IN THE CASE OF:	   

		BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140013773 


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 correction of his records to show he was determined to be unfit by the Physical Disability Evaluation System (PDES) and retired by reason of physical disability.

2.  The applicant states:

* the physical evaluation board (PEB) should not have found him fit under the presumption of fitness rule and he requests correction of this injustice
* he experienced serious deterioration of his injuries during his presumptive period
* the formal PEB interpretation of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) led to the determination that the deterioration of his injuries needed to be acute and grave and incorrectly denied him medical retirement based on that interpretation
* his injuries clearly deteriorated to the point where he was unable to serve in his rank and position, as testified by his commander, or continue to serve if promoted to colonel
* the medical evaluation board (MEB) clearly stated his injuries did not meet retention standards
* acute and grave deterioration of injuries is not the only standard for overcoming the presumption of fitness rule



3.  The applicant provides:

* Integrated Disability Evaluation System (IDES) Narrative Summary (NARSUM), dated 28 January 2014
* DA Form 3947 (MEB Proceedings), dated 7 February 2014
* one page from the informal PEB Proceedings, dated 3 March 2014
* commander's letter regarding applicant's deteriorating health and performance, dated 12 March 2014
* request for informal reconsideration of informal PEB findings, dated 14 March 2014
* reconsideration of informal PEB determination, dated 20 March 2014
* DA Form 199-1 (Formal PEB Proceedings), dated 13 May 2014
* appeal of formal PEB findings, dated 2 June 2014
* denial of formal PEB appeal, dated 4 June 2014
* approval of PEB action, dated 16 June 2014
* rebuttal and appeal of formal PEB Findings, dated 16 June 2014
* medical progress notes and letters, dated 28 May 2014, 4 June 2014, 6 June 2014, and 25 June 2014
* Standard Form 600 (Chronological Record of Medical Care), dated 21 July 2014

CONSIDERATION OF EVIDENCE:

1.  After a period of prior service in the U.S. Army National Guard that began on 18 July 1986, the applicant had continuous service in either a U.S. Army Reserve (USAR) troop program unit or as a member of the USAR Active Guard Reserve (AGR) Program until 1 August 2014 when he was transferred to the Retired Reserve in the rank of lieutenant colonel.

2.  In June 2013, the applicant received his annual officer evaluation report (OER) for the period covering 11 January 2012 through 10 January 2013.  His principal duty title is listed as Brigade S2/3 (security/operations officer).

	a.  In Part V (Performance and Potential Evaluation), his rater evaluated his performance during the rating period and his potential for promotion as "Outstanding Performance, Must Promote."

	b.  The comments from his rater in Part Vb which speak to his performance of duty state, in part:  

[Applicant] is pro-active, maintaining individual readiness and assures soldiers in his section do the same.  He has improved in personal fitness by lowering his bike time by 2 minutes despite still recovering from two knee replacements.  In summary, [applicant] has not only successfully directed the operations sections through a year of events and training in an exemplary manner, but set the example for the entire command.

	c.  In Part VII (Senior Rater), his senior rater evaluated his promotion potential to the next higher grade as "Best Qualified."

	d.  The comments from his senior rater which speak to his performance of duty state, in part:  

[Applicant] is a top performer and a valued and trusted asset in my command!...He excelled beyond my expectations by achieving the best readiness metrics in the 3rd MCDS [Medical Command (Deployment Support)]… [Applicant] executed a tremendous readiness awareness and professional development schedule and was instrumental in the coordination and execution of the 68W [Health Care Specialist] maintenance program.

3.  In June 2014, he received his annual OER for the period covering 11 January 2013 through 10 January 2014.  His principal duty title is listed as Brigade S2/3.

	a.  In Part V, his rater evaluated his performance during the rating period and his potential for promotion as "Outstanding Performance, Must Promote."

	b.  The comments from his rater in Part Vb which speak to his performance of duty state, in part:  

[Applicant] is an outstanding operations officer and his performance directly contributed to the success of the 338th MED BDE [Medical Brigade].  In addition to S3 duties, he served as the Bde XO [brigade executive officer] for 5 months during his rating period…Through his actions the 338th achieved top metrics in Operations and Training on the FGR2 [Force Generation Readiness Review] within the 3D MDSC.  His successful performance as CHOPS [Chief of Operations] helped enable the 338th to validate during VR 13 [Vibrant Response 2013] as part of the C2CRE [Command and Control Chemical, Biological, Radiological, Nuclear Response element] mission…[Applicant's] physical health has degraded since Sept 2013, resulting in 3 P's [permanent] on his PULHES.  He is currently in the MEB process…He is truly an asset to this unit and the U.S. Army.

	c.  In Part VII, his senior rater evaluated his promotion potential to the next higher grade as "Best Qualified."

	d.  The comments from his senior rater which speak to his performance of duty state, in part:  

[Applicant] is the best S3 I have worked with in my 27 year military career…He has acted as the Brigade XO effectively on numerous occasions…[Applicant] will make an excellent Battalion Commander.  He should be selected for the Army War College resident course immediately.

4.  While serving on active duty as a member of the AGR Program, he was referred into the IDES for bilateral total knee arthroplasty (reforming of the joint), left hip degenerative joint disease (DJD), type II diabetes, obstructive sleep apnea, hypertension, gastroesophageal reflux disease, left shoulder strain, right hip DJD, retained foreign bodies status/post-knee surgery, bilateral flat feet, neck strain, lumbar DJD, ankle swelling, mild cervical DJD, and tension headaches.  His NARSUM was dictated on 28 January 2014.

5.  On 7 February 2014, the MEB determined the applicant did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) for the following conditions:  bilateral total knee arthroplasty, left hip DJD, and type II diabetes.  The MEB determined he met retention standards for all other evaluated medical conditions.

6.  On 3 March 2014, he was evaluated by an informal PEB for the above listed conditions determined by the MEB not to meet medical retention standards.  The PEB considered the presumption of fitness rules while adjudicating his case and concluded that he was fit by presumption because his 28 January 2014 NARSUM was within the presumptive period (31 July 2013 to 1 August 2014) which began 1 year prior to his mandatory removal date (MRD).  The PEB further concluded that none of his conditions listed on the NARSUM were acute and grave and available evidence failed to demonstrate that his conditions were so severe as to overcome the presumption of fitness.  The Board found him fit by presumption.  Based on a review of the objective medical and personnel evidence of record and considering the physical requirements for reasonable performance of duties required by grade and military specialty, the informal PEB found the applicant fit for duty within the limitations of his physical profile.
7.  On 12 March 2014, the applicant's brigade commander authored a memorandum, the purpose of which was to provide information on the applicant's deteriorating health and performance.  He stated the applicant had difficulty standing in formation, missed multiple days of work due to his inability to walk and drive, was non-deployable due to his medical conditions, and hampered the brigade's ability to complete its assigned contingency missions due to his medical conditions.

8.  On 14 March 2014, the applicant requested informal reconsideration of the informal PEB findings, rebutting the presumption of fitness rule by claiming his bilateral knee condition and his diabetes seriously deteriorated within the presumptive period.  On 20 March 2014, the National Capital Region PEB informally reconsidered his informal PEB determination and did not find new, objective evidence to overcome the presumption of fitness determination in his case.  The medical evidence did not indicate that his conditions deteriorated to a level to be considered acute and grave, thus the board reaffirmed the findings of the informal PEB.

9.  The applicant was scheduled for a formal PEB hearing which convened on 13 May 2014.  He elected to appear at the formal proceedings and was represented by counsel.  He requested the formal PEB find he overcame his presumption of fitness based on suffering a serious deterioration of his chronic bilateral knee condition, diabetes, and left hip condition which precluded further duty since entering the presumptive period, with notable deterioration starting in September 2013.  His brigade commander testified at the proceedings that he observed the applicant appeared physically inhibited when he met him in August 2013 and that he could not adequately perform his duties at the time.

10.  The formal PEB determined the deterioration of the applicant's conditions was not equivalent to acute, grave illness or injury.  The preponderance of evidence did not demonstrate substantial impairments to his duty performance in a position befitting his rank and experience prior to his presumptive period.  His conditions did not contribute to the premature end of his military career; therefore, the board found him fit by presumption on 13 May 2014.

11.  On 2 June 2014, the applicant appealed the formal PEB findings, contending that all diagnoses occurred prior to entering the presumptive period and making the case that the formal PEB misinterpreted Department of Defense Instruction (DODI) 1332.38, which provides guidance on presumption of fitness cases.  The applicant's PEB counsel makes the argument that Army Regulation 635-40 erroneously expands upon the original intent of the DODI by infusing language into the regulation regarding the requirements for overcoming the presumption of fitness, thus causing misinterpretation of the DODI guidance by the formal PEB.  Counsel argued that either a serious deterioration of a previously diagnosed condition be present or duty performance being detrimentally impacted by a chronic condition prior to entering the presumptive period ought to merit the same consideration as acute, grave illness or injury in overcoming the presumption of fitness.

12.  On 4 June 2014, the board reviewed the appeal and did not find sufficient basis to change the applicant's fitness determination.  They opined the formal board determined his conditions have not seriously deteriorated and clarified that the criterion the PEB uses for evaluating the deterioration of chronic conditions states the deterioration must be equivalent to an acute, grave illness, as definitively stated in Army Regulation 635-40, which meets the intent of the DODI.  After a Soldier has demonstrated acceptable performance up to the presumptive period, as was the case with the applicant, the DODI has made overcoming a presumption of fitness an exceptional event only necessitated when a Soldier requires a disability retirement prior to reaching his regular retirement date due to a short, severe, life-threatening illness or injury.

13.  The applicant's entire case file was then forwarded to the U.S. Army Physical Disability Agency (USAPDA) for review.  On 16 June 2014, the USAPDA reviewed the applicant's PEB case file and approved the PEB findings of physically fit under the presumption of fitness rule.

14.  The applicant provided progress notes and letters from his civilian medical doctor dated 28 May 2014, 4 June 2014, 6 June 2014, and 25 June 2014 regarding the status of his recovery post-total knee arthroplasty and the state of his left hip osteoarthritis.  These documents attest to his progress at that point, stating his left knee is good, his right knee is not as good as the left knee post-surgery but improved, he is an appropriate candidate for consideration of left total hip replacement, and that he is medically unfit without left hip replacement surgery.  These documents emanate from within the applicant's presumptive period.

15.  On 31 July 2014, the applicant was honorably released from active duty to the USAR Control Group (Reinforcement) under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), due to maximum service or time in grade.  On 1 August 2014, the applicant was transferred to the Retired Reserve due to maximum authorized years of service.

16.  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 (Presumption of Fitness – 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. (Presumption of Fitness – 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. (Evidentiary Standards for Determining Unfitness Because of Physical Disability – 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.

17.  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; and incorporates and cancels DODI 1332.38 and the Under Secretary of Defense for Personnel and Readiness memoranda.  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 he or she is 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 nonregular retirement pursuant to the provisions of section 12731b of reference (c); and (c) Reserve Component 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 a Reserve Component member is within 12 months of mandatory retirement date or MRD and qualifies for a 20-year letter at the time of referral for disability evaluation.

18.  Title 10, U.S. Code, section 14507 (Removal from the Reserve Active Status List (RASL) 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), subsection (a) (Lieutenant Colonels and Commanders), states:  Unless continued on the 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.

19.  Army Regulation 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 Title 10, U.S. Code, section 14701, 14702, or 14703, or can be credited with 18 or more but less than 20 years of qualifying service for retired pay (Title 10, U.S. Code, section 12646, 12647, or 12686), each lieutenant colonel who is not on a list of officers recommended for promotion to colonel 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 the officers have skills which are required to meet mobilization needs; or to the Retired Reserve; or be discharged.



20.  Army Regulation 635-40 establishes the Army PDES.

	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 the line of duty.

		(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 who 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he was determined to be unfit by the PDES and retired by reason of physical disability has been carefully considered.

2.  An MEB determined the applicant did not meet retention standards for three medical conditions and he was referred to an informal PEB.  His conditions were considered by an informal PEB that found him fit for duty under the presumption of fitness rule.

3.  He rebutted that the fitness for duty rule did not apply and he should be medically retired.  He did not concur and requested a formal PEB.  The formal PEB made a determination of fitness for duty and he likewise did not concur and appealed.  His appeal was considered and the findings and recommendations of the formal PEB were affirmed.  His PEB was further reviewed by the USAPDA and the findings were approved.

4.  His rights were fully protected throughout the disability process.  He was given the right to appeal and did so on multiple occasions.  He appeared in person and with his counsel before the formal PEB where both his arguments and medical documents were given due consideration.  The formal PEB did not find new objective evidence which changed the presumption of fitness determination in his case.

5.  The intent of the Army PDES is to compensate Soldiers who are unable to qualify for retirement and complete their careers due to service-connected disabilities.  A Soldier who is within 12 months of his or her MRD prior to entering the IDES is presumed to have completed a successful career, as his disabilities did not prevent him from reaching his maximum allowable service time.  Because his NARSUM, dated 28 January 2014, was dictated within 12 months of his MRD, the presumption of fitness rule applies in this case.

6.  There is insufficient evidence showing his condition has permanently or severely worsened.  His condition did not prevent him from performing the duties befitting his rank, grade, and experience before entering the presumptive period on 31 July 2013.  He was not removed from his duties or transferred to a Warrior Transition Unit before entering his presumptive period, which would have been a clear indication that he was unable to perform his duties.  His OERs from that period document outstanding performance and indicate he was successfully performing his duties prior to and during his presumptive period.

7.  While the Army Board for Correction of Military Records acknowledges his medical conditions, there is no reason to change the findings of the informal and formal PEBs.  His physical disability processing was conducted in accordance with law and regulations and he received due process.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant him 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)                                         AR20140013773



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ABCMR Record of Proceedings (cont)                                  AR20140013773



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