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ARMY | BCMR | CY2012 | 20120013993
Original file (20120013993.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120013993 


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, through a court remand, that his discharge of 
30 October 2002 be voided and that he instead be retired by reason of completion of 20 years of active service. 

2.  The court action, dated 25 May 2012, remanded the case to the Army Board for Correction of Military Records (ABCMR) to address the disability and improper discharge issues raised by the applicant.  The ABCMR was to address all issues within its authority, including but not limited to the issues below, and any other pertinent issues raised by the parties.  The ABCMR shall address, among other issues:

* Is a medical evaluation and referral to a Medical Evaluation Board (MEB) under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-9, separate and distinct from an evaluation and action taken by an MEB under Army Regulation 635-40, paragraph 4-10?
* Is it possible for a physician to “initiate an MEB” without necessarily “referring” a case to an MEB?  If so, what supports this conclusion?  To what extent do initiation and referral overlap with the concept of “physical disability processing?”
* Was the applicant’s case referred to an MEB, or did the applicant’s physician mean something else when he wrote “MEB initiated?”
* If the applicant’s case was not referred to an MEB, what in the record and regulations support this conclusion?  If the applicant’s case was not referred to an MEB, on what authority did his physician, in concert with a second physician, act when they “abruptly terminated” the MEB?
* If the applicant’s case was referred to an MEB, on what authority did his physician, in concert with a second physician, act when they “abruptly terminated” the MEB?  In other words, how could the applicant’s physician, in concert with a second physician, terminate the applicant’s MEB when they were not members of the MEB?   

3.  The applicant states, in effect, that he was unjustly discharged under the Qualitative Management Program (QMP) while he was undergoing  MEB processing for separation under the Physical Disability Evaluation System (PDES).  His physician unjustly terminated the MEB process without authority or any notice to him and he was discharged on the same date it was terminated.  He goes on to state that the physician had no authority to do so and in doing so violated his rights.   

4.  The applicant provides copies of his previous three applications and Record of Proceedings with enclosures denying his request to the Board and copies of his appeal to the Department of the Army Suitability and Evaluation Board (DASEB) with enclosures. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in a 15-page brief, that the Board correct the applicant’s records by voiding his 30 October 2002 discharge under the QMP and correcting his records to show that he continued to serve on active duty until he reached 
20 years of service.

2.  Counsel states, in effect, that the actions by the physician to terminate the MEB proceedings had no basis and in fact were unlawful.  He also states that the applicant was unlawfully discharged under the QMP based on misconduct – marijuana use; however, he was exonerated by an administrative separation board and it should not have been used as the basis for imposing a bar to reenlistment under the QMP.  He concludes by stating that the applicant suffered errors and injustices that prematurely ended his Army career and he should have been continued on active duty to 20 years. 

3.  Counsel provides copies of previous court actions filed; a copy of a notice of physical disability processing; a copy of a physical profile, dated 28 June 2002; a sick slip, dated 3 June 2002, indicating “MEB Initiated”; a response from a deputy adjutant general to a Member of Congress; an inspector general action request (IGAR); and a copy of the applicant’s last noncommissioned officer evaluation report (NCOER).
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 AR2003083381, dated 21 August 2003 and reconsidered in Docket Number AR20060014254, on 27 February 2007.  A third application, Docket Number AR20030001613, was an administrative close of a request for reconsideration of Docket Number AR2003083381.

2.  The applicant enlisted in the Regular Army on 6 November 1984 for a period of 4 years.  He completed his training as an indirect fire infantryman and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-7 on 1 March 1996.

3.  On 24 March 2000, nonjudicial punishment (NJP) was imposed against the applicant for the wrongful use of marijuana.  He did not demand trial by court-martial and he elected not to appeal the punishment.

4.  On 25 August 2000, the applicant received a change of rater NCOER that contained negative ratings and comments that were related to his use of marijuana and the NJP.

5.  The applicant appeared before an administrative separation board on 25 and 26 October 2000 to determine if he should be separated prior to his expiration of term of service (ETS) under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct – commission of a serious offence (use of marijuana).  The board found the allegation of wrongfully using marijuana was not supported by the preponderance of the evidence and recommended that he be retained in the service.

6.  On 20 April 2001, the applicant was notified that the Calendar Year 2001 Master Sergeant Promotion Board, after a comprehensive review of his official records, determined that he was to be selected for denial of continued service under the QMP based on the NJP and his NCOER.  He had 16 years, 5 months, and 15 days of active service. 

7.  The applicant submitted his appeal of the bar to reenlistment under the QMP through his chain of command on 11 May 2001; however, his chain of command did not support his request.  Commanders at all levels recommended disapproval.  His appeal was denied by a Department of the Army Standby Advisory Board at the U.S. Army Enlisted Records and Evaluation Center on    28 December 2001, and he was advised that he would be discharged 90 days after receiving pre-separation counseling or at his ETS date if he had 120 days or less to ETS.  He had an indefinite ETS; therefore his separation date should have been no later than 30 April 2002.

8.  On 3 June 2002, the brigade surgeon, Captain (CPT) “C,” later referred to as Doctor C), completed an individual sick slip indicating “MEB initiated” and on       3 July 2002, the Physical Evaluation Board Liaison Officer (PEBLO) at the Medical Department Activity at Fort Hood, Texas dispatched a memorandum to the applicant’s commander informing him that the applicant was undergoing physical disability processing.

9.  On 30 October 2002, Doctor C dispatched a memorandum to the PEBLO requesting that the MEB actions pertaining to the applicant be terminated because his medical issues were stable and could be followed by the Department of Veterans Affairs (VA) system once he left the military.  He indicated that he had discussed the case with the Deputy Commander for Clinical Services (DCCS), and the DCCS had approved his request.  The applicant’s commander was notified the same day and the applicant was honorably discharged on the same day (30 October 2002) under the provisions of Army Regulation 635-200, paragraph 19-12, due to non-retention on active duty.  He had served 17 years, 11 months, and 25 days of active service and was paid $31,982.92 of involuntary severance pay benefits. 

10.  On 12 March 2003, the VA notified the applicant that he had been awarded a 20% service-connected disability rating for his back condition, a 20% service-connected disability rating for his left shoulder condition, and a 10% service-connected disability rating for tinnitus for a combined disability rating of 40%.

11.  In the processing of this case, a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) legal advisor who provides the following opinions.

	a.  The initiation of a MEB is the responsibility of a Soldier’s commander or physician.

	b.  The referral of an MEB in accordance with either paragraph 4-9 or 4-10, Army Regulation 635-40 are the same; there is no difference except for who might have initiated the MEB.  It should be noted that those paragraphs are really not the controlling Army regulations regarding the initiation of an MEB.  The paragraphs noted in Army Regulation 635-40 are merely a re-issuing of the actual medical regulations that control the initiation of MEBs.  The controlling Army regulations on when an MEB is to be initiated are found at paragraph 7-1, Army Regulation 40-400 (Patient Administration) and paragraphs 3-3 and 3-4, Army Regulation 40-501 (Medical Retention Standards) (note that the citation of Army Regulation 40-3, chapters 7 and 8, found within paragraph 4-10 in the 1996 version of Army Regulation 635- 40 – the version in effect in 2002, is now Army Regulation 40-400.)

	c.  It is not possible for a physician to initiate an MEB without referring a case to an MEB.  If a physician initiates an MEB he should have made a determination that at least one condition does not meet medical retention standards in accordance with chapter 3, Army Regulation 40-501.  The initiation of an MEB merely means that the start date is established for record keeping purposes and that now the Medical Treatment Facility (MTF) gains control and the case is assigned to have a physician complete a medical examination and narrative summary for inclusion in the MEB.  The physician who initiates the MEB is often not the physician at the MTF who is responsible for completing the MEB.

	d.  In the applicant’s case, an MEB was initiated by Doctor C and was referred to an MEB.

	e.  Inasmuch as Doctor C initiated the MEB, he had the authority to withdraw his referral.  The members of the MEB (physicians who review the completed physical exam and narrative summary (NARSSUM), which is the heart of the MEB and which are attached to the DA Form 3947 (MEB Proceedings)) are not normally selected until the exam and NARSUM is completed.  Based upon the case file records provided, it does not appear that any such NARSUM was ever completed.  An MEB is not an active board per se. but is only two physicians who are chosen after the exam and narrative summary are completed who individually review the written contents of the MEB and either concur or nonconcur with its contents (See chapter 7, Army Regulation 40-400, for MEB procedures and contents).  

	f.  Based upon the assumption that the process was administratively correct unless clear evidence to the contrary is found, it would appear that Doctor C’s use of the phrase “his medical issues are stable” in his 30 October 2002 termination of his previous referral was an indication that it was now his medical opinion that the applicant’s condition had stabilized, so that it now met medical retention standards in accordance with chapter 3, Army Regulation 40-501.  If so, then the applicant would no longer be eligible for an MEB and was required to be separated in accordance with his previous separation orders.  Physicians who initiate an MEB based upon their medical opinion have the same authority to withdraw that initiation when their medical opinions change. 

12.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the Board.


13.  The Board again requested a staff advisory opinion from the Department of the Army Office of the Surgeon General (OTSG) which provides the following responses to the questions raised in the court remand.

	a.  The medical evaluation and referral to an MEB under Army Regulation 635-40, paragraphs 4-9 and 4-10 are part of the same action.   Army Regulation 40-400, chapter 7, provides the rules for documentation, recommendations, and disposition of the evaluated Soldier.

	b.  A physician cannot initiate an MEB without referring a case to an MEB as they are synonymous actions.  The applicant was initiated into the MEB phase, the first step in the PDES.  The MEB is initiated when a Soldier is referred with two physician signatures on a Permanent Profile (P3 – P4).  The physicians issued the applicant a P3 Profile on 28 June 2002.

	c.  The medical note from 30 October 2002 is not available for review.  An MEB is not abruptly terminated.  The PDES under Army Regulation 635-40 requires due process for every condition that does not meet retention standards of Army Regulation 40-501.  In this case, the memorandum from the initiating physician and the DCCS states that the Soldier’s condition stabilized and an MEB was no longer indicated, meaning the Soldier’s condition was now meeting retention standards under Army Regulation 40-501.  The DCCS is the MEB Convening Authority and the referring physician was the physician for the MEB in the Legacy System; such is not the case under the Integrated Disability Evaluation System now in effect.  The referring physician and the MEB Convening Authority were the physicians who terminated the case.

	d.  The Secretary of the Army is charged with assuring the fitness of Soldiers and separating or retiring those who become unfit to continue military service because of physical disability.  The Army’s first priority for Soldiers suffering from an illness or injury is to ensure delivery of the highest quality and proper medical attention.  If the medical condition(s) improve to the point that the Soldier is able to return to full military duty, they are returned to their unit.  However, if the treating physician believes that a Soldier is unable to perform full military duty or is unlikely to be able to do so within a reasonable period of time (normally 
12 months), the Soldier is referred to an MEB at the MTF where treatment is being provided.  The MEB is an informal process comprised of at least two physicians who compile, assess, and evaluate the Soldier’s medical history and determine if the Soldier meets, or will meet retention standards as listed in Army Regulation 40-501, chapter 3.  If the Soldier meets retention standards, the Soldier is returned to duty in their respective or current military occupational specialty (MOS).  If the Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB) for further disposition and determination of fitness.

	e.  The MEB determines whether or not a Soldier meets retention standards; it does not determine fitness.  It is important to understand that the PDES is a performance-based system.  Simply because a Soldier has a medical condition does not mean that the Soldier cannot continue to serve on active duty or in the Reserve Components.  It is the impact of the medical condition(s) upon the Soldier’s ability to perform duties appropriate to their rank and job skill that is important.  The MTF initiates an MEB when it is determined that a Soldier’s treatment or hospitalization for a medical impairment has reached a point of stabilization and the course of recovery is relatively predictable, and further treatment will not cause a Soldier to meet medical retention standards.  The MEB validates whether the Soldier meets medical retention standards.  If the Soldier does not meet medical retention standards, the MTF refers the case to the PEB. 

14.  The advisory opinion was provided to the applicant for comment and the applicant’s counsel provided a 14-page response to the effect that:

* The applicant was unjustly discharged while undergoing MEB processing.
* The physician who referred the applicant to an MEB (Doctor C) and Colonel S, the DCCS, terminated the MEB proceedings without authority to do so
*  Doctor C improperly made a determination that the applicant was medically qualified for retention just 6 days before the applicant met the 18-year sanctuary for retention 
* The applicant was not properly counseled by medical personnel regarding his rights under the PDES
* The applicant was not medically qualified for separation and the Board should correct his records to show that he continued to serve on active duty until he was eligible for retirement due to completion of 20 years of service with entitlement to all back pay and allowances that flow from that change

15.  A review of the applicant’s NCOERs show that during the period August 2000 to July 2002 the applicant received four NCOERS for performing duties as an emergency operations NCO, mortar section leader, family readiness NCO-in-charge, and assistant operations sergeant.  He passed his Army physical fitness test in three of the four reports and had a profile in his last NCOER.  In all of the reports he received “Excellent” and “Success” and “Among the Best” and “Fully Capable” ratings.  

16.  The available records do not contain copies of delegation letters or the operating instructions applicable to the local installation.  The records contain a declaration by Dr. C, dated 3 September 2009, which was referred to by the Appellate Court Judge.

17.  Army Regulation 635-40, effective 1 September 1990, states that 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.  This regulation also provides that 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 the Soldier is fit.  If a question arises regarding a Soldier’s ability to perform his duties because of physical disability, the Soldier’s commander, Headquarters Department of the Army, or the physician can refer the Soldier for medical evaluation (paragraphs 4-6, 4-7 4-8).  The MTF Commander conducts a medical examination.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB in accordance with paragraph 4-9.  MEB’s are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status (paragraph 4-10).  The regulation states that the NARSUM is the heart of the disability evaluation system (paragraph 4-11).  

18.  Title 38, U.S. Code, chapter 11, 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.

19.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Department of Defense Disability Evaluation system only rates those maladies that caused a premature conclusion to the Service Member’s military career.  The VA may provide a rating on all service-connected disabilities.  The VA may even initially assign a higher rating based on all VA rated conditions.  The VA’s ratings fluctuate within a period of time depending on the changes in the disability.

20.  Army Regulation 40-501, effective 28 March 2002, chapter 7, provides a system for classifying individuals according to functional abilities.  Paragraph 7-3 (Physical Profile Serial System), subparagraph d states “Four numerical designations are assigned for evaluating the individual’s functional capacity in each of the six factors,” and “The numerical designator is not an automatic indicator of deployability, or assignment restrictions, or referral to an MEB/PEB.  Likewise, the conditions listed in chapter 3, rather than the numerical designator of the profile, will be the determinant for MEB processing.”  Permanent profiles may be amended at any time if clinically indicated (paragraph 17-4a(3)).  The physical profile in controversial or equivocal cases may be verified or revised by the hospital commander or command surgeon (paragraph 17-8e).  If the Soldier does not meet retention standards, the Soldier should be referred to an MEB (paragraph 7-8a).

21.  Army Regulation 40-400, effective 12 March 2001, chapter 7 (Military Personnel Physical Disability Processing) states at paragraph 7-1 that MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the member’s medical status.  MTF commanders, Commanders, TSG/Commander, Medical Command (MEDCOM); and Commander, 18th MEDCOM are authorized to appoint MEBs (paragraph 7-2).  It is essential that the MEB evaluate thoroughly and report all abnormalities and their impact on fitness for duty (paragraph 705 b (1)).  Paragraph 7-7 (MEB Proceedings) states “MEBs operate informally and may assemble to discuss and evaluate the patient’s case.”  Clinical, heath, and other records, as appropriate, are reviewed.  MEB proceedings will be recorded on DA Form 3947 (paragraph 7-8a).  A complete, current report of medical examination will be included in the NARSUM completed by the physician and recorded on Standard Form 502 (paragraph 7-8 a (4).  Paragraph 7-9 provides detailed instructions on completion of the DA Form 3947.  Paragraph 7-12 provides that the appointing authority is also the approving authority for MEB proceedings.  He or she will not participate in the proceedings, either as a member, witness, consultant, or in any capacity. 

22.  Army Regulation 635-200, section VI, paragraph 1-33 (Disposition through medical channels) states in paragraph 1-33a that except for separation under chapter 10, and as provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing.  

23.  Army Regulation 635-200, chapter 19 (QMP) provides the policies and procedures for the separation of enlisted personnel under the QMP.  It provides, in pertinent part, that NCOs who performance, conduct, and/or potential for advancement do not meet Army standards, as determined by the approved recommendations of Headquarters, Department of the Army centralized selection boards responsible for QMP screening will be denied continued service.  Soldiers with a minimum of 17 years and 9 months of active Federal service at the time of notification of the QMP selection, who choose not to appeal, will be retained to 20-year retirement eligibility upon request.  Regular Army Soldiers whose appeals are denied and who have 18 years of active Federal service on the designated date of separation will be retained to attain a 20-year retirement upon request.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been retained on active duty under the MEB process until a decision was reached by the MEB has been considered along with his counsel’s arguments and supporting documents and found to lack merit.

2.  Counsel contends that the applicant should have been continued on active duty under the MEB process and subsequently retained until he reached 
20 years of active service to qualify for retirement.

3.  While there is evidence to show that the applicant was referred to an MEB due to an unfitting condition while he was undergoing separation under the QMP, there is also evidence to show that the same physician who referred him to the MEB determined that his condition was stable and withdrew his recommendation for referral to an MEB.  The record indicates that the applicant underwent numerous medical examinations after June 2002.  Some of these evaluations appeared to be in furtherance of the disability evaluation process, while others appear to be in furtherance of medical treatment.  In October 2002, Doctor S agreed with Doctor C that the MEB should be terminated, and subsequently the “MEB” was terminated. 

4.  It should also be noted that the MEB process is an informal process comprised of at least two physicians who compile, assess, and evaluate the Soldier’s medical history and determine if the Soldier meets or will meet retention standards.  The NARSUM is the heart of the MEB process.  In this case the DA Form 3947 was not completed.  The evidence shows that after completion of appropriate medical examinations, a determination was made that further PDES processing was not required.  Once the brigade surgeon, in consultation with the Deputy Commander for Clinical Service, determined the applicant’s condition was stable and met medical retention standards, the applicant was no longer eligible for consideration by an MEB and as such, PDES processing proceedings were terminated by appropriate authority prior to convening the MEB.  Accordingly, he was properly discharged under the provisions of Army Regulation 635-200, chapter 19, due to non-retention on active duty, with no violations of his rights. 

5.  The regulations do not prohibit termination of PDES (MEB) processing prior to convening the MEB and recording proceedings on the DA Form 3947.  Termination prior to actually convening the MEB is consistent with conservation of medical resources.  An example is found in paragraph 4-8 of Army Regulation 635-40.  When a commander “believes” that a Soldier of his or her command is unable to perform the duties, that commander will refer the Soldier to the appropriate MTF for evaluation.  If the PDES (MEB) process could not be terminated after examination, but prior to completion of the MEB, medical resources could be wasted based on the “belief” of the commander.  While the regulations prohibit the approving authority’s participation in MEB “proceedings,” the record does not contain evidence that MEB “proceedings” took place.  The preparatory step of completing the NARSUM was not completed.  The record does not contain a completed DA Form 3947, which indicates no MEB proceedings took place.
 
6.  Counsel argues that the applicant was unjustly terminated from MEB processing and should have been allowed to continue processing under the MEB essentially for the purpose of reaching the 18-year sanctuary point where he would have been retained on active duty until he reached 20 years of service and became eligible for retirement.  However, there is insufficient evidence to show that the applicant’s condition warranted further processing under the Army PDES given that his condition, after completion of numerous medical examinations, had been determined to be stable by two physicians and not requiring an MEB.

7.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army. 

8.  Although the available records do not indicate why the brigade surgeon determined that his condition was stable and elected to withdraw him from the MEB process, there are no provisions in the applicable regulations that prohibit a physician from reevaluating and changing his or her medical opinion or diagnosis after PDES processing has been initiated.  Additionally, it is not reasonable for the Board to second guess a medical diagnosis made 10 years earlier without sufficient evidence to show otherwise.

9.  This is especially true since there is no evidence to show that the physician had any ulterior motive or reason not to continue to process the applicant under the PDES if he had a condition that did not meet medical retention standards, especially since he had already been held 6 months past his scheduled separation under the QMP.  There simply is insufficient evidence to suggest that the physician’s opinion/diagnosis was incorrect or that he wrongfully terminated PDES processing. 

10.  The OTSG advisory opinion addresses the issues raised in the court remand in what appears to be a valid explanation of the MEB process and how it applies to the case in hand.  It explains that the MEB is an informal process, that the evaluation and referral are part of the same process and that the MEB, once convened, consists of at least two physicians to evaluate an individual over a period of time to determine if the Soldier meets, or will meet medical retention standards.  If during the PDES process, prior to convening the MEB, the physicians determine that a Soldier’s condition has stabilized and that he or she met retention standards, they could terminate PDES processing. 

11.  The bottom line of this case is that there was insufficient justification to warrant retaining the applicant on active duty for further medical evaluation and certainly not simply for the purpose of reaching the 18-year statutory retention point.  He had less than 17 years of service when he was notified of the QMP decision.  Accordingly, he was properly discharged and there is no basis to grant him credit for service that he did not perform. 

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 AR2003083381, dated 21 August 2003 or Docket Number AR20060014254, dated 27 February 2007.




      _______ _   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)                                         AR20120013993





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ABCMR Record of Proceedings (cont)                                         AR20120013993



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    Original file (20100011789.txt) Auto-classification: Denied

    The applicant's counsel indicated: a. the decision was contrary to the medical evidence, several errors occurred in the processing of the applicant's case, and the board denied the applicant due process; b. the formal PEB relied upon a faulty commander’s statement and an Officer Evaluation Report (OER) that primarily rated the applicant during the period prior to the pacemaker implantation and while he was on convalescent leave; c. although the applicant’s commander recommended that he be...