IN THE CASE OF:  	  

		BOARD DATE:  4 June 2015	  

		DOCKET NUMBER:  AR20140011054 


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 retroactive retirement by reason of physical disability, effective 30 June 2005.

2.  The applicant states:

	a.  He was allowed to separate under an incorrect and incomplete medical evaluation while other underlying medical issues remained unidentified.

	b.  He was also allowed to separate without any financial consideration for his 15 years of honorable service.

	c.  On 6 June 2005, the Physical Evaluation Board (PEB) found him fit for duty in spite of the "DCCS's" statement that he "is unable to perform basic Soldier skills as outlined on his DA 3349"  and that he “is unable to perform MOS duties 91W…”

	d.  Consequently, he received an honorable discharge upon acceptance into medical school on 30 June 2005, which he believed would offer him another opportunity to continue to serve based on his aptitude in spite of his physical limitations.

	e.  Effective 1 July 2005, the Department of Veterans Affairs (VA) rated him 80 percent disabled, which rebuts the presumption that what the Army did in his case was correct.

	f.  The Board's letter to him dated 25 October 2013 stated, "Since the Board is not an investigative body and since there is a rebuttable presumption that what the Army did in your case was correct," which provides additional premise to seek redress through this honorable Board to reconcile his VA rating against his PEB fit for duty determination.  

3.  The applicant provides:

* Self-authored letter to the Board (Undated)
* Army Review Boards Agency letter, dated 25 October 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 June 2005
* DD Form 149 (Application for Correction of Military Records), dated 18 September 2013
* Chronological Record of Medical Care, dated 4 April 2005
* Walter Reed Army Medical Center Neurology Clinical Neurology Report, dated 10 January 2005
* Neuropsychological Evaluation, dated 1 November 2004
* Notification of Approval of PEB Action, dated 6 June 2005
* PEB Proceedings, dated 2 June 2005
* Medical Evaluation Board (MEB) Proceedings, dated 25 May 2005
* MEB Narrative Summary
* DA Form 3349 (Physical Profile), dated 23 March 2005
* Orders 006-0502, dated 6 January 2005
* Sleep Disorders Center of Virginia Sleep Study Report, dated 2 March 2005
* DD Form 2808 (Report of Medical Examination), dated 21 January 2005
* military certificates of course completion, awards and decorations
* National Personnel Records Center letter, dated 26 November 2008
* Official military personnel records
* VA records

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 28 November 1989.  He completed training as a medical specialist.  He remained on active duty through continuous reenlistments and extensions.

3.  On 23 March 2005, the applicant received a permanent physical profile due to chronic lower back pain "L3" and depression "S2."  The attending physician stated the applicant's physical profile did not require a change in his military occupational specialty (MOS) or duty assignment and that he could perform duties in accordance with MOS specifications.  This physical profile superseded previously issued profiles.  The profile (DA Form 3349) was authenticated by the medical doctor, the approving authority and the applicant's company commander.
The profiled included the following limitations and instructions:

* no 2 mile run
* no Army Physical Fitness Test (APFT) sit-ups
* no APFT push-ups
* no unlimited running
* no unlimited walking
* running and jumping exercises at his own pace and no rucksack marching
* no carrying load bearing equipment exceeding 30 pounds
* inability to construct fighting position
* applicant requires MEB/PEB 

4.  On 15 May 2005, an MEB convened to determine whether the applicant should be referred to a PEB for evaluation.  The MEB diagnosed the applicant with chronic low back pain secondary to herniated discs at L3-4, L4-5, L5-S1 (medically unacceptable in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3, paragraph 3-39c).  In item 15, the applicant indicated he did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The MEB recommended referral to a PEB.  The applicant agreed with the findings and recommendation of the MEB on 26 May 2005 and he authenticated the form.

5.  On 2 June 2005, a PEB convened to determine the applicant's fitness for retention in the Army.  The PEB determined:

	a.  Based on a detailed review of the evidence of record he did not have any functional impairment which prevented satisfactory performance of duty.  The PEB found him fit for duty in his current grade and specialty.

	b.  He could train for and perform any of the three alternative aerobic events for the APFT and perform all of the functional activities of a Soldier in his grade, experience and assignment.  He could qualify with his assigned weapon and his profile did not deny him the use of chemical protective garments to include the protective mask, nor did it preclude the wear of protective body armor, the Kevlar helmet and load bearing equipment.  His most recent noncommissioned officer evaluation reports covering periods up to October 2004 indicates that he achieved a rating of excellence or success in all rating categories.  His senior rater recommended immediate promotion and noted that both his overall performance and potential were "top block."  His commander recommended retention.

	c.  The PEB further noted that in accordance with current regulations, any restriction imposed by the serial profile (DA Form 3349) is subject to a request for reconsideration by the unit commander (AR 40-501, paragraph 7-12).  Deployability is a commander's decision and non-deployablity, moreover, is not an unfitting condition.

	d.  He and his commander must insure that a copy of his current (131112) physical profile and profile limitations are reflected in his official military personnel file.

6.  The PEB found him physically fit and recommended that he be returned to duty.  The applicant concurred with the PEB's findings and authenticated the form.  On 6 June 2005, the PEB was approved by a designated representative for the Secretary of the Army.

7.  On 30 June 2005, the applicant was honorably discharged under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, at the expiration of his term of service.  He completed 15 years, 7 months, and 3 days of net active service.

8.  The applicant provides copies of his Army medical records and his VA medical records.  None of these documents show he was unable to perform basic Soldier skills as outlined on his DA Form 3349.  His VA Rating Decision is not available.  However, a review of a VA medical consultation sheet dated 20 January 2011, authenticated by his VA primary care physician, shows the applicant had verified service connected disability of 80 percent for the following conditions:
* sleep apnea syndromes, 50 percent
* major depressive disorder, 30 percent
* paralysis of sciatic nerve, 10 percent
* gastritis, 10 percent
* degenerative arthritis of the spine, 10 percent
* chronic laryngitis, 0 percent
* myclonic convulsions, 0 percent
* superficial scars, 0 percent
* eczema, 0 percent
* migraine headaches, 0 percent
* chronic maxillary sinusitis, 0 percent

9.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

10.  AR 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

11.  AR 635-40, paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

12.  AR 635-200 sets policies, standards, and procedures for the orderly administrative separation of Soldiers.  Chapter 4 states Soldiers will be separated upon expiration of their enlistment or fulfillment of their service obligation.  Soldiers who are physically unfit for retention but who were accepted for, or continued in, military service will not be separated because of their expiration of term of service unless processing for separation because of physical disability is waived.   
13.  Public Law 112-81, Section 504, Fiscal Year (FY) 2012 National Defense Authorization Act (NDAA) dated 31 December 2011, and Public Law 102-484, Section 4403, FY 1993 NDAA dated 23 October 1992, authorized the temporary early retirement authority (TERA).  The TERA allows the Services to offer early retirement to Soldiers who have completed at least 15 years of active service.  The intent of this law is to allow the Secretary concerned to meet the reduction in force through the voluntary early retirement of certain grades and certain MOS skills or who are serving in designated competitive categories, and to provide retired pay to Soldiers who become medically disqualified.  This authority is discretionary and is not an entitlement.   The FY 2012 guidance reinstates the FY 1993 guidance which expired in 2001.  The TERA it is a very limited program that the Army elects to use as part of a comprehensive force management strategy to shape the force.

14.  Title 10, USC, section 3914 states that personnel who have completed 20 years of active federal service in the U.S. Armed Forces may be retired at their request upon completion of all required service obligations at the time of retirement. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  There is insufficient evidence in the available record and the applicant has not provided sufficient evidence to substantiate his contention that he was allowed to separate with an incorrect and an incomplete medical evaluation.  

3.  The available evidence shows that an MEB convened to determine whether he should be referred to a PEB for consideration.  The applicant indicated during the MEB process that he did not desire to continue on active duty.  The PEB convened and determined that he was fit for duty and they recommended that he be returned to duty to perform the duties of his office, grade and rank.  (The question of deployability is at the discretion of his commander.)  The applicant concurred with the findings and recommendation made by the PEB.  According to the applicable regulation, for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  While his physical profile limited some of his abilities to perform basic Soldier skills, the PEB made recommendations to his commander on how to adjudicate the profile.  One's inability to perform certain basic Soldier skills is not by itself unfitting.  The applicant's appellant rights were protected throughout this process. 

4.  The applicant separated from active Federal service based on completing his military service obligations.  Subsequently, he was awarded an 80 percent disabling rating from the VA for a medley of medical conditions that included low back pain and depression.  The VA is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists, that is was service connected, and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned post service.

5.  The law authorizing a 15-year retirement had expired by 2005.  In FY 2012, the law for TERA was activated to allow early retirements to assist in shaping the force.  Soldiers interested in TERA must apply for it.  It is not an entitlement.  At the time of the applicant's separation from active duty, there was no provision of TERA that would allow this Board too favorably consider retiring the applicant at 15 years of active Federal service.

6.  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)                                         AR20140011054



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140011054



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1