BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20120021167 


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, his transfer to the Retired Reserve be voided and that he be referred to a medical evaluation board (MEB) and physical evaluation (PEB) and processed through the Physical Disability Evaluation System (PDES).

2.  The applicant states his medical records should be reviewed and corrected on his retirement physical examination and any additional records to determine the percentage of disability that he suffered prior to the time of his retirement physical exam on 27 February 2009.  He states his back injuries should be corrected to reflect "intervertebral disc syndrome."  He was still recovering from a double (anterior and posterior) back surgery (October 2008) at the time of his retirement physical and should have been retained pending a PEB.  

	a.  He had been determined to be unfit for continued service in June 2006, but appealed due to his being selected for chief warrant officer five (CW5) and being able to perform the duties of Command Chief Warrant Officer instead of CID (Criminal Investigation Command) agent.  Due to the imminent change of duty he was found fit for duty and his P3 profile was expanded.

	b.  When his assignment as a Chief Warrant Officer was completed he would have been medically boarded again and medically retired because he would have not been able to return to the duties as a CID agent.

	c.  Since his retirement he has been unable to obtain gainful employment in his field of criminal investigation.
3.  The applicant provides a:

* consult report, dated 25 April 2006, from Dwight David Eisenhower Army Medical Center (DDEAMC), Fort Gordon, GA
* memorandum, dated 15 May 2006, from DDEAMC
* DA Form 3349 (Physical Profile), dated 1 June 2006
* a memorandum, dated 2 October 2006, from DDEAMC
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
29 September 2006
* DA Form 5893-R (PEBLO Counseling Checklist/Statement), dated 
27 September 2006
* Patient Lab Inquiry, for 28 October 2008 - 25 February 2009, from Munson Army Health Center, Fort Leavenworth, KS
* Radiologic Examination Report, dated 20 February 2009
* electrocardiogram report, dated 20 February 2009
* DD Form 2807-1 (Report of Medical History), dated 27 February 2009
* DD Form 2808 (Report of Medical Examination), dated 27 February 2009
* list of medications prescribed by Dr. Peter T from 7 March 2008 to 
12 January 2009

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.  He previously served 3 years, 8 months, and 10 days of active service and 
2 years, 3 months, and 20 days of inactive service in the Regular Army and the U.S. Army Reserve (USAR).

3.  On 26 March 1979, he enlisted in the USAR.  He was appointed a warrant officer one in the USAR on 29 June 1982.  He was ordered to active duty in an Active Guard Reserve (AGR) status in the grade of CW4 effective 24 May 1999.

4.  A DA Form 3349, dated 16 November 2005, assigned him a permanent profile for:

* neck pain - status post cervical neck surgery
* sleep apnea - on CPAP (continuous positive airway pressure)
* hearing loss
* lower back pain

He was assigned a 3 under P (physical capacity or stamina) and U (upper extremities) and a  2 under L (lower extremities) and H (hearing and eyes).  The profile stated no unlimited running, walking, biking, or swimming.  In addition, no 2-mile run, sit-ups, or push-ups.

5.  On 5 September 2006, an MEB found his conditions medically unacceptable and referred him to a PEB for the following conditions:

* chronic neck pain status-post cervical spine fusion
* chronic low back pain due to degenerative disc disease
* obstructive sleep apnea, mild industrial impairment

His military occupational specialty (MOS) at the time was 311A (CID Special Agent).

6.  On 29 September 2006, an informal PEB found him physically fit for duty.  The PEB stated that although his most recent cervical surgery (February 2006) left him with some neck pain he had both neck pain and low back pain for several years, during which time his Officer Evaluation Reports (OERs) had been outstanding.  He was just selected for promotion to CW5.  As a senior field grade equivalent, his responsibilities would primarily be administrative and supervisory. His sleep apnea had been present for several years and was controlled with CPAP.  His profile was overly restrictive.

7.  On 1 October 2007, he was promoted to CW5.

8.  He received an OER as a CW5 for the period from 25 September 2007 to 
20 July 2008.

	a.  In Part IVa (Army Values) the rater placed an "X" in "YES" blocks for all of the Army values.



	b.  In Part IVb (Leader Attributes/Skills/Actions) the rater placed an "X" in the "YES" blocks for all of the attributes, skills, and actions.

	c.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Outstanding Performance, Must Promote" block.

	d.  In Part VII (Senior Rater) the senior rater placed an "X" in the "Best Qualified" block.

9.  He received an OER as a CW5 for the period from 20 July 2008 to 7 February 2009.

	a.  In Part IVa the rater placed an "X" in "YES" blocks for all of the Army values.

	b.  In Part IVb the rater placed an "X" in the "YES" blocks for all of the attributes, skills, and actions.

	c.  In Parts V and VII the rater and the senior rater placed an "X" in the "Other" block because this was the applicant's retirement OER.

10.  Both of the above OERs show his position MOS as 011A (Branch/MOS Immaterial).

11.  On 30 March 2009, he was released from active duty and transferred to the Retired Reserve.  The reason shown on his orders for transfer is completion of maximum authorized years of service.  His date of birth is shown as 15 March 1947.

12.  His service medical records were not available for review.

13.  He provided his DD Form 2808, dated 27 February 2009.  

	a.  Item 74a shows the applicant was qualified for USAR AGR service.

	b.  Item 74b (Physical Profile) shows he was assigned a 3 under P and U  and a  2 under L and H.  

14.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  

	a.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

	b.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

	c.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

15.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation 
40-501 (Standards of Medical Fitness), as amended, provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.  

16.  Army Regulation 635-40 states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments.  All relevant evidence must be considered in evaluating the fitness of a member.  When a member is referred for physical evaluation, evaluations of the performance of duty by supervisors may provide better evidence than a clinical estimate by the Soldier's physician describing the physical ability to perform the duties of the office, grade, rank, or rating.  Thus, if evidence establishes that the Soldier adequately performed the normal duties of his or her office, grade, rank or rating until the time of referral for physical evaluation, the Soldier might be considered fit for duty, even though medical evidence indicates the Soldier's physical ability to perform such duties may be questionable. 

17.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  His retirement physical examination, dated 27 February 2009, found him fit for service in the USAR AGR.  The numerical designators assigned under PULHES on the examination are the same as those assigned on his DA Form 3349, dated 1 June 2006, and he was found fit for duty by a PEB on 29 September 2006.  Therefore, the evidence shows his condition was no worse or no better than it was in 2006.

2.  There is no evidence of record and the applicant has not submitted any evidence to show he was unable to perform his normal duties due to his medical condition.  The applicant’s last two OER’s clearly showed he was able to perform his prescribed duties in his duty MOS at the time.  

3.  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.  He was not found to be physically unfit and his disabilities did not interrupt his career because he was transferred to the Retired Reserve after completing his maximum authorized years of service.

4.  The VA evaluates veterans after they have left military service, including retirement.  That agency can adjust the percentage of disability based on their examinations and findings, including employability based on those disabilities.

5.  In view of the above, there is an insufficient basis to provide relief in this case.

  
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)                                         AR20120021167



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ABCMR Record of Proceedings (cont)                                         AR20120021167



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