BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140009854 


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, voidance of his honorable discharge from the U.S. Army Reserve (USAR), reinstatement to Reserve duty as a chaplain, and referral to a non-duty related physical evaluation board (PEB).

2.  The applicant states:

* he was denied his right to request referral to a PEB
* he was not properly counseled regarding the Physical Disability Evaluation System (PDES) process for Reservists
* he was previously issued a permanent physical profile in 2004 while activated and underwent the PEB process which at the time found him fit for duty
* he misunderstood the PEB process for a Reservist in a troop program unit to be the same as the PEB process he went through as an activated Reservist
* he was not provided competent guidance and assistance
* he did not know he was required to submit a request for PEB review and presumed the process to be automatic
* once aware of the requirement to submit a request he did so on 21 May 2012
* he believed the 63rd Regional Support Command (RSC) Surgeon's Office received his request for a PEB and that it was complete
* on 12 June 2012, he was informed that his packet was incomplete
* 13 months later during the 2013 battle assembly, he was informed that he was noncompliant with the requests for documents and needed to submit a new packet to the 63rd RSC Surgeon's Office as he was medically disqualified for continued service
* on 2 November 2013, he was counseled by Lieutenant Colonel M____, the group executive officer, who informed him that he was non-deployable due to his diabetes and that if he were to get out of the military he may be eligible for veterans' benefits
* due to this counseling and his lack of knowledge about the PDES process, he felt required to request a discharge in lieu of a medical board
* he was medically discharged without consideration of the nature and degree of his physical disability in relation to the requirements of the duties he would be expected to perform
* a chaplain of his rank would not be expected to perform combatant or field duties as he would serve as a brigade or group chaplain, assistant division chaplain, depot chaplain, service school instructor or garrison chaplain
* the unit he was assigned to was non-deployable
* he was previously found fit for duty and his medical issues did not interfere with his prior mobilizations within the continental United States
* his officer evaluation reports reflect that he adequately performed the normal duties of his office and rank
* his detachment commander, First Lieutenant S____, completed a DA Form 7652 (Physical Disability Evaluation System Commander's Performance and Functional Statement) reporting that his medical condition and limitations do not inhibit him from performing his duties to standard
* his desire is to be reinstated in the USAR and undergo a PEB to determine his fitness for duty

3.  The applicant provides:

* index of attachments
* self-authored statement
* email correspondence
* response to Congressional inquiry
* Notification of Medical Disqualification
* DA Form 3349 (Physical Profile)
* Acknowledgement of Notification of Medical Unfitness for Retention – Election of Options
* Headquarters, 63rd RSC, Orders 13-308-00003
* additional DA Forms 3349, dated 20 September 2011, 30 August 2012, and 3 October 2012
* Periodic Health Assessment (PHA), dated 18 October 2013
* DA Form 7652
* multiple DA Forms 67-9 (Officer Evaluation Report)
* DA Form 705 (Army Physical Fitness Test Scorecard)
* DA Form 2-1 (Personnel Qualification Record)
* U.S. Army Physical Evaluation Board approval memorandum, dated 20 November 2004
* chronology of events
* spreadsheet of points of contact and email correspondence
* Reserve Health Readiness Program documentation
* additional self-authored statement

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve Commissioned officer of the Army on 5 January 2000 and served in the U.S. Army Reserve (USAR) as a chaplain.  The highest rank he attained was major/O4.

2.  Records indicate he was twice ordered to active duty for operational support at Fort Sill, Oklahoma, where he served in the capacity of chaplain.  His first mobilization began 10 February 2003 and was extended from 20 May 2004 through 8 February 2005 to allow for his participation in the medical retention processing program for completion of medical care and treatment.

3.  The DA Form 3349, dated 5 May 2004, indicates he was given a permanent profile rating of 3 for the medical condition of diabetes mellitus type 2 on oral medication and determined to require a PEB.  While his complete PEB proceedings are not available for review, records indicate the U.S. Army PEB notified the applicant via memorandum on 20 November 2004 that he was determined fit for active duty with his permanent physical profile.

4.  He was again ordered to active duty for operational support at Fort Sill, Oklahoma, from 2 June 2008 through 22 December 2008, while presumably still having a permanent physical profile for diabetes.  His documented physical profiles from that time are not available for review.

5.  He received modified physical profiles on 20 September 2011 and 30 August 2012, stating he is not able to live in an austere environment without the worsening of his medical condition.  These physical profiles removed the previous W (Military Occupational Specialty Medical Review Board (MMRB)) and Y (Fit for Duty) profile codes referenced in Army Regulation 40-501 (Standards of Medical Fitness), table 7-2, and added profile code E (No continuous consumption of combat rations).

6.  On 23 March 2012, the applicant was notified via memorandum from the Health Services Branch, 63rd RSC, of his medical disqualification for continued service in the USAR due to his permanent physical profile.  He was informed that he had the right to choose which option he would like to pursue in order to properly adjudicate his medical fitness.  The notification states that if he were to request to go to a PEB for determination of medical fitness retention standards he was given a 30-day suspense in which to return his Acknowledgment of Notification of Medical Unfitness for Retention – Election of Options document and another 30 days beyond that suspense to submit all further required documentation.  The memorandum clearly states that failure to respond within 30 days or supply required documents within the allotted time frame will result in his case being labeled as non-compliant and administrative actions will be initiated.

7.  The DA Form 3349, dated 4 October 2012, updated the applicant's permanent physical profile to include the following conditions:  diabetes, sleep apnea, surfer's eye, and neck and shoulder pain.  He was deemed to not meet retention standards in accordance with (IAW) Army Regulation 40-501, chapter 3.

8.  The 4 October 2012 physical profile further states: "Diabetes, IAW 40-501, chapter 3-11d, Soldier requires referral to medical board based on review of AHLTA/VISTA [electronic healthcare database] records.  The previous PEB is not applicable due to a worsening of the condition and an escalation of treatment.  Soldier needs access to medications, a clean environment to monitor blood sugars, and must be able to maintain dietary management and follow exercise program and diabetes education program as prescribed by MD.  No continuous consumption of combat rations.  Red medical warning tag required.  Sleep Apnea [IAW paragraph] 3-41c, stable on CPAP [continuous positive airway pressure therapy].  Needs access to reliable source of electricity and spare parts and tubing for the CPAP machine.  If Soldier is without CPAP for greater than 72 hours he cannot fire a weapon, drive a vehicle, operate dangerous equipment, stand guard, or perform roles that require constant attention."

9.  The applicant provided an undated copy of an Acknowledgement of Notification of Medical Unfitness for Retention – Election of Options form signed by him in which he requests an informal PEB to review his medical records for a final determination of his medical fitness for retention standards.

10.  He also provided a DA Form 7652, dated 25 October 2013, signed by his detachment commander, First Lieutenant S____, which includes the following statement:  "[Applicant] performs well in his role.  His chronic illness does not prevent him from passing the APFT [Army Physical Fitness Test] and maintaining functional activity.  To the best interests of the Soldier and the Army, Soldier may proceed with the further request."

11.  There is no evidence of record and the applicant has not provided any showing he submitted a complete packet to the 63rd RSC requesting PEB referral at any time between his notification of medical disqualification for continued service in the USAR on 23 March 2012 and the publication of his discharge orders on 4 November 2013.

12.  Headquarters, 63rd RSC, Orders 13-308-00003, dated 4 November 2013, reflect the applicant's honorable discharge from the USAR by virtue of medical disqualification, not the result of his own misconduct, with an effective date of 19 December 2013.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability incurred while entitled to basic pay.  It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  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.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several line-of-duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

14.  Army Regulation 40-501 governs medical fitness standards for retention and separation, including retirement.

	a.  Paragraph 3-3 (Disposition) provides that U.S. Army Reserve Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 9.

	b.  Paragraph 7-11 (Preparation, Approval, and Disposition of DA Form 3349) states that code designations (defined in table 7-2) are limited to permanent profiles for administrative use only and are to be completed by the profiling officer.  Per table 7-2, code descriptions are as follows:

		(1)  Code E:  No continuous consumption of combat rations.

		(2)  Code W:  MMRB.  This Soldier has a permanent profile rating of 3 or 4 who has been evaluated by a MMRB with a recommendation to retain or reclassify and return to duty.

		(3)  Code Y:  Fit for Duty.  This Soldier has been determined to be fit for duty (not entitled to separation or retirement because of physical disability) after complete processing under Army Regulation 635-40.

	c.  Paragraph 9-12 (Request for PEB Evaluation) states Reserve Component (RC) Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  Because these are cases of RC Soldiers with non-duty related medical conditions, medical evaluation boards are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities.  Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the RSC or the U.S. Army Human Resources Command Surgeon's Office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reinstatement in the USAR to undergo a non-duty related PEB was carefully considered.

2.  The applicant underwent a PEB in 2004 in which he was found fit for duty, but subsequent to that PEB received several renewed permanent physical profiles in 2011 and 2012 reflecting additional medical conditions as well as annotating that his previous PEB was not applicable due to a worsening of his diabetic condition and an escalation of treatment.

3.  He was notified in writing of his medical disqualification for continued service in the USAR on 23 March 2012 and informed of his options, to include the option of requesting referral to a PEB.  He was given a suspense date of 22 April 2012 to submit his election of options and an additional 30 days after that to complete his packet.  By the applicant's own admission, his packet was still incomplete in October 2013 and the command found him noncompliant with requests for documentation.

4.  If the applicant did not fully understand the PDES process, misunderstood his request for PEB packet to be complete, or otherwise presumed he was fit for duty, he failed to exercise due diligence as a major with 13 years of service.  He had ample time and opportunity to make himself knowledgeable on the process or inquire after the status of his packet in the intervening 20 months between when he was informed of his medical disqualification and the submission of his request for medical discharge in lieu of PEB.

5.  In view of the foregoing evidence, there is no basis for granting 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 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)                                         AR20140009854



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ABCMR Record of Proceedings (cont)                                         AR20140009854



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