have evaluated his abilities to perform duties in his PMOS.

9.  The evidence of record shows that under the laws governing the Army PDES, in order to be eligible to receive retirement and severance pay benefits, physically unfitting disabilities must meet certain LOD criteria.  There is no evidence that the applicant's condition (diabetes mellitus type II) was the direct cause for not performing active duty or inactive duty training.  

10.  It appears the commander felt the applicant was unfit for retention only because he could not perform his duties in a field environment.  However, the inability of a Soldier to reasonably perform his duties in all geographic locations under all conceivable circumstances will not serve as the sole basis for a finding of unfitness.

11.  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.

12.  The applicant was honorably discharged from the TXARNG and ARNGUS on 30 June 2011 and transferred to the Retired Reserve under the provisions of National Guard Regulation 600-200, paragraph 6-36r, based on his non-selection for retention by a QRB and election to be reassigned to the USAR Control Group (Retired Reserve).

13.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's separation processing.

14.  Thus, in view of the foregoing, the applicant's contention that his military records should be corrected to show he was medically discharged or retired due to physical disability based on the recommendations and findings of MEB/PEB proceedings is without merit.

15.  Both statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  The VA (and some other government agencies), on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair(s) the individual's industrial or social functioning.

16.  Therefore, in view of all of the foregoing, there is no basis for granting 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 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)                                         AR20120008770



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