BOARD DATE:	  3 September 2014

		DOCKET NUMBER:  AR20140000491 


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, reconsideration of her earlier request for correction of her narrative reason for separation from "failure to comply with family care plan" to show she was discharged for medical reasons. 

2.  The applicant states:

* her past relevant civilian work did not aggravate her lower back as confirmed by the Social Security Administration (SSA) report
* she had an onset and treatment for major depressive disorder in 2002 due to her son's accident in August 2002 (skull fracture)
* there was a harassment report related to this accident and the Inspector General (IG) was involved
* her ability to lift up to 10 pounds was recommended by a civilian physician; this contradicted her commanding officer's opinion
* she had a power of attorney in relation to her family care plan for her son which contradicts her narrative reason for separation

3.  The applicant provides:

* Medicare Health Insurance Card
* New York State Identification Card
* New York State Driver License
* Expired military identification card
* Post-service SSA Notice of Decision
* Son's accident report and/or progress notes
* Notification of Military Occupational Specialty (MOS) Medical Retention Board Proceedings (previously submitted) 
* Chronological Record of Medical Care
* List of clinical codes
* Selected civilian health records
* Letter from the IG regarding harassment (previously submitted)
* Power of attorney
* Hospital discharge summary

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 AR20120008859, on 20 December 2012. 

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration since her request was not received within one year of the original Board's decision.  However, her request should be considered by the Board as an exception to policy due to the following reasons: 

	a.  Her request is dated 14 December 2013 which is within 1 year of the original Board's decision albeit it was not received until 3 days after the 1-year rule (23 December 2013).

	b.  The applicant provides a new argument and selected documents which were not previously considered by the Board. 

3.  The applicant's records show she initially enlisted in the U.S. Army Reserve (USAR) on 20 September 1985.  She was trained in and held MOS 76J (Medical Supply Specialist).  

4.  Despite a history of unexcused absences and/or unsatisfactory participation, she was allowed to reenlist and did so on multiple occasions in August 1993, May 1999, and April 2005. 

5.  Between 2003 and 2007, she was assigned to the 4220th U.S. Army Hospital, Shoreham, NY, a troop program unit of the USAR.  She held the rank/grade of sergeant (SGT)/E-5.  Her records contain Noncommissioned Officer Evaluation Reports (NCOER) for the following periods: 

	a.  An Annual NCOER, for the period November 2003 through October 2004, for duties as a Medical Supply NCO.  She passed the Army Physical Fitness Test (APFT) and met the height and weight requirements; no physical profile was mentioned or discussed, and she was able to perform her duties (albeit poorly due to inefficiency).  She was rated "Marginal" by her rater and "Fair" by her senior rater. 

	b.  A Change of rater NCOER, for the period November 2004 through March 2005, for duties as a Medical Supply NCO.  She passed the APFT and met the height and weight requirements; no physical profile was mentioned or discussed, and she was able to perform her duties (albeit poorly due to inefficiency).  She was rated "Marginal" by her rater and "Fair" by her senior rater. 

	c.  A Change of rater NCOER, for the period April 2005 through July 2005, for duties as a Medical Supply NCO.  She passed the APFT and met the height and weight requirements; no physical profile was mentioned or discussed, and she was able to perform her duties (albeit poorly due to inefficiency).  She was rated "Marginal" by her rater and "Fair" by her senior rater. 

	d.  An Annual NCOER, for the period August 2005 through July 2006, for duties as a Medical Supply NCO.  She passed the APFT and met the height and weight requirements; no physical profile was mentioned or discussed, and she was able to perform her duties (albeit poorly due to inefficiency).  She was rated "Marginal" by her rater and "Fair" by her senior rater. 

6.  The complete facts and circumstances surrounding her discharge from the USAR are not available for review with this case.  However, her records contain:

	a.  Orders Number 07-041-00085, issued by Headquarters, Army Reserve Medical Command, Pinellas Park, FL, dated 10 February 2007, honorably discharging her from the USAR, effective 10 February 2007, in accordance with Army Regulation 135-178 (Enlisted Administrative Separations).

	b.  An entry in the Soldier Management System of the U.S. Army Human Resources Command (AHRC) Interactive Web Services shows she was voluntarily discharged due to parenthood. 

	c.  An AHRC Form 249-E (Chronological Statement of Retirement Points) that shows she completed 16 years, 4 months, and 22 days of qualifying service toward non-regular retirement. 

7.  She provides her Medicare Health Insurance Card, New York State Identification Card, New York State Driver License, and an expired Military Identification Card.  She also provides: 

   a.  A Post-Service Social Security Administration Notice of Decision, dated 6 May 2013, in response to her claim for disability insurance, filed on 
8 December 2011.  This notice shows she met the eligibility criteria and was declared disabled under SSA laws, effective 31 January 2010. 

	b.  Her son's accident report and/or progress notes, dated 4 August 2002.  The report and notes describe her stress as a result of her son's injury.  Her son suffered an injury during a picnic.  He was hit in the head by a bat that was swung by another youngster. 

	c.  MOS Medical Retention Board Proceedings, dated 3 August 2003, that states she had been issued a profile for low back pain.  Her limitations included walking at her own pace and inability to lift over 10 pounds.  She was limited to walking no more than 20 feet and not permitted to lift.  The limitation on lifting limited her ability to perform in her MOS, which required occasional lifting of 50 pounds and carrying a distance of 6 feet, occasionally pushing and pulling 50 pounds 3 feet.  She was unable to perform in her duty MOS and she was not able to meet the requirements of the APFT.  She was recommended for a medical discharge.

	d.  A listing of clinical codes by Stony Brook Medicine. 

	e.  Civilian health records with multiple dates in 2004 related to her depression.  Her symptoms, marked with a positive sign, included anger, tearfulness, and sleep difficulties.  There is a negative sign next to suicidal ideation. 

	f.  A Power of Attorney, dated 19 March 1999.

	g.  A Hospital Discharge Summary, dated 26 August 2006, that shows she was admitted (and discharged) on 26 August 2006 to Mee Memorial Hospital, King City, CA.  Her discharge diagnosis was chest wall contusion, mild rhabdomyolysis, and urinary tract infection.  

8.  Army Regulation 135-178 provides for the separation of enlisted personnel of the USAR.  Chapter 6 of this regulation covers discharge for dependency or hardship.  It states in pertinent part that upon the request of a Soldier and approval of the separation authority, separation may be directed when it is considered that continued membership and service on active duty, full-time National Guard duty, or active duty for training, would result in genuine dependency or undue hardship.  Separation may be approved when all of the following circumstances exist:  the hardship or dependency is not temporary; conditions have arisen or have been aggravated to an excessive degree since entry in the Army, and the Soldier has made every reasonable effort to remedy the situation; the administrative separation will eliminate or materially alleviate the condition; and there are no other means of alleviation reasonably available.  The separation authority may approve discharge on the basis of a physical condition not mounting to disability that potentially interferes with assignment to or performance of military duty.

9.  Army Regulation 40-501(Standards of Medical Fitness) governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that Reserve Component (RC) Soldiers with nonduty-related (NDR) medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a physical evaluation board (PEB) for a determination of fitness.  The process is designed to give the Soldier with NDR impairment the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits.

10.  Title 10, U.S. Code, 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.  

	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 that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the physical disability evaluation system (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
* receive a permanent medical profile and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages - the medical evaluation board (MEB) and the 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 or not 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.  

	d.  The mere presence of 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.

11.  Title 10, U.S. Code, 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, U.S. Code, 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%.

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  Likewise, her service medical records are also not available.  The available records show she was honorably, voluntarily, and administratively discharged from the USAR on 10 February 2007 due to parenthood.  

2.  If the applicant contends her administrative separation for parenthood was improper or inequitable, she may submit her application to the Army Discharge Review Board since her administrative discharge occurred in 2007 which is still within the 15-year statute of limitations for that board.  

3.  If the applicant contends she should have been discharged for medical reasons vice voluntarily and administratively discharged due to parenthood, she has not provided sufficient evidence to support such contention.  

   a.  She provides multiple medical or administrative forms that show a variety of maladies that occurred before or after her discharge in 2007 but none shows she was unable to perform the duties required of her grade or specialty.  

	b.  The key issue here is the presumption of fitness.  Was the applicant able to perform the duties required of her grade and/or military specialty?  Her NCOERs from 2003 through 2006 clearly show she was able to perform the duties required of her MOS, she passed the APFT, and she met the height and weight standards.  No profile was mentioned anywhere on her NCOERs.  

	c.  Although an MOS Medical Retention Board appears to have recommended her for a medical discharge in August 2003, she continued to serve in the USAR and it appears she was able to perform her duties.  Her NCOERs after that date did not indicate she had a profile, and there is no evidence to show she ever questioned that they did not show she had a profile.

	d.  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 into the PDES

   e.  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.

	f.  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.

	g.  The Social Security Administration does not have the authority to determine military fitness for military personnel.  The agency works within its own laws and rules to establish eligibility for civilian work disability.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20120008859, dated 20 December 2012.



      _______ 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)                                         AR20140000491



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ABCMR Record of Proceedings (cont)                                         AR20140000491



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