BOARD DATE:	  7 May 2013

		DOCKET NUMBER:  AR20120016952 


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 records to show he was medically retired based on a permanent disability.

2.  The applicant states a Physical Evaluation Board (PEB) conducted in 2008 found him medically unfit to perform the duties of a Soldier of his office, rank, and military occupational specialty (MOS).  However, his request for continuation on active duty (COAD) was approved and he was retained on active duty.

   a.  A PEB conducted in 2012 found him physically fit to perform the duties of his office, rank, and MOS.

   b.  As a result, he was administratively cleared to retire from active duty based on a "presumption of fitness."

   c.  He asserts that he did not meet Army standards of fitness.

3.  The applicant provides a copy of his Medical Evaluation Board (MEB) and PEB proceedings, and a letter from the U.S. Army Physical Disability Agency (USAPDA).

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the U.S. Army Reserve (USAR), Regular Army (RA), and Army National Guard from 26 February 1982 through 14 August 2002.
2.  He enlisted in the RA on 15 August 2002 for a period of 4 years in pay grade E-7.  He was awarded MOS 14S (Avenger Crewmember).  He served in Iraq from 22 April 2003 to 15 July 2004.

3.  He reenlisted in the RA on 21 December 2005 for an indefinite period.

4.  A copy of the applicant's initial MEB is not available.

5.  A PEB was convened on 14 February 2008.

   a.  The disability description shows "spinal fusion L5-S1 in January 2007" and "health record reveals atraumatic onset of low back pain while serving in Iraq" with a rating of 0%.  It was determined that the applicant's functional limitations in maintaining the appropriate level of stamina, caused by the physical impairments, made him medically unfit to perform the duties required of his rank and primary MOS.

   b.  The remaining MEB diagnoses (not specified in the PEB) were determined to meet retention standards.

   c.  The PEB found the applicant physically unfit, recommended a combined rating of 0%, and separation with severance pay if otherwise qualified.

   d.  The president of the PEB noted that the applicant had applied for COAD and that the recommendations regarding his separation and compensation would apply if his application for COAD were denied.

6.  On 1 April 2008, the Chief, Retention Eligibility and Reclassification Branch, U.S. Army Human Resources Command, Alexandria, VA, notified the applicant that his request for COAD was approved.  He was authorized retention on active duty until he reached his retention control point, mandatory retirement date or age 62, whichever occurs first.  He was also informed that if he was serving on an indefinite reenlistment commitment no additional action was required.

7.  On 10 April 2008, the PEB was approved for the Secretary of the Army.

8.  An MEB was convened on 16 February 2012.

   a.  The MEB found the following conditions did not meet retention standards:

* Post-Traumatic Stress Disorder (PTSD)
* Cognitive Impairment, Residuals of Mild Traumatic Brain Injury (TBI)
* Degenerative Disc Disease, Lumbosacral Spine 
   b.  The MEB found the following conditions did meet retention standards:

* Hearing Impairment
* Headache
* Shortness of Breath
* Joint Stiffness of Thumbs
* Obstructive Sleep Apnea
* Dizziness

   c.  The applicant was referred to a PEB.

9.  A PEB was convened on 19 April 2012.

   a.  The president of the PEB noted the records that were made available to the Board indicated the applicant's request for non-disability retirement was approved on or about 22 December 2010 (for release from active duty on
30 November 2011 with a retirement date of 1 December 2011).

    	(1)  His MEB was dictated on or about 6 April 2011.

    	(2)  His retirement orders were revoked on 18 November 2011.

   b.  He added, "when a member's request for voluntary retirement has been approved, revocation of voluntary retirement orders for purpose of referral into the disability evaluation system does not negate application of presumption."

   c.  The PEB found the applicant physically fit and returned him to duty for purposes of non-disability retirement.

   d.  On 4 May 2012, the applicant concurred with the informal PEB proceedings and waived a formal hearing of his case.

   e.  On 9 May 2012, the PEB was approved for the Secretary of the Army.

10.  Headquarters, 1st Armored Division, Fort Bliss, TX, Orders 123-0146, dated 2 May 2012, released the applicant from active duty on 30 June 2012 and placed him on the Retired List effective 1 July 2012, per Title 10, U.S. Code, section 3914.  He was credited with 21 years, 8 months, and 5 days of total active service; 22 years, 9 months, and 13 days of service for voluntary retirement; and 30 years, 4 months, and 5 days of service for basic pay.

11.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 15 August 2002; he was retired from active duty on 30 June 2012 and transferred to the USAR Control Group (Retired).  It also shows in:  

* item 25 (Separation Authority):  Army Regulation 635-200, Chapter 12
* item 26 (Separation Code):  "RBD"
* item 27 (Reentry Code):  "4R"
* item 28 (Narrative Reason for Separation):  Sufficient Service for Retirement

12.  In support of his application the applicant submits a memorandum from the Chief, Operations Division, USAPDA, Arlington, VA, dated 7 August 2012, which was provided to him to use in support of his application to the Army Board for Correction of Military Records.

   a.  It shows the USAPDA erroneously applied the presumption of fitness rule to the applicant's case and, therefore, found him fit in May 2012.  The PEB was apparently unaware that the applicant was serving on a COAD and that the conditions he was found unfit for in 2008 should not have had the presumption of fitness rule applied to them.

   b.  The applicant's case file was reviewed and the USAPDA determined that, had the presumption of fitness rule not been applied, the applicant would have been rated 40% for his back condition for reduced flexion range of motion of
17 degrees and that the condition was not determined to be combat-related.  It was also determined his other conditions, including TBI and PTSD, were not determined unfitting at the time his COAD was approved; therefore, the presumption of fitness rule was properly applied to those conditions.

   c.  The USAPDA concluded that had the applicant's case been properly adjudicated, he would have received a 40% rating and been given a permanent disability retirement.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) set 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.

   a.  Chapter 3 (Policies) provides in:

    	(1)  paragraph 3-1 (Standards of unfitness because of physical disability), in pertinent part, that 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 their office, grade, rank, or rating; and

    	(2)  paragraph 3-2 (Presumptions), in pertinent part, 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.

   b.  Chapter 4 (Procedures), paragraph 4-24, provides that the USAPDA will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to PEB for clarification or reconsideration when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  It shows, in pertinent part, that based upon the final decision of the USAPDA, retirement orders or other disposition instructions will be issued for permanent retirement for physical disability (Title 10, United States Code, section 1201 or 1204).

   c.  Chapter 6 (COAD and Continuation on Active Reserve (COAR) Status of Unfit Soldiers), paragraph 6-4 (The period for which continuation on active duty and continuation active Reserve status may be approved), provides that, normally:

    	(1)  a COAD will be for any period of time up to the last day of the month in which the Soldier attains 20 years of active Federal service for the purposes of qualifying for length of service retirement under Title 10, U.S. Code, section 3911 or 3914; and

    	(2)  a COAR will be for any length of time up to the minimum time required for the Soldier to be issued and receive the 20-year letter of qualifying service for purposes of qualifying for non-regular retirement under Title 10, U.S. Code, section 12731.

14.  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 rated at least 30%.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "SFJ" as the appropriate code to assign enlisted Soldiers retired under the provisions of Army Regulation 635-40, paragraph 
4-24b(7), based upon permanent disability.
16.  The SPD/Reentry (RE) Codes Cross Reference Table shows that an RE code of "4" will be assigned to members separated with an SPD code of "SFJ."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically retired based on permanent disability because he was found medically unfit to perform the duties required of his rank and primary MOS.

2.  On 14 February 2008, a PEB found the applicant medically unfit to perform the duties required of his rank and primary MOS and recommended separation with severance pay if otherwise qualified.  His request for COAD was approved on 1 April 2008 and the PEB was approved on 10 April 2008.  Accordingly, the applicant was retained on active duty.

3.  On 19 April 2012, a PEB found the applicant physically fit and returned him to duty for the purposes of non-disability retirement.  

4.  However, the evidence of record shows the 2012 PEB erred because the presumption of fitness rule was erroneously applied to the applicant's case.

5.  The USAPDA has determined that had the presumption of fitness rule not been applied, the applicant would have been rated 40% for his back condition for reduced flexion range of motion of 17 degrees.  (The condition was not determined to be combat-related.)  It was also determined that his other conditions, including TBI and PTSD, were not unfitting at the time his COAD was approved; therefore, the presumption of fitness rule was properly applied to those conditions.

6.  Therefore, it would be appropriate to correct the applicant's records to show he was retired from active duty on 30 June 2012 based on permanent physical disability and placed on the Retired List effective 1 July 2012.

BOARD VOTE:

___x_____  ___x_____  __x______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  correcting Headquarters, 1st Armored Division, Fort Bliss, TX,
Orders 123-0146, dated 2 May 2012, to show he was permanently retired for physical disability under the provisions of Army Regulation 635-40, paragraph 
4-24b(7); and

   b.  correcting his 30 June 2012 DD Form 214, as follows:

* item 25 - delete:  "Army Regulation 635-200, Chapter 12"
       add:  "Army Regulation 635-40, paragraph 4-24b(7)"
* item 26 - delete:  "RBD"
       add:  "SFJ"
* item 27 - delete:  "4R"
       add:  "4"
* item 28 - delete:  "Sufficient Service for Retirement"
       add:  "Disability, Permanent"

2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination to remit all back pay
(i.e., retired pay (with any non-taxable offset), less any withholdings and/or deductions) that may be due as a result of the correction.




      _______ _  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)                                         AR20120016952



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ABCMR Record of Proceedings (cont)                                         AR20120016952



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