IN THE CASE OF:	   

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140006379 


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, correction of his records to reverse the decision by the U.S. Army Physical Disability Agency (USAPDA) that found him fit for duty and to have his mandatory retirement date (MRD) extended in order to complete his Physical Evaluation Board (PEB) processing.

2.  The applicant states he was denied an extension of his MRD and not allowed to complete his Medical Evaluation Board (MEB) process before he was retired from the Indiana Army National Guard (INARNG) on 31 January 2014.  He was told that his MRD extension request was denied because he had received a presumption of fit determination; however, the U.S. Army Physical Disability Agency (USAPDA) memorandum, dated 26 March 2014, reverses his presumption of fitness. 

3.  The applicant provides:

* a USAPDA memorandum, SUBJECT: Final Disposition of Presumption of Fitness finding, dated 26 March 2014
* his Department of Veterans Affairs (VA) memorandum, dated 
20 September 2013

CONSIDERATION OF EVIDENCE:

1.  On 3 June 2001, the Director of Personnel for the INARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

2.  On 14 January 2014, an Informal Physical Evaluation Board (IPEB) convened and found the applicant was physically fit and his disposition was determined to be fit.  Section IV (Medical Conditions Determined Not To Be Unfitting) of 
his DA Form 199 (IPEB Proceedings) stated:

The evidence in the case file establishes that the applicant was within
12 months of his MRD, on 30 April 2012, when he entered the Physical Evaluation Disability System on 2 December 2013.  Although the applicant was placed in an incapability status in May 2012 he was performing duties befitting his experience level, office and rank, when he entered the presumptive period on 30 April 2012.  His medical impairments of inflammatory myositis, generalized and status post right hip total replacement are neither grave nor acute, nor have they seriously deteriorated during the presumptive period.

3.  The applicant was counseled and concurred with the findings and recommendations of the IPEB on 14 January 2014.  He elected to transfer to the Retired Reserve in lieu of being separated for disability with entitlement to disability severance pay or in lieu of being separated without entitlement to disability benefits, as applicable.

4.  On an unknown date, he requested retention beyond his MRD in order to complete his Integrated Disability Evaluation System (IDES) processing.  

5.  On 6 January 2014, the Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) disapproved his request for retention in the Ready Reserve.  This official stated that the applicant had 31 years of qualifying service for non-regular retired pay and having reached age 62 on 19 April 2013, he was immediately eligible for retired pay and to apply directly to the VA for disability evaluation.  The applicant's period of service was ratified from 1 May 2012 until 1 February 2014, and this period of service was deemed to be creditable service for all purposes.

6.  The applicant was transferred to the Retired Reserve on 31 January 2014.

7.  On 24 March 2014, the USAPDA administratively terminated the applicant's PEB proceedings based on his separation from the INARNG, effective 
31 January 2014.

8.  On 26 March 2014, in a memorandum addressed to the President, U.S. Army PEB, Fort Sam Houston, TX, the USAPDA stated that after a review of the applicant's case there was insufficient information as to whether or not he was performing duties near or close-to near full time prior to entering the presumptive period of his chronic condition.  To clarify the issue they obtained additional information from the applicant's supervisor which indicated that the applicant was only able to complete, at most 4 hours a day, 2-3 times a week.  This additional information supported that the applicant was not performing duties befitting his experience before entering the presumptive period for chronic condition.

9.  On the same day, the USPDA notified the applicant by memorandum that there may have been an error in the final disposition of his presumption of fitness determination and informed the applicant of the appeal process.

10.  On 16 May 2014, U.S. Army Human Resources Command, published Orders C05-494300 directing his retirement and he was placed on the Retired List in his retired grade of colonel effective 1 February 2014. 

11.  In connection with the processing of this case, an advisory opinion was received from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  This official recommended the applicant's request for extension beyond his MRD be returned without action for the following reasons:

* the applicant had withdrawn his request
* his MRD was extended from 30 April 2011 to 30 April 2012
* ASA (M&RA) disapproved his extension request and ratified his service from 1 May 2012 through 1 February 2014 as creditable service for all purposes
* his additional medical conditions could be consider by the VA without the need for MEB/PEB

12.  A subsequent advisory opinion, dated 25 November 2014, issued by the Agency Legal Advisor, USAPDA, stated that a review of the applicant's case determined that the applicant overcame the presumption of fitness because of his inability to perform his assigned military duties, caused by his condition of inflammatory myositis, before entering the presumptive period.  All other listed conditions did not overcome the presumption of fitness.  The USAPDA then directed that the PEB findings be corrected and returned the case file to the PEB for forwarding to the VA for rating of the unfitting condition.  Unfortunately, before the PEB could correct the findings and receive a VA rating, the applicant was retired from the military.  The USAPDA recommended that the applicant's records be corrected to show:

* he was found unfit for inflammatory myositis
* his medical condition was rated at 40 percent under the Veterans Affairs Schedule for Rating Disabilities (VASRD), code 5002, symptom combinations productive of definite impairment of health objectively supported by examination findings
* he was retired by reason of permanent disability

13.  The applicant provided a VA rating decision, dated 20 September 2013, which does not show his inflammatory myositis was rated as a service connected disability.

14.  DODI 1332.18 (Disability Evaluation System), dated 5 August 2014, establishes policy, assigns responsibilities, and provides procedures for referral, evaluation, return to duty, separation, or retirement of Service members for disability in accordance with Title 10, U.S. Code (USC); and incorporates and cancels DODI 1332.38 and the Under Secretary of Defense for Personnel and Readiness (USD(P&R)) Memorandums.  Appendix 2 to Enclosure 3, Standards for Determining Unfitness due to Disability or Medical Disqualification, states in:  

	a.  Section 5(a) (Presumption of Fitness), the DES compensates disabilities when they cause or contribute to career termination.

		(1)  Service members who are pending retirement at the time they are referred for disability evaluation are presumed fit for military service.  Service members may overcome this presumption by presenting a preponderance of evidence that he or she is unfit for military service.  The presumption of fitness may be overcome when:  (a) An illness or injury occurs within the presumptive period that would prevent the Service member from performing further duty if they were not retiring; (b) A serious deterioration of a previously diagnosed condition, including a chronic one, occurs within the presumptive period, and the deterioration would preclude further duty if the Service member were not retiring; or (c) The condition for which the Service member is referred is a chronic condition and a preponderance of evidence establishes that the Service member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period because of the condition.

		(2)  Service members are not presumed fit for military service in these instances of a pending retirement:  (a) The disability is one for which a service member was previously determined unfit and continued in a permanent limited duty status.  The presumption of fitness will be applied to other medical impairments unless the medical evidence establishes they were impacted by the original unfitting disabilities; (b) Selected Reserve members who are eligible to qualify for non-regular retirement pursuant to the provisions of section 12731b of Reference (c); and (c) Reserve Component (RC) members referred for non-duty-related determinations.
	b.  Section 5(b) (Presumptive Period).  The Secretaries of the Military Departments will presume Service members are pending retirement when the preparation of the Service member’s MEB narrative summary occurs after an officer has been approved for selective early retirement or is within 12 months of mandatory retirement due to age or length of service or when an RC member is within 12 months of mandatory retirement or removal date and qualifies for a   20-year letter at the time of referral for disability evaluation.

15.  Directive-type Memorandum (DTM) 11-015 explains the IDES.  It states: 

	a.  The IDES is the joint DOD-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability.  The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments.  Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment.

	b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness Memoranda.  All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances.  Service members whose cases were initiated under the legacy DES process will not enter the IDES.

	c.  IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards.  Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. 

	d.  Medical information used to substantiate the existence or severity of unfitting conditions will generally be no older than 6 months from the date of the medical exam.  Information exceeding that time frame may be used if more current information would not substantially affect the existence or severity of unfitting conditions.

	e.  If, after separation from service and attaining veteran status, the former Service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, correction of his records to reverse the decision by the USAPDA that found him fit for duty and to have his MRD extended in order to complete his PEB processing.

2.  On 14 January 2014, after being denied a second extension of his MRD, the applicant was considered by an IPEB and determined to be fit for duty on the presumption of fitness rule.  He did not appeal the PEB findings.  He was placed on the Retired List on 1 February 2014. 

3.  On 26 March 2014, the USAPDA reviewed the applicant's case and obtained information that indicated the applicant was not performing his duties befitting his experience before entering the presumptive period for his chronic condition and notified the applicant that his presumption of fitness finding may have been in err.

4.  The intent of the Army disability system is to compensate Soldiers who are unable to qualify for retirement and complete their careers due to service-connected disabilities.  Based on the evidence presented by the USAPDA, there appears to have been an error in the applicant's processing in that relevant medical history was omitted and this omission led to an erroneous presumption of fitness.

5.  There is sufficient evidence his condition of inflammatory myositis prevented him from performing the duties befitting his rank, grade, and experience before entering the presumptive period.  His supervisor indicated that the applicant was only able to complete his duties, at most 4 hours a day, 2-3 times a week.  This is a clear indication that he was unable to perform his duties satisfactorily.  

6.  This error was discovered after the applicant had been permanently retired; therefore, it would be appropriate to correct his IPED determination to show he was unfit prior to entering the presumptive period for the chronic medical condition of inflammatory myositis with a disposition of permanent retirement by reason of disability at the rate of 40 percent and correct his retirement orders and separation document to show this change.

7.  This administrative action does not require any additional medical examination and as such there is no need for him to be extended beyond his MRD.  His request for extension should be denied. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by having the USAPDA:

	a.  amend his DA Form 199, dated 14 January 2014, to show a determination of unfit for the medical condition of inflammatory myositis, rated at 40-percent under the VASRD, code 5002 with applicable substantiating narrative forwarded to VA for IDES rating determination; and

	b.  should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances, less any entitlements already received.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to extension of his MRD.



      _______ _   _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)                                         AR20140006379





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140006379



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1