IN THE CASE OF:
BOARD DATE: 2 July 2014
DOCKET NUMBER: AR20130018721
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 reconsideration of her previous request to change her Reserve retirement to a Physical Disability Retirement.
2. The applicant states, in effect, her case should be reconsidered based on the additional supporting documents she provides. She stated in the previous Record of Proceedings (ROP):
a. "She should have been retired due to physical disability for several conditions, including migraine headaches and hysterectomy with migraine headache side effects."
b. "When she was demobilized after being on active duty for 8 years, she was not counseled by her commanding officer and was not aware that she could be considered for possible disability."
3. The applicant provides:
* Two Certificates of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act (FMLA))
* Two Fitness for Duty Certifications (FMLA)
* Two letters from the City of Houston Fire Department
* Memorandum for Record
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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120007672, on 10 January 2013.
2. The applicant provided two Certificates of Health Care Provider for Employee's Serious Health Condition (FMLA), two Fitness for Duty Certifications (FMLA), two letters from the City of Houston Fire Department, and a Memorandum for Record as new evidence. This evidence was not previously considered by the Board and; therefore, it warrants consideration.
3. After having previous enlisted service in the Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR) on 27 July 1990. She entered active duty on 13 March 2009. She held military occupational specialty 42A (Human Resources Specialist) and attained the rank/grade of master sergeant/E-8.
4. As stated in the previous ROP:
a. Her last noncommissioned officer evaluation report (NCOER) on file, for the period ending 30 September 2010, shows her competence was rated as "excellence," she passed her Army Physical Fitness Test on 7 April 2010, and she "exuded the physical and mental strength to endure long hours of work under stressful conditions." This NCOER does not indicate she was on a profile.
b. Her commander wrote a memorandum for record, dated 20 December 2011 wherein the commander stated the applicant's abrupt decision to retire without proper counseling or health evaluation possibly deprived her of disability retirement benefits. He observed her experiencing debilitating migraines. In 2005, they were going to lunch and she became unable to even do that. She had to be dismissed for the day, but was at work the next day. Subsequently he saw this condition "consistently compromise (her) quality of life
She is often unable to achieve professional or personal productivity."
c. The 27 August 2011 Department of Veterans Affairs (VA) rating decision granted her:
* 100 percent temporary disability from May to July 2011 for surgical hysterectomy and 30 percent after 1 July 2011
* 30 percent for migraine from 31 May 2011
* 10 percent for abdominal scar from the hysterectomy from 31 May 2011
* 10 percent each for left and right repaired bunions from 31 May 2011
* 10 percent for lichen planus (non-contagious skin or mouth rash) from 31 May 2011
* 10 percent for degenerative arthritis of both knees from 31 May 2011
* special housebound compensation from 31 May to 1 July 2011
* special compensation for anatomical loss of a creative organ from
31 May 2011
d. A DD Form 2807 (Report of Medical History), dated 12 August 2003, physician noted arthritis, bunions of both feet, occasional swollen knees, knees occasionally lock-up or give-way, fractured thumb (1999), frequent headaches (for past 6 years), and irregular menstrual cycle.
e. A DD Form 2697 (Report of Medical Assessment), dated 20 August 2003, applicant reported bilateral knee pain and lost work for swollen bunions and headaches.
f. A DD Form 2796 (Post Deployment Health Assessment), dated 20 August 2003, applicant reported one visit to sick call with swollen, stiff or painful joints.
g. A DD Form 2796, dated 3 December 2008, applicant reported she was in good health; had spent no time hospitalized during the 60 months; she had bad headaches that still bothered her but she had not been on profile; and had trouble remembering things which still bothered her but she had not been on profile. However, the health care provider indicated she was on profile or limited duty for "lower extremity" which was incurred or worsened during the deployment. No referral was made.
h. A DD Form 2796, dated 24 May 2011, the applicant reported bad headaches; swollen, stiff or painful joints; trouble concentrating, easily distracted; forgetful or trouble remembering things, skin diseases or rashes. She reported a total hysterectomy on 30 March 2011 and indicated she was taking medication for migraines, knee pain, and pseudo-dementia. She indicated that she would follow-up with her private health care provider and/or the VA for all of her problems.
5. She was released from active duty on 1 October 2011 and transferred to the Retired Reserve.
6. She provided two Certificates of Health Care Provider for Employee's Serious Health Condition (FMLA) and a Fitness for Duty Certification (FMLA), dated
6 May 2013 and 27 August 2013.
a. the document dated 6 May 2013 shows:
* she had been having migraine headaches since 2006
* the treating physician saw her on 8 May 2013
* her condition would cause periodic flair-ups which would prevent her from performing her job duties and it would be medically necessary for her to be absent from work
* her migraines occurred two times a week and generally lasted for three hours per occurrence
* her doctor indicated she could return to work (regular duty) on 7 May 2013 without any restrictions
b. The document dated 27 August 2013 shows:
* she had been having migraine headaches since 2006
* the treating physician saw her on 8 May 2013
* her condition would cause periodic flair-ups which would prevent her from performing her job duties and it would be medically necessary for her to be absent from work
* her migraines occurred two times a week and generally lasted for three hours per occurrence
* her doctor indicated she could return to work (regular duty) on
27 August 2013 without any restrictions
7. She provided two letters from the City of Houston Fire Department, dated
8 May 2013 and 11 September 2013. These letters were FMLA approval letters (intermittent) and explained the reason for the approval and they type of leave required.
8. She provided a memorandum for record from her former supervisor, dated
1 July 2013, wherein Captain (CPT) RH stated she observed the applicant's duty performance from 10 September 2010 to 1 October 2011. She stated:
* the applicant informed CPT RH she had a history of migraine headaches dating back to 2006
* CPT RH witnessed her suffer from migraine headaches which required her to leave work on several occasions to seek medical attention
* the applicant had an abdominal hysterectomy in March 2011 and experienced complications following surgery (medically-induced menopause)
* the medically-induced menopause caused severe sweating and excessive episodes of incapacitation where she could not perform her assigned duty
* the applicant became physically and mentally unable to satisfactorily perform the assigned duties of her grade and position
8. Title 10, U.S. Code (USC), chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 Physical Evaluation for Retention, Retirement, or Separation).
a. The objectives of the system are to:
* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected
b. Soldiers are referred to the PDES:
* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS Medical Retention Board (MMRB)
* are command-referred for a fitness-for-duty medical examination
* are referred by HRC
c. The PDES assessment process involves two distinct stages: The medical evaluation board (MEB) and the physical evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either
separated from the military or are permanently retired, depending on the severity
of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.
d. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, 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. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. 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. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness. Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.
10. Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.
11. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.
DISCUSSION AND CONCLUSIONS:
1. The applicant provided a letter from a former supervisor who stated she had migraines and suffered from debilitating menopause symptoms as a result of a hysterectomy. Her supervisor indicated these medical issues interfered with her ability to adequately perform the military duties of her grade and MOS. However, it appears her former supervisor did not refer her for medical evaluation as a result of her not being able to perform her duties.
2. She also provided evidence from the VA in her previous case and FMLA paperwork for this case. However, these documents are based on medical examinations which occurred after she was placed into the Retired Reserve. 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.
3. The evidence of record shows she had a hysterectomy and history of migraine headaches. However, this condition was never determined by medical authorities to have failed retention standards or found unfitting. Furthermore, her record does not contain any information showing she had an MEB/PEB or even a physical profile. Nevertheless, she is currently claiming the medical conditions from which she suffers were debilitating and interfered with her ability to adequately perform the military duties of her grade and MOS because she chose to retire without a health evaluation.
4. In order to be separated or retired for disability, the Army has a process that begins with entry into the PDES. Referral to the Army PDES requires that a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition. In the applicant's case, there is no evidence to show she had:
* a permanent physical profile
* a diagnosis that her menopause symptoms or migraines failed retention standards
* 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
5. 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.
6. 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 to amend the decision of the ABCMR set forth in Docket Number AR20120007672, dated 10 January 2013.
_______ _ _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) AR20130018721
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