IN THE CASE OF:	  

		BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20140002005 


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 a medical discharge from the Army.

2.  The applicant states his unit, Headquarters and Headquarters Company, 364th Regiment (Combat Support), did not extend his separation date.  The Fort Lewis medical review board took 2 years and his physical evaluation board (PEB) proceedings were terminated on 3 January 2014.  He received notice in January 2014. 

3.  The applicant provides:

* Memorandum, subject:  Administrative Termination of PEB Proceedings 
* Orders 13-291-00003 (Retired Reserve)
* Orders 13-291-00002 (reduction to master sergeant (MSG))
* Department of Veterans Affairs (VA) rating decision
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* VA Form 21-0819 (VA/Department of Defense (DOD) Joint Disability Evaluation Board Claim)
* 2012 MEB Narrative Summary (NARSUM)
* 2012 Medical examination, X-rays, referrals, and specialty consults
* List of Medication History
* DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement)
* Personnel Qualification Record
* March 2012 Defense Finance and Accounting Service Military Leave and Earnings Statement
* DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating periods 20060801-20070731 and 20070801-20080118
* Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points)
* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* Orders 12-307-00022 (reassignment within sub-command)
* Orders A-01-801314 (retention on active duty) and Orders 
A-01-801314A07, A-01-801314A03, and A-06-614589A-03 (amendments)
* Orders 08-036-00047 (active duty)
* Orders A-06-61589 (active duty) and Orders A-06-614589A01 and 
A-06-614589A02 (amendments)
* Orders A-01-501763 (assignment)
* DA Form 3349 (Physical Profile)
* DA Form 5889 (PEB Referral Transmittal Document)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in February 1953. 

2.  The applicant previously served in the U.S. Marine Corps and the Army National Guard (ARNG) (19 November 1988 to August 2000). 

3.  He enlisted in the U.S. Army Reserve (USAR) on 11 August 2000.  He initially held military occupational specialty (MOS) 76X (Subsistence Supply Specialist). 

4.  He was ordered to active duty on 27 January 2003.  He served in MOS 55B, later 89B (Ammunition Specialist).  He was assigned to the 1st Battalion, 364th Regiment, 4th Brigade, 91st Division, Fort Lewis, WA.  

5.  On 10 March 2004, the U.S. Army Human Resources Command issued the applicant a Notification of Eligibility for Retired Pay at Age 60.

6.  In January 2009, he underwent a medical examination that resulted in his entry into the legacy disability evaluation system.  

7.  On 27 January 2009, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the conditions below.  The MEB recommended the applicant's referral to a PEB.  He was counseled and agreed with the MEB's findings and recommendation.


Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Diabetes mellitus type 2 

X
2.  Chronic post-traumatic stress disorder 

X
3.  Left ear hearing loss
X

4.  Left knee pain 
X

5.  Low back pain
X

6.  Hypertension
X

7.  Bilateral carpal tunnel syndrome
X

8.  Hypercholesterolemia
X

9.  Gastroesophageal reflux syndrome
X

10.  Right middle finger tensynovitis
X

11.  Bilateral hydroceles 
X

12.  Erectile dysfunction
X

11.  Seasonal allergies 
X

8.  On 20 March 2009, an informal PEB convened and reviewed the medical data and other facts presented to include the commander's statement.  The PEB found the applicant's conditions did not prevent him from performing the duties required of his grade and military specialty and determined that the applicant was physically fit for duty.  The PEB recommended his return to duty as fit.  He was counseled and concurred. 

9.  He was honorably released from active duty on 16 October 2009 to the control of the USAR, by reason of completion of his required active service.  

10.  It appears while serving in the USAR, he underwent another medical evaluation that resulted in his entry into the Integrated Disability Evaluation System (IDES).  

11.  On 2 March 2012, he executed a VA Form 21-0819 indicating his desire to have his case considered by the VA/DOD Joint Disability Evaluation Board. 

12.  On 29 May 2012, he was issued a permanent physical profile for diabetes mellitus, type 2; bilateral knee osteoarthritis; post-traumatic stress disorder (PTSD); and moderate obstructive sleep apnea.  

13.  On 10 July 2012, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the conditions below.  The MEB recommended the applicant's referral to a PEB.  He was counseled and agreed with the MEB's findings and recommendation.
Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Diabetes mellitus type 2 

X
2.  Chronic bilateral knee pain

X
3.  PTSD

X
4.  Moderate Obstructive Sleep Apnea 
X

5.  Bilateral feet planus
X

6.  Bilateral feet plantar fasciitis
X

7.  Gastroesophageal reflux syndrome 
X

8.  Erectile dysfunction
X

9.  Bilateral carpal tunnel syndrome
X

10.  Hypertension
X

11.  Pseudophakia
X

14.  On 31 January 2013, a PEB Liaison Officer (PEBLO) submitted a PEB Referral Transmittal Document with allied/supporting documents. 

15.  On 30 September 2013, the VA finished adjudicating his case.  The VA recommended a 50 percent disability rating for PTSD; 20 percent for type II diabetes mellitus, and 10 percent for osteoarthritis.  The VA also proposed different ratings for service-connected disabilities/conditions.

16.  On 18 October 2013, Headquarters, U.S. Army Reserve Command, Fort Bragg, NC, published Orders 13-291-00003 transferring him to the Retired Reserve, effective 6 February 2013, by reason of having attained the maximum age.

17.  On 3 December 2013, the PEB President returned the PEB proceedings to the Commander, Madigan Army Medical Center for further evaluation, documentation, and information required for adjudicating the case.  The PEB President stated: 

	a.  The PEB requires inclusion of last three NCOERs, as requested per email to the PEBLO on 25 November 2013.  The PEB notes Soldier's Retirement Points Accounting System (RPAS) end date is in 2011 which documented three good years from 2008 to February 2011; however, the most current NCOER in the case file runs through January 2008.  If not locatable, please have unit commander document this with the reason and provide documentation – as discussed per prior phone conversation.



	b.  The PEBLO was also advised that the applicant's current expiration of term of service (ETS) documentation was required along with an updated RPAS. This case was returned for "Why Code(s) 152 and 156."  

   c.  Further, the PEBLO was requested to forward the information or documentation within 14 days.

18.  The Military Treatment Facility responded to this inquiry by providing the PEB with a copy of the applicant's transfer to the Retired Reserve orders effective 6 February 2013 (Orders 13-291-00003). 

19.  On 6 January 2014, his PEB Proceedings were administratively terminated as orders had already been published on 3 January 2014 placing him in the Retired Reserve, effective 6 February 2013.  He was no longer eligible for PEB processing. 

20.  On 9 May 2014, HRC published Orders C05-493998 placing him on the Retired List in his retired grade of MSG/E-8, effective 6 February 2013, his 60th birthday. 

21.  DOD Instruction 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability.  

	a.  Paragraph E3.P3.5.2. (Presumptive Period) states 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. below.  

		(1)  E3.P3.5.2.1. When a member’s request for voluntary retirement has been approved.  Revocation of voluntary retirement orders for purposes of referral into the DES does not negate application of the presumption;

		(2)  E3.P3.5.2.2. An officer has been approved for Selective Early Retirement; 

		(3)  E3.P3.5.2.3. An officer is within 12 months of mandatory retirement due to age or length of service; and

		(4)  E3.P3.5.2.4. An enlisted member is within 12 months of his or her retention control point (RCP) or Expiration of Active Obligated Service (EAOS) but will be eligible for retirement at his or her RCP/EAOS. 

	b.  Paragraph E3.P3.5.3. (Overcoming the Presumption).  The presumption of fitness rule shall be overcome when:

		(1)  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 

		(2)  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 

		(3)  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant entered the IDES in March 2012 when he signed the VA/DOD Joint Disability Evaluation Board Claim.  His NARSUM was dictated on 29 May 2012 and his MEB convened on 10 July 2012.  His VA rating occurred in September 2012.  All this occurred within 12 months of his mandatory removal date of February 2013 due to maximum age.  

2.  Accordingly, his PEB proceedings were administratively terminated since orders were published placing him on the Retired List, effective 6 February 2013, his 60th birthday.  His military service was not cut due to his medical conditions.  It was cut by reason of having achieved maximum age.  Therefore, he was not entitled to a medical discharge. 

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)                                         AR20140002005



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ABCMR Record of Proceedings (cont)                                         AR20140002005



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