IN THE CASE OF:	  

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20130020179 


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 record to show he was medically retired instead of released from active duty (REFRAD).

2.  The applicant states:

	a.  in October 2011, he was honorably discharged from South Korea with a separation code of "JGB" (by reason of failure to be selected for permanent promotion);

   b.  despite his very high level of accomplishments, he was involuntarily separated;
   
   c.  during this period of active duty, his health was broken;
   
   d.  while on a deployment in Afghanistan in 2008, his gallbladder exploded at a remote forward site;
   
   e.  he waited 5 days to be evacuated to Landstuhl Army Hospital in Germany, where he had surgery on the 6th day;
   
   f.  he was later sent to Walter Reed for four months due to further complications;
   
   g.  his physician assistant at the Salem Veteran's Hospital recommends he receive a proper medical discharge and retirement;
	h.  in addition, in the 1980s, while stationed at West Fort Hood, he was irradiated as a result of working in a complex tunnel where nuclear bombs were stored in the 1950s;

   i.  he returned to Fort Campbell in 2009 and was denied a medical board; and
   
   j.  he claims he was unfit for duty and then sent to Korea where his appendix ruptured prior to his expiration term of service (ETS).

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Memorandum, dated 29 May 2011
* DA Form 3349 (Physical Profile)
* Army Discharge Review Board (ADRB) letter, dated 15 December 2010
* VA Rating Decision, dated 3 March 2010
* Numerous medical documents

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he initially served in the Regular Army (RA) in an enlisted status from 2 September 1982 to 2 July 1986.  Upon his release from active duty on 2 July 1986, he was transferred to the U.S. Army Reserve (USAR), having completed 3 years, 10 months, and 1 day of creditable active service.

2.  On 8 April 2003, he was appointed a Reserve commissioned officer of the Army, in the rank of first lieutenant (1LT) in the Chaplains Branch, indefinitely.  On 21 April 2003, he was ordered to active duty to fulfill his 3-year active duty requirement as an obligated volunteer officer.

3.  He was promoted to captain (CPT) on 21 April 2003.   On 22 November 2005, he was appointed as an RA officer.

4.  He received a change-of-rater officer evaluation report (OER) covering the rating period 26 June 2010 through 23 June 2011, for his duties as a Battalion Chaplain at Headquarters and Headquarters Company, 3rd Battalion, 2nd Aviation Regiment, in the Republic of Korea.  This OER shows:

* his rater evaluated his performance and potential as "Outstanding Performance, Must Promote" with comments:  unlimited potential, promote to major, send to resident Intermediate Level Education (ILE) and assign as brigade chaplain
* he passed the Army Physical Fitness Test and met the height and weight standards
* his senior rater evaluated his promotion potential as "Best Qualified" 
* his electronic signature is dated 20 June 2011

5.  On 1 October 2011, he was honorably discharged from active duty after having completed a total of 12 years, 3 months, and 12 days of creditable active service.  The DD Form 214 issued him at that time shows in:

* item 25 (Separation Authority) the entry Army Regulation 600-8-24, paragraph 2-41
* item 26 (Separation Code) the entry "JGB"
* item 28 (Narrative Reason for Separation) the entry "non-selection, permanent promotion"

6.  On 2 October 2011, he was appointed a Reserve commissioned officer of the Army, indefinitely.  He was promoted to major (MAJ) on 7 March 2012 and continuously served until he was honorably discharged from the USAR on 1 October 2012.

7.  His record is void of any medical treatment records or other documents indicating he was treated for any disabling or disqualifying (unfitting) condition(s) prior to his discharge from active duty.

8.  He provides numerous medical documents detailing his medical history and treatment during his military service.  It includes the following documents.

   a.  A Vanderbilt Medical Center report dated 6 May 2009, which shows the applicant's following past surgical history:

* gallbladder removal in 2008
* blockage in gastrointestinal track cleared with surgery in 2008
* polyps removed from colon in 2009

   b.  A Standard Form 600 (Chronological Record of Medical Care) dated 1 June 2011, shows the applicant's most recent medical treatment for his chief complaint of rash with abdominal pain.  It shows he had an appendectomy on 23 May 2011 and the disposition shows he was released without limitations.

9.  He provides multiple extracts of official military personnel file (OMPF) documents that show his awards, evaluations, service, and accomplishments.  He also provides other miscellaneous documents that show he obtained honorary recognition for former veterans who were not previously recognized for their accomplishments.

10.  Army Regulation 600-8-24 (Officer Transfers and Discharges) provides the rules for processing an involuntary release from active duty based on failure(s) to be selected for permanent promotion.

11.  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.  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.

12.  Paragraph 2-2b of the same regulation provides guidance on presumptions of fitness and states that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness that can be overcome only by clear and convincing evidence that he was unable to perform his duties.

13  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes), as in effect at the time, provided the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It stated that the SPD code "JGB" was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 2-41 for non-selection, permanent promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically retired from active duty.  Although he provides medical evidence of the treatment he received for various conditions while on active duty, his conditions were not determined to be disabling or to have ever rendered him unfit for further service.  In fact, subsequent to the medical treatment he received, he was returned to duty without limitations.

2.  The evidence of record confirms he was discharged from active duty due to his non-selection for permanent promotion.  He was not discharged because of a physically disabling condition but rather was appointed as a Reserve commissioned officer in the USAR and transferred to the Individual Ready Reserve (IRR).  Even though he did not actively participate during this period, he was considered as capable to do so.

3.  By regulation, a member's continued performance of duty creates a presumption of fitness that can only be overcome by clear and convincing evidence showing he was unable to perform his duties.  Last OER shows he was fully capable of performing his duties.  Furthermore, a separation or retirement based on a physical disability requires processing through the PDES.

4.  There is no apparent error or an injustice in this case.  He has not submitted sufficiently substantiating evidence or argument to show otherwise.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130020179





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ABCMR Record of Proceedings (cont)                                         AR20130020179



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