BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140012019 


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 her records to reverse the decision by the U.S. Army Physical Disability Agency (USAPDA) that found her fit for duty. 

2.  The applicant states the USAPDA decision on 12 November 2012 that found her fit for duty citing presumption of fitness, was arbitrary, capricious, contrary to law, and incorrect.

3.  The applicant provides a Binder that contains Exhibits A through J, as shown by a similar Binder provided by her counsel (below). 

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests: 

* Correction and/or striking of the USAPDA final administrative decision as procedurally and substantially deficient, arbitrary, capricious, not supported by substantial evidence, contrary to applicable statutes, regulations, and law, and incorrectly dated
* Correction of the USAPDA decision to approve the PEB finding of medically fit which was made despite undisputed evidentiary record that the applicant has multiple, ongoing injuries that prevented her from performing her duties 
* Ordering the remand of the applicant's personnel action to the MEB and through the Integrated Disability Evaluation System (IDES) without application of the so-called presumption of fitness and for immediate access to the medical care presently requested for her by her physician 

2.  Counsel provides a history of the applicant's military service, a procedural history of her medical processing, the USAPDA decision, and the applicant's retirement.  He describes and comments on the presumption of fitness and emphasizes the applicant's constitutional right to health care and equal protection of the law.  He further stresses the standards of proof and the preponderance of the evidence by citing several law suits and makes a comparison between the applicant's officer evaluation reports and her IDES medical documents (NARSUM, MEB, and PEB).  He further argues that finding the applicant fit constitutes a breach of the implied duty of good faith and fair dealing. 

3.  Counsel provides a similar Binder containing the same Exhibits as provided by the applicant as follows: 

* Exhibit A: IDES DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) and MEB Narrative Summary (NARSUM)
* Exhibit B: DA Form 199 (Informal Physical Evaluation Board Proceedings (IPEB))
* Exhibit C: Supplemental Written Submission by counsel on her behalf for a formal PEB Hearing Findings and Recommendations
* Exhibit D: DA Form 199-A (Formal PEB Proceedings)
* Exhibit E: Rebuttal of Formal PEB Hearing Findings and Recommendations
* Exhibit F: Response of National Capitol Region PEB to Appeal of Formal PEB Proceedings
* Exhibit G: USAPDA Approval Memorandum
* Exhibit H: Chronological Records of Medical Care
* Exhibit I: Army Board for Correction of Military Records (ABCMR) Docket Number AR20120019479, dated 11 June 2013
* Exhibit J: DA Form 3349 (Physical Profile)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in February 1963.  She will turn 60 in February 2023. 

2.  The applicant was appointed as a Reserve commissioned officer of the Army on 5 July 1985.  She completed the Army Medical Department Officer Basic and Advanced Courses Course (Medical Services (MS)).  She held area of concentration 72A (Nuclear Medicine).
3.  She served in a variety of assignments in the U.S. Army Reserve (USAR) as well as on active duty and she completed various training courses.  She was promoted to lieutenant colonel in September 2004. 

4.  She served on active duty as an MS USAR officer on multiple occasions: 

* from 19 October 1985 to 9 February 1996
* from 2 June 1997 to 26 September 1997
* from 1 December 1997 to 17 April 1998
* from 1 July 2010 to 30 June 2011
* from 1 August 2011 to 9 June 2012

5.  On 10 August 2006, the U.S. Army Human Resources Command (HRC) issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). She was assigned to a troop program unit of the USAR, 338th Medical Brigade, Chester, PA.

6.  On 2 January 2008, a PEB convened and considered her medically unacceptable condition of depression.  The PEB found her depression did not preclude further service and did not impair her service.  She requested to be continued in the USAR and her records indicated she could perform the duties required of a Soldier of her grade and specialty.  Based on a detailed review of the evidence of records, the PEB concluded she did not have any functional impairment that prevented satisfactory performance of duties.  The PEB found her "Fit for Duty" and her disposition was that of referral to her USAR unit for disposition in accordance with Reserve Component (RC) regulations.  She was counseled and advised of the findings and recommendations.  She concurred.

7.  On 24 November 2009, another PEB convened and considered her medically unacceptable condition of Diabetes Mellitus, Type II.  The PEB found her condition was controlled on oral medications and did not affect her duty performance.  Her only potential limitation was world-wide deployability.  However, given her rank and specialty this condition should not preclude her from deploying to most world-wide locations.  Based on a detailed review of the evidence of records, the PEB concluded she did not have any functional impairment that prevented satisfactory performance of duties.  The PEB found her "Fit for Duty" and her disposition was that of referral to her USAR unit for disposition in accordance with RC regulations.  She was counseled and advised of the findings and recommendations.  She concurred.

8.  She entered active duty on 1 July 2010 and served as a Nuclear Medicine Science Officer with the U.S. Army Public Health Command, Aberdeen Proving Ground, MD.  She was honorably released from active duty on 30 June 2011 and she was transferred to her USAR unit. 

9.  She entered active duty on 1 August 2011 and served as a Nuclear Medicine Science Officer with the U.S. Army Public Health Command, Aberdeen Proving Ground, MD. She was honorably released from active duty on 9 June 2012 and she was transferred to her USAR unit. 

10.  During June 2012, she received a Release from Active Duty (REFRAD) Officer Evaluation Report (OER) covering the rating period 1 August 2011 through 9 June 2012, for her duties as Program Manager, Health Physics program, Aberdeen Proving Ground, MD.  Her Rater rated her performance as "satisfactory Performance-Promote" and her Senior Rater rated her overall potential as "Fully Qualified/Center of Mass." 

11.  The applicant's NARSUM, dated 23 November 2013, shows a diagnosis of 35 medical conditions, 3 of which were medically unacceptable: 

* Diabetes Type II, without retinopathy
* Bilateral carpal tunnel syndrome and De Quervain's tenosynovitis (tendons on the thumb side of right wrist) 
* Bilateral thumb basal joint osteoarthritis 

12.  On 12 February 2013, HRC published orders ordering her to active duty for a period of 179 days, effective 30 January 2013 to 27 July 2013 (amended to 
22 January 2014), to participate in the Reserve Component (RC) Warrior in Transition Medical Retention Processing Program for completion of medical care and treatment.  She was ordered to report (attached) to the Warrior Transition Unit, Fort Meade, MD. 

13.  On 11 June 2013, the ABCMR adjudicated her case (ABCMR Docket Number AR20120019479, received 2 November 2011).  She had petitioned this Board for correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) covering the period 1 August 2011 to 9 June 2012.  She contended she was undergoing medical treatment.  The Board granted relief      to correct her separation date on the DD Form 214 from 9 June 2012 to            24 September 2012. 

14.  On 23 November 2013, an MEB convened at Fort Meade, MD, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable or acceptable conditions listed below.  The MEB recommended her referral to a PEB.  She indicated that she would like to continue serving her country as an MS officer. 

Condition
Medically Acceptable
Medically Unacceptable
1.  Diabetes Type II, without retinopathy

X
2.  Bilateral carpal tunnel syndrome and De Quervain's tenosynovitis

X
3.  Bilateral thumb basal joint osteoarthritis
X

4.  Anxiety Disorder, not otherwise specified
X

5.  Shin splints, right
X

6.  Stress fracture of bilateral feet
X

7.  Lumbar spondylosis
X

8.  Degenerative joint disease, right knees
X

9.  Chondromalacia patella, left
X

10. Bilateral hip joint degenerative disease 
X

11.  Cervical spondylosis
X

12.  Chronic suppurative otitis media
X

13.  Chronic sinusitis
X

14.  Mastoiditis
X

15.. Deviated nasal septum 
X

16.  Allergic rhinitis
X

17.  Brachiocephalic vein calcification
X

18.  Migraine headaches 
X

19.  GERD
X

20.  Internal hemorrhoids
X

21.  Hypertension
X

22.  Neurogenic bladder 
X

23.  Scars
X

24.  Normal hearing with subjective tinnitus
X

25.  Refractive error, bilateral
X

26.  Dry eyes, bilateral 
X

27.  Alopecia
X

28.  Lipoma
X

29.  Ingrown toenails
X

30.  Xerosis
X

31.  TMJ
X

32.  Bilateral shoulder tendonitis 
X

33.  Triceps tendonitis, bilateral
X

34.  Endometriosis
X

35.  Mild head injury with no residuals
X

15.  On 4 December 2013, an informal PEB convened and found the applicant "physically fit and her disposition be fit."  The PEB noted: 

	a.  In adjudicating the applicant's case, the PEB considered the presumption of fitness rule.  DES compensates disabilities when they contribute to an early career termination.  Presumption of fitness in cases such as the applicant's are discussed in DOD Instruction (DODI) 1332.38 (Physical Disability Evaluation) and Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 3. 

	b.  The applicant's mandatory removal date (MRD) is 1 August 2013.  Her NARSUM is dated 23 October 2013 which is after the MRD and therefore within the presumptive period which makes the applicant's pending retirement and fit by presumption.  In order to overcome the presumption of fitness, one of the following must be established 

* Within the presumptive period an acute, grave illness or injury occurs that would prevent the Soldier from performing further duty if he or she were not retiring
* 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 
* The condition for which the Soldier is referred is a chronic condition and a preponderance of evidence establishes the Soldier was not performing duties befitting her experience in the office, grade, rank, or rating before entering the presumptive period.

	c.  When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration. 

	d.  The PEB considered each of her medically unacceptable conditions (diabetes mellitus, carpel tunnel syndrome, and bilateral thump joint osteoarthritis).  The available evidence did not demonstrate that her conditions were so severe as to overcome the presumption of fitness.  

	e.  The PEB also considered her other conditions of anxiety disorder, shin splints, lumbar spondylosis, bilateral hip degenerative joint disease, and cervical spondylosis.  These conditions meet retention standards.  However, they are listed on her profile as limiting.  The unit commander indicated these conditions affect unit mission accomplishment.  Continued service did not put the applicant's health at risk from them and the conditions individually or in combination do not put undue burden on the Army to protect her in the performance of her duties. 

	f.  The PEB further considered all her other conditions but these condition met retention standards and are not listed on her physical profile as limiting.  

	g.  Based on a review of the objective medical and personnel evidence of records and considering the physical requirements for reasonable performance of duties required by grade and military specialty, the PEB find her fit for duty within the limitations of her profile.  

16.  On 18 December 2013, the applicant elected, through her counsel, not to concur and demanded a formal hearing of her case.  Her counsel argued that: 

* the presumption of fitness does not apply and/or is overcome by the medical evidence
* her medically unacceptable chronic diabetes renders her unfit and the presumption is not applicable 
* her medically unacceptable chronic bilateral carpel tunnel syndrome renders her unfit and the presumption is not applicable
* her medical records reveal limited duty and work restrictions throughout 2011/2012 for various chronic medical conditions which render her completely and permanently disabled 

17.  On 22 January 2014, HRC published orders ordering her retained on active duty for a period of 180 days, from 22 January 2014 to 20 July 2014, to participate in the RC Medical Hold Transfer for Completion of medical care and treatment.  She was retained in Medical Retention Processing status, assigned to the Warrior Transition Brigade, Bethesda, MD with duty at Walter Reed, MD.

18.  On 30 January 2014, a formal PEB convened and again found the applicant "physically fit and her disposition be fit."  At the formal hearing, the applicant asked the PEB to show she overcame the presumption of fitness rule for her multiple diagnoses not meeting medical retention standards.  She and her counsel argued that she had not been performing the duties of 72A since 2011 which is before she entered the presumptive period.  Although medical notes indicated she had duty limitations before entering the presumptive period, there is no documentation of what those limitations were.  Her officer evaluation reports document outstanding performance.  Based upon careful review of the medical records, the exhibits submitted to the formal PEB, and AR 635-40, the PEB maintains its original decision that she is fit by presumption in accordance with DODI 1332.38, E3.P3.5, and AR 635-40, paragraph 3-2. 

19.  On 18 February 2014, she submitted, through her counsel, a rebuttal of the formal hearing findings and recommendations.  Her counsel contended that:

* there was a mistake of law in applying the presumptive of fitness rule 
* even with her current MRD, the applicant was unable to perform her duties before August 2012
* the PEB should take into account the equitable nature of the laws and due to seemingly contradictory evidence, any doubt should be ruled in her favor

20.  On 20 March 2014, the National Capitol Region PEB President responded to the applicant and her counsel.  The PEB President stated: 

	a.  Although she did not submit any new objective medical evidence that had not been previously considered, her case file was carefully reviewed.  Taking into consideration the current evidence, the PEB did not find new objective evidence which changes the presumption of fitness determination in her case.  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.  Soldiers who are within 12 months of their MRD prior to entering the DES are presumed to have completed a successful career, as their disabilities did not prevent them from reaching their maximum allowable service time. 

	b.  Current law established the MRD for commissioned officers in the rank of LTC as the first day of the month following the month they reach 28 years of commissioned service.  She was commissioned on 5 July 1985.  Her calculated MRD is indicated in her records as 1 August 2013, which means the presumptive period began on 1 August 2012.  Counsel cited 20 July 2014 as her current retirement date but actual retirement date does not change the mandated MRD. 

	c.  Counsel submitted a DA Form 7674-1 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty) as evidence that she was not fit to perform the military duties between 9 June 2012 and 28 February 2013.  Item 10a (Diagnosis and Prognosis) of his form states chronic facial pain and headache, chronic otitis media and hearing, all of which the MEB found to have met retention standards.  Had she not been found fit by presumption, these conditions would not have been considered by the PEB in making fitness determination. 

	d.  Counsel also argues that her diabetes type II is an unfitting condition and that the MEB determined this condition does not meet medical retention standards.  However, her profile limitation for this condition does not prevent her from performing duties of a 72A, Nuclear Medicine Science.  Box 5 of her DA Form 3349 (Physical Profile) indicates she was unable to carry and fire an individual assigned weapon, and cannot move 40 pounds while wearing usual protective gear at least 100 yards.  But, this does not limit her ability to perform the duties of her current assignment.  The assignment is appropriate for her grade, qualifications, and experience.  The profile prohibits deployment to an austere environment.  Deployability is a commander's decision and non-deployability is not an unfitting condition. 

	e.  Counsels contends the PEB placed undue weight on her OERs.  A finding of fitness for continued military service is made on the basis of the preponderance of the evidence.  In accordance with DODI 1332.38, E3.P3.6.2., preponderance of the evidence is defined as that evidence that tends to prove one side of a disputed fact by outweighing the evidence on the other side.  Preponderance does not mean a greater number of witnesses or a greater mass of evidence.  It rather means the superiority of evidence on one side or the other of a disputed fact.  It is a term that refers to quality rather than quantity of the evidence.  The DES is performance based.  Commanders and first line supervisors are best positions to evaluate a Soldier's ability to perform his or her duties.  OERs document performance and potential for promotion.  The PEB acknowledged the seriousness of her medical conditions but none of the conditions meets the criteria for overcoming the presumption of fitness rule as outlined in DODI 1332.38, E3.P3.5.5.

	f.  There is insufficient evidence her condition has permanently or severely worsened.  Her condition did not prevent her from performing the duties befitting her rank, grade, and experience before entering the presumptive period on 1 August 2012.  She was not removed from her duties or transferred to a Warrior Transition Unit before entering her presumptive period, which would have been a clear indication that she was unable to perform her duties.  Her OERs document satisfactory performance and indicate she was successfully performing her duties several months into her presumptive period.  

	g.  Based on this review, the PEB finds no reason for a change in its actions in her case.  As such, the PEB reaffirms its findings.  Her entire case file, including her rebuttal, was transferred to the USAPDA for review. 

21.  On 7 April 2014 (although the memorandum is dated 12 November 2013, the digital signature confirms the date it was signed), after a thorough review of her entire case file, the USAPDA approved the findings of "fit for duty."  This memorandum was constituted a final administrative action regarding her disability processing.  If her condition deteriorated or determined to have worsened, her chain of command or military treatment facility should initiate a new medical evaluation board and forward for a determination of fitness.  

22.  On 12 May 2014, she was issued a temporary physical profile listing the conditions of post-traumatic stress disorder (PTSD), chronic, moderate; depression, memory loss/lapses, and auditory processing deficits.  The physician listed the entry "I continue to recommend separation via a medical board."

23.  On 11 June 2014, Walter Reed National Military Medical Center, Bethesda, MD published orders releasing her from active duty, not by reason of physical disability, and assigning her to her USAR unit, 330th Medical Brigade, Horsham, PA, effective 3 July 2014.

24.  She was honorably released from active duty on 3 July 2014 in accordance with paragraph 2-7 of AR 600-8-24 ( Officer Transfers And Discharges) by reason of completion of her required active service.  She was transferred to her USAR unit, 330th Medical Brigade, Horsham, PA,

25.  On 24 July 2014, Headquarters, U.S. Army Reserve Command published orders reassigning her to the Retired Reserve effective 24 August 2014 by reason of maximum authorized years of service. 

26.  DODI 1332.38, dated 14 November 1996, implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability; making administrative determinations for service members with service-incurred or service aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.  

	a.  E3.P3.5.1 (Presumption of Fitness-Application).  Except for Service members previously determined unfit and continued in a permanent limited duty status, service members who are pending retirement at the time they are referred for physical disability evaluation enter the DES under a rebuttable presumption that they are physically fit.  The DES compensates disabilities when they cause or contribute to career termination.  Continued performance of duty until a Service member is approved for length of service retirement creates a rebuttable presumption that a Service member’s medical conditions have not caused career termination.

	b.  E3.P3.5.2 (Presumptive Period).  Service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs when an officer is within 12 months of mandatory retirement due to age or length of service. 

	c.  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.

	d.  E3.P3.6.2. Preponderance of Evidence.  Findings about fitness or unfitness for Military Service shall be made on the basis of preponderance of the evidence.  Thus, if a preponderance (that is, more than 50 percent) of the evidence indicates unfitness, a finding to that effect will be made. If, on the other hand, a preponderance of the evidence indicates fitness, the Service member may not be separated or retired by reason of physical disability

27.  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) 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.

28.  Title 10, USC, section 14507 (Removal from the reserve active-status list for years of service: reserve lieutenant colonels and colonels of the Army, Air Force, and Marine Corps and reserve commanders and captains of the Navy) states in sub-section (a) Lieutenant Colonels and Commanders.—  Unless continued on the reserve active-status list (RASL) under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of lieutenant colonel or commander and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the RASL) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service.

29.  AR 135-155 (Promotion of Commissioned Officers and Warrants Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the USAR.  Paragraph 4-33 states unless continued on the RASL under 10 USC 14701, 14702, or 14703, or can be credited with 18 or more but less than 20 years of qualifying service for retired pay (10 USC 12646, 12647, or 12686), each LTC who is not on a list of officers recommended for promotion to COL will (if not removed earlier from the RASL) be removed from the RASL on the first day of the month after the month in which the officer completes 28 years of commissioned service.  USAR officers will be transferred to an inactive status if the Secretary of the Army determines that the officers have skills which are required to meet mobilization needs; or to the Retired Reserve, or be discharged. 

30.  AR 635-40 establishes the Army physical disability evaluation system.  

	a.  Paragraph 3-2(a) (Presumptions) states the following presumptions will apply to physical disability evaluation.  Before and during active service.

		(1)  A Soldier was in sound physical and mental condition upon entering active service except for physical disabilities noted and recorded at the time of entry.

		(2)  Any disease or injury discovered after a Soldier entered active service, with the exception of congenital and hereditary conditions, was not due to the Soldier’s intentional misconduct or willful neglect and was incurred in line of duty (LD).

		(3)  If the foregoing presumptions are overcome by a preponderance of the evidence, any additional disability or death resulting from the preexisting injury or disease was caused by military service aggravation.  (Only specific findings of "natural progression" of the preexisting disease or injury, based upon well-established medical principles are enough to overcome the presumption of military service aggravation.)

		(4)  Acute infections and sudden developments occurring while the Soldier is in military service will be regarded as service-incurred or service-aggravated. Acute infections are those such as pneumonia, active rheumatic fever (even though recurrent), acute pleurisy, or acute ear disease. Sudden developments are those such as hemoptysis, lung collapse, perforating ulcer, decompensating heart disease, coronary occlusion, thrombosis, or cerebral hemorrhage.  This presumption may be overcome when a preponderance of the evidence shows that no permanent new or increased disability resulting from these causes occurred during active military service or that such conditions were the result of "natural progression" of preexisting injuries or diseases as in (3), above. 

		(5)  The foregoing presumptions may be overcome only by a preponderance of the evidence, which differs from personal opinion, speculation, or conjecture.  When reasonable doubt exists about a Soldier’s condition, an attempt should be made to resolve the doubt by further clinical investigation and observation and by consideration of any other evidence that may apply. In the absence of such proof by the preponderance of the evidence, reasonable doubt should be resolved in favor of the Soldier.

	b.  Paragraph 3-2(b) (Processing for separation or retirement from active service): 

		(1)  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

		(2)  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that:

			(a)  The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

			(b)  An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.

			(3)  A Soldier previously found unfit but approved for continuation on active duty (COAD) is evaluated according to chapter 6 of this regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a Reserve commissioned officer of the Army on 5 July 1985.  She attained the rank of LTC.  The law established the MRD for commissioned officers in the rank of LTC as the first day of the month following the month they reach 28 years of commissioned service.  Her records reflected her MRD as 1 August 2013.  

2.  In October 2013, she complained of various medical conditions.  Her NARSUM, dated 23 October 2013, listed three conditions (diabetes, bilateral carpel tunnel syndrome, and bilateral thumb joint arthritis) and 31 other conditions that met retention standards.  However, at that time the applicant indicated that she would like to continue serving her country. 
3.  She was considered by an informal PEB that found her fit for duty under the presumption of fitness rule.  Only now, 2 weeks later, she determined that the fitness for duty rule did not apply and she should be medically retired.  She did not concur and demanded a formal one.  The formal PEB made a similar determination.  She did not concur and appealed. Her appeal was considered and the findings and recommendations of the formal PEB were affirmed.  Her PEB was further reviewed by the USAPDA and the findings were approved.  

4.  Her rights were fully protected throughout the disability process.  She was not denied due process as counsel contends.  She was given the right to appeal and did so on multiple occasions.  She appeared in person and with her counsel and provided her medical documents to before the formal PEB.  The formal PEB did not find new objective evidence which changes the presumption of fitness determination in her case. 

5.  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.  Soldiers who are within 12 months of their MRD prior to entering the DES are presumed to have completed a successful career, as their disabilities did not prevent them from reaching their maximum allowable service time.  Because her MEB was dictated within 12 months of her MRD, the presumption of fitness rule applies. 

6.  There is insufficient evidence her condition has permanently or severely worsened.  Her condition did not prevent her from performing the duties befitting her rank, grade, and experience before entering the presumptive period on 1 August 2012.  She was not removed from her duties or transferred to a Warrior Transition Unit before entering her presumptive period, which would have been a clear indication that she was unable to perform her duties.  Her OERs document satisfactory performance and indicate she was successfully performing her duties several months into her presumptive period.  

7.  While the ABCMR acknowledges her medical conditions, there is no reason to change the findings of the informal and formal PEBs.  Her physical disability processing was conducted in accordance with law and regulations and she received due process.  There does not appear to be an error or an injustice in his case.  She and her counsel have not submitted substantiating evidence or an argument that would show an error or injustice occurred in her case.  In view of the circumstances in this case, there is insufficient evidence to grant her 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 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)                                         AR20140012019



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ABCMR Record of Proceedings (cont)                                         AR20140012019



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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