BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120010694 


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 his previously-denied request for a medical discharge or medical retirement.

2.  The applicant states he provided extensive and detailed documentation regarding his medical condition, as outlined in the previous Record of Proceedings.  He is now providing additional medical information in support of his application.

	a.  He states the medical records from the period of his active duty in support of Operation Enduring Freedom in 2002 and 2003 show continuous and ongoing diagnosed medical issues that pertain to the medical conditions that were not reviewed.

	b.  He received DA Forms 2166-8 (Noncommissioned Officer Evaluation Reports (NCOERs)) covering the period November 2001 through November 2004.  While performing duty as platoon sergeant/military writer he received a rating of "Success" (Meets Standard) in Physical Fitness and Military Bearing.  He states that, for a senior noncommissioned officer (NCO), this rating clearly shows he was unable to perform his duties physically or at least to a reasonable level to fulfill his duties while on active duty.

	c.  He cites Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) stating it "governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties of his office, grade, rank (applicant's emphasis) or rating in such a way as to reasonably fulfill the purposes of his employment on active duty."

3.  The applicant provides a copy of a Standard Form (SF) 600E (Chronological Record of Medical Care), dated 26 March 2004.  (The applicant also referred to "additional information (i.e., medical records) from my active duty time" and specific NCOERs; however, he did not provide copies of these documents.)

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110012540, on 17 January 2012.

2.  In support of his request for reconsideration the applicant provides a copy of an SF 600E, dated 26 March 2004, that shows he reported to the medical clinic at General Leonard Wood Army Community Hospital, Fort Leonard Wood, MO, for a follow-up evaluation of back pain that was previously considered by the Board.  However, the applicant presents a new argument that warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 12 April 1983.  He completed training and he was awarded military occupational training (MOS) 71L (Administrative Specialist).

4.  He was honorably released from active duty on 12 April 1986 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.

5.  He reenlisted in the USAR on 4 March 1989 and he continued to serve in an enlisted status.  He was promoted to sergeant first class (SFC)/E-7 on 1 March 1999.

6.  A DA Form 2166-8 covering the period December 2000 through November 2001 shows the applicant performed the principal duty of platoon sergeant.  Part IV (Values/NCO Responsibilities), block c (Physical Fitness and Military Bearing), shows he passed the Army Physical Fitness Test (APFT) in May 2001; he met the Army Height/Weight standards, and the rater placed an "X" in the "Success (Meets Standard)" box.

	a.  The rater evaluated the applicant's potential for promotion and/or service in positions of greater responsibility as "Among the Best."
	b.  The senior rater evaluated his overall potential as "Successful" (Block 1
of 3) and his overall potential for promotion as "Superior" (Block 1 of 3).

7.  Two DA Forms 1059 (Service School Academic Evaluation Reports) covering the period 16 March 2002 through 18 May 2002 and 1 November through
8 December 2002 show the applicant achieved course standards for the Total Army Instructor Training Course and Small Group Instructor Training Course, respectively.  The DA Form 1059, dated 8 December 2002, shows the applicant passed the APFT in May 2002 and he met the Army Height/Weight standards.

8.  The applicant was ordered to active duty on 18 November 2002.

9.  A DD Form 2808 (Report of Medical Examination) shows the applicant was examined on 24 June 2002 for the purpose of retention in the USAR.

	a.  It also shows in:

		(1)  item 17 (Head, face, neck, and scalp), item 23 (Eyes), and item 24 (Ophthalmoscopic) checkmarks in the "Abnormal" column;

		(2)  item 27 (Heart - Thrust, size, rhythm, sounds) a checkmark in the "Normal" column;

		(3)  item 77 (Summary of Defects and Diagnoses) the entry:

* Head and Neck - poor control
* History of Atrial Fibrillation
* Dyspepsia
* Migraines

		(4)  item 78 (Recommendations - Further Specialist Examinations Indicated) the entry "Needs further evaluation of above before 'pass'; needs glaucoma evaluation."

	b.  The examining physician indicated the applicant was not medically qualified for service and recommended a medical board.

10.  An undated FEDS_HEAL Program Office memorandum to the applicant's unit commander shows the applicant underwent a physical examination.  It also shows checkmarks for the following:

* "Service member is physically fit for retention"
* "Service member is not eligible for retention under provisions of Army Regulation 40-501 (Standards of Medical Fitness); Soldier should be referred to a non-duty Physical Evaluation Board (PEB)" (This checkmark is lined-thru and initialed)
* "Over Maximum Authorized Weight" and "Blood Pressure"
* "Results of the physical examination requires commander to review and/or take appropriate action"
* "Exam sent to review/approval authority for review"

11.  A memorandum issued by Headquarters, 100th Division (Institutional Training), Louisville, KY, subject:  (applicant's name and Social Security Number), dated 12 January 2003, shows the Division Surgeon informed the applicant's commander that the applicant was eligible for retention under the provisions of Army Regulation 40-501.  The Division Surgeon indicated the applicant must follow up with his civilian medical provider regarding hypertension and have a body fat determination for the Army Weight Control Program.  The Division Surgeon also indicated the notation of abnormal heart was past medical history and was not current by the physical examination.

12.  A DA Form 6166-8 covering the period November 2002 through April 2003 shows the applicant performed the principal duty of instructor/writer.  Part IV, block c, shows he passed the APFT in October 2002; he met the Army Height/Weight standards, and the rater placed an "X" in the "Success (Meets Standard)" box.

	a.  The rater evaluated the applicant's potential for promotion and/or service in positions of greater responsibility as "Among the Best."

	b.  The senior rater evaluated his overall potential as "Successful" (Block 2 
of 3) and his overall potential for promotion as "Superior" (Block 2 of 3).

13.  A DA Form 638 (Recommendation for Award), dated 20 March 2003, shows the applicant was awarded the Army Commendation Medal (4th Award) for meritorious service from 18 November 2002 to 14 April 2003.  It also shows in Part III (Justification and Citation Data), Achievement #4, in part, "He sets the highest example for an NCO."

14.  A letter from an internal medicine physician, dated 14 April 2003, stated the applicant was evaluated and he was found to have low back pain.  The physician recommended the applicant refrain from running, jumping, pull-ups, push-ups, or other strenuous activity from 15 April to 5 May 2003.

15.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 18 November 2002, he was honorably released from active duty for training based on completion of required active service on 2 May 2003, and he was transferred to the
4th Battalion, 100th Regiment, 100th Division (Institutional Training), Huntsville, AL.

16.  A DA Form 2166-8 covering the period May 2003 through February 2004 shows the applicant performed the principal duty of instructor/writer.  Part IV, block c, shows he passed the APFT in December 2003; he met the Army Height/Weight standards, and the rater placed an "X" in the "Success (Meets Standard)" box.  He entered the comment, "accepted the challenge of being physically fit."

	a.  The rater evaluated the applicant's potential for promotion and/or service in positions of greater responsibility as "Among the Best."

	b.  The senior rater evaluated his overall potential as "Successful" (Block 1
of 3) and his overall potential for promotion as "Superior" (Block 1 of 3).

17.  The applicant was promoted to master sergeant (MSG)/E-8 effective
1 March 2004.

18.  A DA Form 2166-8 covering the period October 2004 through September 2005 shows the applicant performed the principal duty of chief instructor/writer.  Part IV, block c, shows he passed the APFT in March 2005; met the Army Height/ Weight standards, and the rater placed an "X" in the "Success (Meets Standard)" box.

	a.  The rater evaluated the applicant's potential for promotion and/or service in positions of greater responsibility as "Among the Best."

	b.  The senior rater evaluated his overall potential as "Successful" (Block 1
of 3) and his overall potential for promotion as "Superior" (Block 1 of 3).

19.  Orders 06-271-00018, issued by Headquarters, 108th Division (Institutional Training), Charlotte, NC, dated 28 September 2006, assigned the applicant to the USAR Control Group (Retired Reserve), effective 27 October 2006, under the provisions of Army Regulation 140-10 (Assignments, Attachments, Transfers, Details, and Transfers), based on completion of 20 or more years of qualifying service for retired pay at age 60.

20.  A review of the applicant's military personnel record failed to reveal any evidence that he was referred to an MOS Medical Review Board (MMRB).  There is also no evidence he was referred to a Medical Evaluation Board (MEB) for any unfitting medical condition(s).

21.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  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.

	a.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

	b.  Paragraph 2-2b provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his request for a medical discharge or medical retirement should be reconsidered based on an additional medical record and because his NCOERs show he was physically unable to perform his duties to a reasonable level.

2.  On 24 June 2002, the applicant underwent a physical examination and the examining physician indicated the applicant was not medically qualified for service.  The applicant underwent a follow-up physical examination and the results of both examinations were sent to the approving authority for review.

	a.  On 12 January 2003, the Division Surgeon found the applicant was eligible for retention under the provisions of Army Regulation 40-501.

	b.  There is no evidence the applicant was found medically unfit subsequent this finding.

3.  The evidence of record shows the applicant:

* passed the APFT on five occasions during the period 2001 through 2005
* was consistently evaluated by his raters as "Among the Best" and by his senior raters as both "Successful" and "Superior" during the period December 2000 through September 2005
* was promoted to MSG/E-8 on 1 March 2004
* transferred to the USAR Control Group (Retired Reserve) on 27 October 2006

4.  As such, the evidence of record refutes the applicant's contention that his NCOERs show he was physically unable to perform his duties to a reasonable level.  Moreover, the applicant's continued performance of duty offers a presumption of fitness that he has not overcome by evidence of any unfitting, acute, or grave illness/injury.

5.  In view of the foregoing, there is no 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 to amend the decision of the ABCMR set forth in Docket Number AR20110012540, dated 17 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)                                         AR20120010694



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ABCMR Record of Proceedings (cont)                                         AR20120010694



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