BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120008859 


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, her narrative reason for separation be changed from "failure to comply with family care plan" to "medical discharge."

2.  The applicant states:

* she experienced frequent harassment and intentional discharge attempts  in a way that would not qualify her for a 20-year letter/retirement, disability benefits, and/or reenlistment
* she made several complaints regarding these issues to Headquarters, Fort Totten
* her discharge orders do not mention her reason for discharge
* she did not refuse to comply with or refuse to complete a family care plan 

3.  The applicant provides:

* Letter, 4220th United States Army Hospital, Shoreman, NY, dated 3 August 2003
* DA Form 3349 (Physical Profile), dated 3 August 2003
* DA Form 2808 (Report of Medical Examination), page 3, dated 8 January 2003
* Outpatient medical record extract, Northport Veterans' Affairs Medical Center, Northport, NY dated 14 October 2006
* Medication profile, dated 14 October 2006
* Letter, Headquarters, U.S. Regional Readiness Command, Ernie Pyle Army Reserve Center, Office of the Inspector General, Fort Totten, NY, dated 13 July 2004
* Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Point), dated 6 January 2012
* Orders Number 07-041-00085, Headquarters, Army Reserve Medical Center, Pinellas Park, FL, dated 10 February 2007
* DA Form 3349, dated 3 March 2004
* Orders Number 06-067-00072, Headquarters, U.S. Army Civil Affairs and Psychological Operations Command (Airborne), Fort Bragg, NC, dated 8 March 2006
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period August 2005 through July 2006

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.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, her ARPC Form 249-E shows she enlisted in the U.S. Army Reserve (USAR) on 20 September 1985.  Her military occupational specialty (MOS) was 68J (Medical Logistics Specialist). 

3.  The applicant's DD Form 2808, dated 8 January 2003 shows she was found not qualified for service due to low back pain.

4.  The applicant's DA Form 3349, dated 3 August 2003, shows she was given a permanent profile for low back pain.  Her profile was coded "113131" in the physical profile serial system factors (PULHES – (P)hysical capacity or stamina, (U)pper extremities, (L)ower extremities, (H)earing and ears, (E)yes, and p(S)ychiatric).  This form also shows she was not able to lift any weights.

5.  A memorandum, dated 3 August 2003, signed by the applicant's commanding officer shows:

* the applicant had been notified of an upcoming MOS/Medical Retention Board (MMRB)
* the applicant had been assigned to the unit since 16 January 1998 and during this time she received a permanent profile for low back pain
* the applicant was limited to walking no more than 20 feet and not permitted to lift
* the limitation on lifting limited her ability to perform in her MOS, which required occasional lifting of 50 pounds and carrying a distance of 6 feet, occasionally pushing and pulling 50 pounds 3 feet
* PULHES for her MOS was "222332"
* he strongly felt she was unable to perform in her duty MOS and she was not able to meet the requirements of the Army Physical Fitness Test (AFPT)
* he recommended that she be medically discharged

6.  On 3 March 2004, the applicant was given a DA Form 3349 which shows she was given a permanent profile for low back pain.  Her profile was coded "112121" in the physical profile serial system factors.

7. On 13 July 2004, the Office of the Inspector General, Fort Totten, NY, advised the applicant an inquiry had been initiated with regard to her complaint of harassment.  However, the results of the inquiry are unavailable.

8.  A medical record extract from the Northport Veteran's Medical Center, dated 14 October 2006, shows the applicant was seen for recurrent major depression.

9.  Orders Number 07-041-00085, Headquarters, Army Reserve Medical Command, Pinellas Park, FL, dated 10 February 2007, honorably discharged the applicant from the USAR.

10.  The interactive Personnel Electronics Records Management System (iPERMS) shows the applicant was voluntarily discharged due to parenthood. 

11.  Army Regulation 135-178 provides for the separation of enlisted personnel of the U.S. Army Reserve and Army National Guard.  

     a.  Paragraph 6-2 of this regulation covers discharge for dependency or hardship.  It states in pertinent part that upon the request of a Soldier and approval of the separation authority, separation may be directed when it is considered that continued membership and service on active duty (AD), full-time National Guard duty, or active duty for training (ADT), would result in genuine dependency or undue hardship.  Separation may be approved when all of the following circumstances exist:  (1) The hardship or dependency is not temporary; (2) Conditions have arisen or have been aggravated to an excessive degree since entry in the Army, and the Soldier has made every reasonable effort to remedy the situation; (3) The administrative separation will eliminate or materially alleviate the condition; and (4) There are no other means of alleviation reasonably available.

     b.  The separation authority may approve discharge on the basis of a physical condition not mounting to disability that potentially interferes with assignment to or  performance of military duty.

12.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that Reserve Component (RC) 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.

13.  Army Regulation 40-501 explains the PULHES.  To determine medical standards for different jobs, and to make sure that Soldiers are medically qualified to perform the duties of that job, the Army has developed a medical profile indicator, known as the physical profile serial system.  The physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  The functions of the various organs, systems, and integral parts of the body are considered.  In developing the system, the functions have been considered under six factors designated "P–U–L–H–E–S."

14.  Department of Defense Instruction 1332.38, definition E-2.1.20, defines NDR impairments as "impairment of members of the RC 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 RC."

15.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages - the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of 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 his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

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

17.  Department of Defense Instruction (DODI) 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for members with service-incurred or service-aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve.

18.  Section E3.P3.4 of DODI 1332.38 states that determining whether a member can reasonably perform his or her duties includes consideration of:

* common military tasks – duties, for example, whether the member is routinely required to fire his or her weapon, perform field duty, or wear load bearing equipment or protective gear
* physical fitness test – whether the member is medically prohibited from taking the respective service's required physical fitness test
* deployability – when a member's office, grade, rank or rating requires deployability, whether a member's medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the continental United States
* special qualifications – for members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment, or the member has an alternate branch or specialty, or whether reclassification or reassignment is feasible

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have her narrative reason for separation changed from "failure to comply with family care plan" to a "medical discharge" was carefully considered.

2.  Records show she was evaluated by an MMRB; however, the results of the MMRB are unavailable as well as the facts and specific circumstances surrounding her discharge.  

3.  The MMRB is an administrative screening board charged with the responsibility to evaluate a Soldier's ability or inability to physically perform duties required of his/her MOS in a worldwide field environment.  The MMRB is not part of the PDES but it feeds into the system.  

4.  Although the applicant contends she should have a medical discharge, her iPERMS record shows she was voluntarily discharged for parenthood.  Her medical records are unavailable for review and she fails to provide the findings of the Inspector General inquiry.  Further, she provides a duly-constituted separation order honorably discharging her.  This document carries with it a presumption of government regularity in the discharge process.

5.  Therefore, absent evidence to the contrary, it is concluded her separation processing was accomplished in accordance with the applicable regulation and the requirements of law and regulation were met and her rights were fully protected throughout the separation process.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120008859



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ABCMR Record of Proceedings (cont)                                         AR20120008859



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