IN THE CASE OF:	  

		BOARD DATE:  8 April 2014

		DOCKET NUMBER:  AR20130014418 


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:

The applicant defers his request and argument to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show he was separated for physical disability instead of transferred to the Retired Reserve. 

2.  Counsel states the applicant incurred in line of duty medical disabilities.  His request for a medical discharge is made for reasons of equity.  Specifically: 

* the applicant was eligible to receive a physical disability separation and he was unfit to perform his duties
* the applicant's disability is permanent and was not caused by his misconduct or negligence
* the applicant had over 20 years of service and he has a disability rating over 30 percent
* the Army failed to follow the DOD Directive when the applicant was discharged without being afforded the chance to choose a physical disability separation
* the applicant's disabilities have resulted in him not being able to perform well at his job and he is without financial support of the Army




3.  Counsel provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 30 September 1992
* VA Form 21-4138 (Statement in Support of Claim), dated 23 July 2010
* MRI/Brain Screening sheet, dated 15 October 2007
* AF IMT 3899 (Patient Movement Record), dated 14 November 2007 
* Womack Army Medical Center, Department of Emergency Medicine, Air Evacuation Patient Screening and Disposition Form, dated 18 November 2007
* Emergency Department Record, dated 19 November 2007
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 December 2007
* DD Form 214, dated 10 May 2009 and 27 August 2006
* Email, dated 24 January 2011, Subject: Additional Medical Documentation Right Foot
* Comprehensive Neuropsychological Evaluation, 14 and 15 October 2009
* Notification of Medical Retention Board Referral, dated 30 November 2010
* Commander's evaluation letter, dated 21 January 2011
* Orders 11-039-00027 (Retired Reserve), dated 
* VA rating decision, dated 29 March 2012
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)

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.  The applicant's records show he was born in April 1960.  He was appointed as a Reserve commissioned officer of the Army on 15 May 1982 and he entered active duty on 13 June 1982.  

3.  He was honorably release from active duty on 30 September 1992 under the Voluntary Incentive Program and he was transferred to a troop program unit (TPU) of the U.S. Army Reserve (USAR).  

4.  On 1 August 2001, he was promoted to lieutenant colonel and on 19 June 2002, ARPC issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

5.  He entered active duty on 30 September 2006 in support of Operation Enduring Freedom.  He was honorably released from active duty on 20 March 2007. 

6.  He was ordered to active duty on 2 June 2007 in support of Operation Enduring Freedom.  He subsequently served in Afghanistan from 26 June to 17 November 2007.  

7.  His service records contain multiple DA Forms 2173 and/or medical documents as follows: 

	a.  DA Form 2173, dated 14 October 2007, finalized on 11 December 2007, which shows he reported to the 455th Expeditionary Medical Group in Bagram, Afghanistan, on 14 October 2007 with overall generalized lack of energy.  He was seen 8 days earlier for dyspnea and wheezing.  Upon examination, a diagnosis of neuropathy was given.  

	b.  DA Form 2173, dated 14 October 2007, finalized on 11 December 2007, which shows he had reported on 14 October 2007 a 30-pound weight loss with abdominal pain since June 2007.  A CAT scan determined the need for follow up. A colonoscopy was completed at Womack Army Medical Center on 5 December 2007.  The diagnosis is listed as diverticulosis. 

	c.  DA Form 2173, dated 6 May 2008, finalized on 12 June 2008, which shows the applicant was seen at Womack Army Medical Center by internal medicine on 6 May 2007 and diagnosed with renal failure caused by a small kidney, elevated cretin level and numerous kidney stones.

	d.  DA Form 2173, dated 27 February 2009, finalized on 20 March 2009, which shows the applicant has a history of Basel Cell Carcinoma (BCC), last confirmed diagnosis on or about 11 February 2009.  The applicant had an excision of left dorsal upper arm region done on 27 February 2009.  Final result of specimen showed no residual BCC identified. 

	e.  DA Form 2173, dated 27 May 2009, finalized on 27 May 2009, which shows the entry acute renal failure/insufficiency which subsequently returned to baseline 13 June 2008 and within normal limits. 

	f.  An MRI/Brain Screening medical document, dated 15 October 2007, which shows he had a history of altered memory associated with facial and right lower extremity paresthesia.  

	g.  Comprehensive Neuropsychological Evaluation, conducted on 14 and 15 November 2009, with the following diagnosis: 

* Axis I: Cognitive Disorder, Not Otherwise Specified (NOS), and Depressive Disorder, NOS
* Axis II: Deferred
* Axis III: Possible History of Cerebral Vascular Accident (CVA) and Chronic Inflammatory Demyelinating Disease (CIDP)
* Axis IV: Career Concerns
* Axis V: Global Assessment of Functioning score of 62

   h.  Commander's evaluation letter, dated 21 January 2011, indicating the applicant's medical condition and/or physical profile affect his eligibility for a security clearance due to his mental condition and his ability to carry a weapon and deploy worldwide as a civil affairs officer. 

	i.  VA rating decision, dated 29 March 2012. 

8.  The applicant was extended on active duty to participate in the Reserve Component Warriors in Transition Medical Retention Processing program for completion of medical care and treatment period from 21 November 2007 to 10 May 2009.  

9.  He was honorably released from active duty on 10 May 2009 in accordance with chapter 4 of Army Regulation 600-8-24 (Officer Transfers and Discharges) by reason of completion of his required active service.

10.  During this period of active duty, he received, the following Officer Evaluation Reports (OER): 

	a.  Release from active duty OER for the rating period 20070602 through 20071101.  No profile is mentioned on this OER. He passed the Army Physical Fitness Test (APFT) and met the height and weight requirements.  His Rater rated his performance as "Outstanding Performance - Must Promote" and his Senior Rater rated his performance/potential as "Best Qualified/Center of Mass." 
	b.  Extended Annual for the rating period 20071102 through 20091129.  No profile is mentioned on this OER.  He passed the APFT and met the height and weight requirements.  His Rater rated his performance as "Outstanding Performance - Must Promote" and his Senior Rater rated his performance/ potential as "Best Qualified/Center of Mass."  Additionally, the Rater stated "Of special note, [Applicant] devoted a great deal of time and effort during this rating period trying to find opportunities to deploy, which is both honorable and commendable."  

11.  He was ordered to active duty for operational support on 30 November 2009. He was assigned to a Headquarters, III Corps, Fort Hood, TX.  He was honorably released from active duty on 20 February 2010.  A DD Form 214 for this period of service is not available for review with this case. 

12.  He received a Senior Rater Option OER for the rating period 20091130 through 20100930.  Again, no profile is mentioned on this OER.  He passed the APFT and met the height and weight requirements.  His Rater rated his performance as "Outstanding Performance - Must Promote" and his Senior Rater rated his performance/ potential as "Best Qualified/Center of Mass."  Additionally, the Rater once again stated "He has devoted a great deal of energy during this rating period towards trying to deploy to either Iraq or Afghanistan, which is both honorable and commendable."  

13.  On 30 November 2010, by memorandum, the Command Surgeon, 99th Regional Support Command (RSC), Fort Dix, NJ, notified the applicant that as a result of his medical evaluation, he was found medically disqualified for continued service in the USAR under the provisions of chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  The reason of his medical disqualification is provided by the 99th RSC Surgeon's office memorandum and the DA Form 3349 (Physical Profile).   He was advised of his rights and/or options as follows: 

* Transfer to the Retired Reserve (15-year or 20-year)
* Honorable discharge
* Duty related medical evaluation board (MEB) or non-duty related physical evaluation board (PEB)

14.  On 3 December 2010, the applicant acknowledged receipt of the medical disqualification memorandum.  He indicated he believed he could perform his military specialty despite his medical condition and requested a medical review to determine his medical fitness for retention.  He elected the option to request a duty-related MEB to review his medical records for a final determination of fitness. 

15.  On 8 February 2011, Headquarters, USAR Command, Fort McPherson, GA, published Orders 11-039-00027 transferring him to the Retired Reserve effective 8 February 2011 by reason of maximum years of service.  His ARPC Form 249-E shows he completed 28 years, 5 months, and 23 days of qualifying service 

16.  On 9 February 2011, by email, his commander notified him that a review of his records indicated he had completed 28 years of commissioned service as of 13 November 2010 and that for unknown reasons, his mandatory removal date was incorrectly reflected.  Nevertheless, the error with the mandatory removal date is now corrected and as required by law, he is reassigned to the Retired Reserve effective 8 February 2011.  

17.  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

18.  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.

19.  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 PEB rates all disabilities using the VA Schedule of Rating Disabilities  Chapter 3 lists various conditions that warrant referral to an 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.

20.  DOD Directive 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for service members with service-incurred or Service aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.  Paragraph E3.P3.5. Presumption of Fitness.

	a.  Paragraph E3.P3.5.1.  Application.  Except for Service members previously determined unfit and continued in a permanent limited duty status, service members who are pending retirement at the time they are referred for physical disability evaluation enter the PDES under a rebuttable presumption that they are physically fit.  The PDES compensates disabilities when they cause or contribute to career termination.  Continued performance of duty until a service member is approved for length of service retirement creates a rebuttable presumption that a service member’s medical conditions have not caused career termination. 

	b.  Paragraph E3.P3.5.2.  Presumptive Period.  Service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs after any of the circumstances designated in paragraphs E3.P3.5.2.1. through E3.P3.5.2.4.  One of these condition is when an officer is within 12 months of mandatory retirement due to age or length of service.

	c.  Paragraph E3.P3.5.3.  Overcoming the Presumption. The presumption of fitness rule shall be overcome when:  E3.P3.5.3.1. Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or E3.P3.5.3.2. Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or E3.P3.5.3.3. The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period. When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.

21.  Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  Chapter 7 (Removal from Active Status) provides guidance, with some exceptions, for the removal of commissioned officers for maximum age and/or length of service.  Paragraph 7-2 (Length of service) of this regulation provides, in pertinent part, that LTCs will be removed upon completion of 28 years of commissioned service, if under age 25 at initial appointment.  The actual removal date will be within 30 days after the date of completion of the maximum years of service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was mobilized as an RC Soldier on 2 June 2006.  He arrived in Afghanistan on 26 June 2007.  Shortly upon arrival, he began having medical problems.  He eventually experienced a wide range of maladies and he was returned to continental United States in November 2007.  He was retained on active duty to participate in the RC Warriors in Transition medical retention program and he was ultimately honorably released from active duty on 10 May 2009 by reason of completion of his required active service. 

2.  In November 2009, he again entered active duty and served at Fort Hood, TX. Meanwhile, in November 2010, he was advised by the Command Surgeon of the 99th RSC that as a result of his medical evaluation, he was found medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501.  He was advised of his rights and/or options to transfer to the Retired Reserve (15-year or 20-year), be honorably discharged, or request a duty-related MEB or non-duty related PEB.

3.  In December 2010, the applicant acknowledged receipt of the medical disqualification memorandum.  He indicated he believed he could perform his military specialty despite his medical condition and requested a medical review to determine his medical fitness for retention.  He was discharged from the USAR in February 2011 because he reached his maximum years of service.

4.  There are many unanswered points here: 

	a.  He provides multiple DA Forms 2173 that show a variety of maladies that occurred in 2007 and 2008 but none shows he was unable to perform the duties required of his grade or specialty.  But even if those maladies affected his duty performance, his retention on active duty from the date he returned to continental United States in November 2007 to May 2009, would have addressed his medical issues and led to his honorable release from active duty on 10 May 2009.  Furthermore, if those maladies really rendered him unfit, he could not have reentered active duty on 30 November 2009. 

	b.  The key issue here is the presumption of fitness.  Was the applicant able to perform the duties required of his grade and/or military specialty?  All three of his OERs for the ratings periods 20070602 through 20071101, 20071102 through 20091129, and 20091130 through 20100930 say he was.  After all, what Soldier with medical conditions that he claims rendered him unfit would want to not only enter active duty but also deploy to Iraq or Afghanistan. 

	c.  It is unclear what condition or conditions the applicant believes rendered him unfit.  He and counsel erroneously assume since he has several DA Forms 2173 that shows he sustained certain conditions he 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.  

	d.  The RSC 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.  The RC 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).  

	e.  Although the applicant disagreed with the finding of medical disqualification - this contrary to what he now claims - he had reached his maximum years of service as a LTC and his separation was required by regulation and law.  That is why he was transferred to the Retired Reserve. 

	f.  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 he had:

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

   g.   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.  His evaluation reports show he was fully capable of performing his duties.

	h.  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.
4.  There does not appear to be an error or an injustice in his 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)                                         AR20130014418



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ABCMR Record of Proceedings (cont)                                         AR20130014418



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