IN THE CASE OF:	  

		BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130013310 


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 medical retirement in lieu of being transferred to the Retired Reserve by reason of being medically disqualified.

2.  The applicant states:

* she was given false information and rushed into retirement (transfer to the Retired Reserve)
* her command started a medical board process and then without notice, they decided to retire her
* she feels this action was misleading and denied her and her children valuable benefits that are needed

3.  The applicant provides:

* Orders 11-343-00044 (transferring her to the Retired Reserve)
* Medical Record Review memorandum, dated 14 June 2011
* Notification of Medical Retention Board Referral, dated 20 July 2010
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 11 November 2011, 15 July 2005, 4 August 2006 
* Department of Veterans Affairs (VA) medical records, notes, and related documents


CONSIDERATION OF EVIDENCE:

1.  The applicant was born in February 1971. 

2.  She enlisted in the U.S. Army Reserve (USAR) on 20 May 1989.  She was trained in and held military occupational specialty (MOS) 76Y (Unit Supply Specialist).  She reenlisted on 5 March 1995.

3.  On 3 December 2003, her medical records were considered by physical evaluation board (PEB).  Based on the review of the objective medical and personnel evidence of record and after considering the physical requirements for reasonable performance of duty she was found fit for duty.  This PEB was adjudicated as a non-duty PEB under the provisions of Department of Defense (DOD) Directive 1332.18, paragraph 3.5 and DOD Instruction 1332.38, paragraphs E3.P2.3.  She concurred.

4.  On 8 December 2003, she was issued a DA Form 3349 (Physical Profile) for low back pain.  The profile listed a history of back surgery dating back to 1995 and an L-3 profile, dated 8 September 1997.  Her condition had improved and she was able to walk, do push-ups, sit-ups, and increased weight lifting and function. 

5.  On 6 January 2005, she was honorably discharged from her enlisted status for the purpose of accepting an appointment as a Reserve commissioned officer. 

6.  She was appointed as a Reserve commissioned officer of the Army and she executed an oath of office on 7 January 2005.  However, she appears to have been discharged from her commissioned status on or about 10 July 2008 after having been non-selected twice for promotion to first lieutenant. 

7.  She enlisted in the USAR on 11 July 2008.  She was assigned in MOS 79V (Army Reserve Career Counselor) to a Troop Program Unit (TPU), Support Element, Army Reserve Command, Office of the Chief of Army Reserve, Region 6, Birmingham, AL. 

8.  Her records contain multiple Noncommissioned Officer Evaluation Reports as follows:

	a.  Annual, 29 October 2008 through 28 October 2009; her rater rated her performance as "Success" or "Excellence" and "Among the Best" and her Senior Rater rated her overall performance and potential as "Fully Capable" and "Successful/Superior."  She passed the Army Physical Fitness Test and met the height and weight standards. 
	b.  Change of Rater, 29 October 2009 through 27 September 2010; her rater rated her performance as "Success" or "Excellence" and "Among the Best" and her Senior Rater rated her overall performance and potential as "Fully Capable" and "Successful/Superior."  She passed the Army Physical Fitness Test and met the height and weight standards.

c.  Annual, 28 September 2010 through 27 September 2011; her rater rated her performance as "Success" and "Fully Capable" and her Senior Rater rated her overall performance and potential as "Fully Capable" and "Successful/Superior."  She passed the Army Physical Fitness Test and met the height and weight standards. 

9.  On 2 June 2011, the U.S. Army Human Resources Command issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

10.  On 9 December 2011, Headquarters, 81st Regional Support Command, Fort Jackson, SC, published Orders 11-343-00044 releasing her from the USAR and transferring her to the Retired Reserve effective 8 January 2012 by reason of being medically disqualified.  Her ARPC Form 249-E shows she completed 20 years, 7 months, and 25 days of qualifying service toward non-regular retirement. 

11.  Her medical records are not available for review with this case.  Additionally, nothing in her service records explain what medical condition rendered her medically unqualified.  However, she provides: 

	a.  DA Form 2173, dated 15 July 2005, which shows she injured her left wrist while weight lifting during regular physical training at Maxwell/Gunter Annex Gymnasium on 13 July 2005. 

	b.  DA Form 2173, dated 4 August 2006, which shows she was seen on that date for low back pain and an ovarian cyst.  Both conditions occurred while she was on active duty for training from 29 July through 11 August 2006. 

	c.  DA Form 2173, dated 11 November 2011, which shows she sustained severe upper abdominal pain, jaundice to the eyes, and vomiting on 14 July 2009. 

	d.  A memorandum, dated 14 June 2010, titled Medical Record Review [Applicant], wherein the Command Surgeon notified her that a review of the medical records she submitted indicated she did not meet the medical retention standards of chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) due to low back pain.  She was asked to review her profile for the disqualifying condition.
	e.  DA Form 3349 (Physical Profile), dated 5 April 2006, for lumbago.  The functional limitations section states "She was found fit for duty with an L-3 ……..(illegible entry).  Service member is able to perform the duties of MOS 42A (Human Resources Specialist) in the Adjutant General Branch.  Physical Training at own pace and distance, may only do the pushup event of the Army Physical Fitness Test.”  

	f.  Memorandum, dated 20 July 2010, Subject: Notification of Medical Retention Board, informing her that:

		(1)  As a result of her medical evaluation, she was found medically disqualified for continued service in the USAR under the provisions of chapter 3 of Army Regulation 40-501.  The reasons for the disqualification are provided by the 81st Regional Support Command, Surgeon's Office, and DA Form 3349.

		(2)  She is required to complete the Acknowledgement of Notification of Medical Unfitness for Retention and Elections Option indicating her option with respect to her medical disqualification.  Failure to respond within 30 days constitutes a waiver of all right and possible honorable discharge.  

12.  She provides her VA medical records, charts, progress notes, consult sheets, and other medically-related documents. 

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits:

* the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training
* the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence

14.  This regulation further states in:

	a.  Chapter 3 the mere presence of 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 his or her office, grade, rank, or rating.

	b.  Paragraph 3-1(d) that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (worldwide deployability) will not serve as the sole basis for a finding of unfitness.

	c.  Paragraph 3-2b 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.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of a disability.

	d.  Paragraph 3-3b(1) that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, a physical evaluation board (PEB) rates all disabilities using the VA Schedule of Rating Disabilities (VASRD).  Chapter 3 lists various conditions that warrant referral to a medical evaluation board (MEB).

	a.  MEBs are convened to document a service member's medical status and duty limitations insofar as duty is affected by the member's medical status.  Situations that require consideration by an MEB include those involving Reserve component personnel on active duty for training or inactive duty for training, whose fitness for further military service upon completion of hospitalization is questionable, and those who require hospitalization beyond the termination of their tour of duty.  Consideration by an MEB also includes those involving a Reserve component member who requires evaluation because of a condition that may render him unfit for further duty.

	b.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  None of the applicant's service medical records are available for review with this case.  However, she provides selected documents that show the 81st Regional Support Command Surgeon reviewed the medical records she provided and determined she did not meet retention standards for continued service in the USAR.  She was counseled regarding her options and she appears to have elected a transfer to the Retired Reserve.

2.  It is unclear what condition or conditions the applicant believes rendered her unfit.  She erroneously assumes since she has several DA Forms 2173 that show she sustained certain conditions she must be disabled.  However, referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  

3.  The Regional Support Command makes retention decisions based on the information provided by the Reserve Component Soldier's annual medical screening.  If the Soldier reports he or she cannot do certain things (such as running, wearing armor, lifting, etc.) the Soldier forwards the medical records to support their limitations.  

4.  The Reserve Command Surgeon issues an appropriate physical profile listing the Soldier's functional limitations.  The Command Surgeon also makes retention determination which is often interpreted by Soldiers to mean medical board.  The Soldier is then provided with an option statement with four options:  (1) honorable discharge, (2) transfer to the Retired Reserve (15 or 20 years), (3) submitting documentation showing the medically disqualifying condition was incurred in line of duty (for referral to a MEB), or (4) request a non-duty related PEB (for the purpose of fitness).  

5.  The applicant did not provide her option statement.  However, two things are clear.  One, the medical board she refers to is the Regional Support Command medical board that was based on the documents she provided that board.  Second, the fact that she was transferred to the Retired Reserve suggests she elected that option.  

6.  Referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  There is no evidence to show she had:

* a permanent physical profile that shows an unfitting condition
* a diagnosis of a disabling condition that rendered her unable to perform the duties required of her MOS or grade
* a medical examination that warranted her entry in the PDES

7.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  Her evaluation reports show she was fully capable of performing her duties.

8.  Whenever there is a disability, 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.  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.

9.  There does not appear to be an error or an injustice in her case.  In view of the circumstances in this case, there is insufficient evidence to grant the 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)                                         AR20130013310



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ABCMR Record of Proceedings (cont)                                         AR20130013310



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