IN THE CASE OF:
BOARD DATE: 4 June 2015
DOCKET NUMBER: AR20140015199
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 revocation of his Physical Evaluation Board (PEB) and correction of his record to show he was determined to be unfit by the physical disability evaluation system (PDES) and discharged/retired retired by reason of physical disability.
2. The applicant states his medical board hearing should be revoked due to the incompetency of the board to read facts and the lack of medical expertise and uneven representation. He contends that his medical condition which is impairing him from doing what is right was the same that motivated him to leave without challenging results. He was unfairly treated by the same Army that he swore to defend and fight beside at all times. The process and decision pertaining to his sickness have never been definitively determined even though every doctor believes what the sickness is.
3. The applicant provides the following documents extracted from his Department of Veterans Affairs (VA) medical records:
* an 8-page Neuropsychology Consult, dated 12 January 2011
* page 1 of a 3-page Neurology Note, dated 4 February 2011
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 was born on 27 August 1952. Following several years of enlisted service in the Regular Army, U.S. Army Reserve (USAR) and Army National Guard (ARNG), the applicant was appointed as a Reserve second lieutenant/O-1 on 27 August 1982. He entered active duty on 29 August 1983 and was promoted to captain/O-3 on 1 August 1987.
3. An undated memorandum shows the Chief, Patient Administration Division (PAD), U.S. Army Medical Department Activity, Fort Leonard Wood, MO, requested to have the applicant medically retained on active duty beyond his expiration term of service (ETS) date because he was undergoing a PEB for multiple sclerosis. It was noted that his ETS date was 1 August 1983 and that the medical board could not be completed by that date. Enclosed with this memorandum is an affidavit wherein the applicant acknowledged that he had been fully advised of the rights and advantages that may accrue to him by voluntarily remaining on active duty in the Army beyond his ETS for the purpose of completing hospital care and/or disability evaluation under the provisions of chapter 61, Title 10 U.S. Code, and had been fully advised that if he elected to be discharged or released from active duty (REFRAD) as scheduled he would not, after such discharge or REFRAD, be eligible for separation or retirement for physical disability. In consideration of the above, he stated that he desired retention on active duty in the Army beyond his scheduled ETS date.
4. A DD Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 16 July 1993, shows:
a. An MEB diagnosed the applicant with right hemiparesis, originating in March 1993, incurred while entitled to base pay.
b. The MEB diagnosed the applicant with probable multiple sclerosis, originating in March 1993, did not exist prior to service, but was permanently aggravated by service. It was noted that this condition would render him unfit for active duty in accordance with Army Regulation 40-501 (Standards of Medical Fitness).
c. The MEB recommended the applicant's condition be considered by a PEB.
d. The applicant agreed with the board's findings and recommendation.
5. A DA Form 3349 (Physical Profile), dated 21 July 1993, shows the applicant was issued a temporary 90-day profile based upon a diagnosis of probable multiple sclerosis. The expiration date of the profile was 21 October 1993.
6. A DA Form 199 (PEB Proceedings) shows a PEB was convened at Fort Lewis, WA on 3 August 1993. After careful consideration, the PEB determined the applicant had probable multiple sclerosis, with right hemiparesis, elevated immunoglobulin (IgG) levels, vision problems, and normal gait. The PEB opined that his condition was not stable. His condition was not the result of intentional misconduct, willful neglect or unauthorized absence; it was incurred or aggravated while entitled to basic pay; it was incurred or aggravated in the line of duty (ILOD) in the time of national emergency or after 14 September 1978; and his condition was the proximate result of performing duty. The PEB determined the applicant's functional limitations in maintaining the appropriate level of vision and stamina, caused by the physical impairments recorded above, made him unfit to perform the duties required of a CPT in his military occupational specialty (MOS) of a chemical officer. The PEB rated his disability level at 30 percent at the time, but determined his condition was of such a nature that evaluation of a permanent degree of severity was not possible at the time. Therefore, he was to be placed on the Temporary Disable Retired List (TDRL). On 5 August 1993, the applicant did not concur with the PEB's findings and recommendation and demanded a formal hearing with personal appearance and regularly appointed counsel to represent him.
7. An Optional Form 275 (Medical Record Report), dated 10 August 1993, shows the physician who conducted the MEB rendered an addendum to the MEB which added the following three additional medical problems that were not well-documented in the applicant's medical board history and physical: lower back pain, dyspepsia (ulcer disease), and chronic migraine headaches or mixed migraine and tension headaches. Of these additional conditions, the physician opined that migraine headaches were potentially boardable problems if manifested by frequent incapacitating attacks. However, in reviewing the applicant's records, he had approximately five or six episodes per year.
8. A memorandum from the recorder for the U.S. Army PEB, Madigan Army Medical Center (MAMC), Tacoma, WA, dated 11 August 1993, informed the applicant that he was scheduled to appear for a formal hearing before the PEB and provided him the names of his appointed military counsel who would assist him in preparing and presenting his case before the PEB.
9. A memorandum rendered by the applicant on 14 September 1993 shows he requested the PEB to consider the previously mentioned addendum to his MEB and to include his additional medical conditions when making a determination. He stated that in addition to the addendum, he would provide letters from witnesses, a counseling statement, a list of his prescribed medications, a list of his recurring problems, a list of hazardous materials to which he had been exposed, and a copy of his inpatient medical records.
10. A DA Form 199 shows a PEB was convened at Fort Lewis, WA on 21 September 1993 to reconsider his case based on an informal appeal. Therefore, the DA Form 199, dated 3 August 1983 was thereby superseded and replaced by this DA Form 199. This form shows:
a. After careful consideration of the applicant's MEB documents, MEB addendum, and narrative summary, the PEB determined the applicant had probable multiple sclerosis, with right hemiparesis, elevated IgG levels, vision problems, and normal gait. The PEB opined that his condition was not stable. His condition was not the result of intentional misconduct, willful neglect or unauthorized absence; it was incurred or aggravated while entitled to basic pay; it was incurred or aggravated in the ILOD in the time of national emergency or after 14 September 1978; and his condition was the proximate result of performing duty. As a result, the PEB recommended a disability rating of 30 percent for this condition.
b. After careful consideration of the applicant's MEB addendum, the PEB determined the applicant had chronic low back pain and spondyiolytic spondyloliathesis, grade I, with characteristic pain on motion and mild limitation of motion. The PEB opined that this condition was not the result of intentional misconduct, willful neglect or unauthorized absence; it was incurred or aggravated while entitled to basic pay; it was incurred or aggravated in the ILOD in the time of national emergency or after 14 September 1978; and his condition was the proximate result of performing duty. As a result, the PEB recommended a disability rating of 10 percent for this condition. His conditions of dyspepsia and chronic headaches listed on the MEB addendum were found to be neither unfitting nor ratable.
c. The PEB determined the applicant's functional limitations in maintaining the appropriate level of vision and stamina, caused by the physical impairments recorded above, made him unfit to perform the duties required of a CPT in his MOS of a chemical officer. The PEB rated his combined disability level at 37 percent which was rounded up to 40 percent at the time, but determined his condition was of such a nature that evaluation of a permanent degree of severity was not possible at the time. Therefore, the PEB found the applicant to be physically unfit, recommended a combined rating of 40 percent, and that he be placed on the TDRL with reexamination on 1 August 1994. On 22 September 1993, the applicant did not concur with the PEB's findings and recommendation and submitted a written appeal.
11. In his appeal memorandum, dated 22 September 1993, the applicant disputed the findings and recommendations of the PEB conducted on 3 August and 21 September 1993 and stated that he disagreed with the current disability rating of 40 percent. He stated he had done some research based on disability percentages awarded to other personnel who had the same conditions. He contended that his conditions should have been rated as follows and when combined they exceed 100 percent disability and he cannot figure out why the PEB did not rate his conditions equally:
* right hemi paralysis from probable multiple sclerosis, 30 percent
* migraine headaches, 30 percent
* ulcer disease, 20 percent
* chronic lower back pain, 20 percent
* deficiency of thyroid gland, 10 percent
12. A U.S. Army PEB, MAMC, memorandum, dated 24 September 1993, shows the applicant was informed that the PEB had received his appeal for a second reconsideration of his informal hearing in which he did not concur with the findings and recommendations of the hearing and his informal reconsideration. It was noted that the applicant presented no new evidence to the PEB. His statement was carefully considered and his case reviewed. As a result, the board adhered to the findings and recommendations of the informal hearing and informal reconsideration. It was noted that in the applicant's appeal he requested a disability rating for migraine headaches and ulcer disease. According to the addendum to his MEB, the ulcer disease could be treated medically and was therefore not unfitting. The migraine headaches did not occur frequently enough to be ratable. He also requested a disability rating for a deficiency of the thyroid gland. Due to the fact that neither his MEB nor the addendum included a diagnosis for this condition and therefore, it could not be considered by that board. The board believed that the applicant's case had been properly evaluated in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and current U.S. Army Physical Disability Agency (USAPDA) policies. The applicant was advised that his case, including his appeal for reconsideration, was being forwarded to the USAPDA located in Washington, DC, for further processing, unless he requested a formal hearing. Although his case was being forwarded, any additional evidence would be reviewed by them and if warranted, reconsideration of the present findings would be made.
13. A USAPDA, Washington, DC, memorandum, dated 22 October 1993, shows the applicant's case was returned to the PEB, MAMC for reconsideration. This agency in its review of the case questioned the basis for determining the applicant to be unfit. Physical examination was essentially normal. There was no vision abnormality on testing. There was no evidence of neurological motor impairment. The applicant's symptoms were not supported by physical findings. Probable multiple sclerosis is not always unfitting. Upon completion of the above action, all documents and any new proceedings were to be returned to this office for further processing, if appropriate.
14. A DA Form 199 shows a PEB was convened at Fort Lewis, WA on 29 October 1993 to reconsider his case based on review by the USAPDA. Therefore, the DA Form 199, dated 21 September 1993 was thereby superseded and replaced by this DA Form 199. This form shows that following an informal review and reconsideration of the applicant's records, the PEB determined there was insufficient evidence that he had physical impairments that precluded the satisfactory performance of duty by a Soldier in his grade and MOS. Accordingly, he was found fit for duty under the provisions of paragraph 3-1 of Army Regulation 635-40 and recommended that he be returned to duty as fit without a disability rating for any of his conditions. On 9 November 1993, the applicant did not concur with the PEB's findings and recommendation and demanded a formal hearing with personal appearance and indicated that he would have counsel of his choice to represent him at no expense to the government. However, on 17 November 1993, he rendered a memorandum wherein he stated that after considering his last appeal decision, he decided to use the regularly appointed counsel instead of civilian counsel.
15. A USAPEB, MAMC, Tacoma, WA, letter, dated 10 November 1993, informed the applicant that he was scheduled to appear for a formal hearing before the PEB on 19 January 1994 and provided him the name of his appointed military counsel who would assist him in preparing and presenting his case before the PEB.
16. A DA Form 199 shows a formal PEB was convened at Fort Lewis, WA on 19 January 1994 to reconsider his case based his appeal. This form shows that following a formal review of the applicant's records and four letters that he provided, the PEB determined there was insufficient evidence that he had physical impairments that precluded the satisfactory performance of duty by a Soldier in his grade and MOS. Accordingly, the PEB found him fit for duty under the provisions of paragraph 3-1 of Army Regulation 635-40 and recommended that he be returned to duty as fit without a disability rating for any of his conditions. It was noted that one member of the board believed that the severity of the applicant's headaches were unfitting for continued duty, in that they impacted significantly on the performance of the duties expected of a CPT Chemical Training Officer. On 31 January 1994, the applicant did not concur with the PEB's findings and recommendation. On 1 February 1994, the applicant was advised that his case, including his appeal for reconsideration, was being forwarded to the USAPDA located in Washington, DC, for further processing. Although his case was being forwarded, any additional evidence would be reviewed by them and if warranted, reconsideration of the present findings would be made. On 14 March 1994, the findings and recommendations of the PEB were approved and by order of the Secretary of the Army he was determined to be fit to perform the duties of his office, grade, rank and MOS in accordance with physical profile and assignment limitations.
17. A DA Form 3349, dated 18 April 1994, which shows he was assigned a permanent level 2 (P2) physical limitations profile due to chronic low back pain that restricted him from doing situps and carrying a backpack in excess of 20 pounds.
18. A DD Form 3947, dated 25 April 1994, shows that after consideration of clinical records, laboratory findings, and physical examination:
a. An MEB found that the applicant had the following medical conditions/defects which were incurred while entitled to base pay, did not exist prior to service, and were permanently aggravated by service:
* Severe recurrent migraine headaches, originating in 1986-87
* Right hemiparesis, originating in 1993
* Probable multiple sclerosis, originating in 1993
b. The applicant's group commander rendered a memorandum wherein he stated that the applicant had not been able to fully perform the responsibilities of his job position since January 1993. As a result of his physical condition, the applicant had not been able to drive for extended periods or to travel extensively without becoming ill. Consequently, he had been unable to provide assistance to most of the units for which he was responsible. Because of his illness, the applicant had been relegated to performing administrative duties and providing telephonic assistance. On several occasions, the applicant had attempted to visit units and become ill. On one occasion, he became so ill that two other individuals had to pick him up. The commander opined that the applicant would have difficulty performing the duties of any job a chemical officer of his rank would be expected to normally perform if his physical condition did not improve.
c. The MEB recommended the applicant's condition be considered by a PEB.
d. The applicant agreed with the board's findings and recommendation and indicated that he did not desire to continue active duty under the provisions of Army Regulation 635-40.
19. A DA Form 3349, dated 1 May 1994, shows the applicant was issued a permanent level 3 (P3) profile based upon a diagnosis of probable multiple sclerosis and severe recurrent migraine headaches in addition to his P2 profile for chronic lower back pain. The profile restricted him from performing physical training and required him to be assigned close to a medical facility.
20. The applicant's DA Form 67-8 (Officer Evaluation Report (OER)) rendered for the period of 7 June 1993 through 20 May 1994 indicated that he passed the Army Physical Fitness Test (APFT) in April 1994, he always exceeded requirements, he should be promoted ahead of his peers and makes no reference to him having a medical condition that limited his performance in any way.
21. A DA Form 199 shows a PEB was convened at Fort Lewis, WA on 25 May 1994. This form shows that following a review of the applicant's records, the PEB determined there was insufficient evidence that he had physical impairments that precluded the satisfactory performance of duty by a Soldier in his grade and MOS. Accordingly, the PEB found him fit for duty under the provisions of paragraph 3-1 of Army Regulation 635-40 and recommended that he be returned to duty as fit without a disability rating for any of his conditions. On 1 June 1994, the applicant did not concur with the PEB's findings, but waived a formal hearing. On 9 June 1994, the findings and recommendations of the PEB were approved and by order of the Secretary of the Army he was determined to be fit to perform the duties of his office, grade, rank and MOS in accordance with physical profile and assignment limitations.
22. The applicant submitted a request for voluntary separation under the provisions of the Officer Voluntary Separation Incentive (VSI) Program with the understanding that he would incur a 28-year service obligation in the USAR Control Group (Reinforcement) in return of receiving a $14,051.52 VSI payment annually for 28 years. His request was approved with a separation date of 29 September 1994.
23. U.S. Army Engineer Center and Fort Leonard Wood, MO, Orders 168-351, dated 17 June 1994, reassigned the applicant to the U.S. Army Transition Point for transition processing. After processing, he was to be REFRAD not by reason of physical disability, and assigned to the USAR Control Group (Reinforcement).
The "Additional Instructions" portion of these orders state, in part, that Soldiers who receive VSI based on service in the Armed Forces, and subsequently qualify under Title 10 U.S. Code or Title 14 U.S. Code for retired or retainer pay shall have deducted an amount equal to the total amount of VSI pay not previously recouped. This amount will be recouped from each payment of retired or retainer pay until the amount deducted is equal to the total amount of VSI received. The applicant was separated under the provisions of VSI.
24. The applicant's record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he entered active duty on 29 August 1983. On 29 September 1994, he was honorably REFRAD and transferred to the USAR Control Group (Reinforcement) under the provisions of the Early Release Program - VSI. This form shows his Reserve obligation termination date as 21 September 2022 and that he would receive an annual VSI payment in the amount of $14,051.52 for 28 years.
25. On 31 July 1994, the applicant was promoted as a Reserve commissioned officer of the Army to the rank/pay grade of major (MAJ)/O-4.
26. A Standard Form 88 (Report of Medical Examination) shows the applicant underwent a physical medical examination on 3 March 1998 for the purpose of determining whether he was medically qualified to enter the Active Guard/Reserve (AGR) program. This document indicates that his only "abnormality" was "identifying body marks, scars, tattoos." His physical profile indicates that he had a P2 profile for the vision category. Item 42 (Notes and Significant or Interval History) and item 43 (Summary of Defects and Diagnoses) are blank. As a result, he was determined to be medically qualified for retention.
27. The applicant's OERs for the period 3 April 1997 through 1 September 1999 show that he passed the APFT in August 1997 and April 1999. The OERs are void of any indication that he had a medical condition that impaired his ability to perform his duties and responsibilities. The Rater's Comments portion of his OER for the period ending April 1999 show the applicant elected to transfer to the Individual Ready Reserve so he could focus more attention on his civilian job.
28. The applicant was considered, but not selected for promotion in 2000 and 2001.
29. USAR Personnel Command, St. Louis, MO, Orders M-06-200568, dated 17 June 2002, show the applicant was ordered to active duty in support of Operation Enduring Freedom for a period not to exceed 365 days with a reporting date of 8 July 2002.
30. On 30 May 2002, he underwent a physical medical and dental examination for the purpose of determining if he was fit for retention. His past history of migraine headaches and spondylitis and the fact that they were controlled by prescription drugs was noted. It was also noted that he had no significant interval medical history since his active duty separation in 1994 and he had no documented limitations for profiling at the time. As a result, he was determined to be physically fit for continued service.
31. Headquarters, U.S. Infantry Center, Fort Benning, GA, Orders 350-2245, dated 16 December 2002, show the applicant was REFRAD, not by reason of disability, and assigned to the USAR Control Group (Individual Ready Reserve (IRR)) effective 22 December 2002. His DD Form 214 for this period shows he was honorably REFRAD accordingly upon completion of required service.
32. The applicant was considered, but not selected for promotion in 2001 and 2002.
33. U.S. Army Human Resources Command, Orders C-10-324896, dated 22 October 2003, show the applicant was released from the USAR Control Group (Reinforcement) and assigned to the Retired Reserve, effective 24 December 2002, as a result of non-selection for promotion.
34. The applicant provides the following documents extracted from his VA medical records:
a. an 8-page Neuropsychology Consult, dated 12 January 2011, which indicates, in part, that he has a history of probable multiple sclerosis which was first documented in the 1990s, but he had never been formally diagnosed. He was referred by his primary care physician for a neuropsychological evaluation due to patient complains of memory problems and to characterize his current cognitive functioning. Information from this report was acquired from medical records and a clinical interview with the patient. The Pertinent Medical History portion of this document shows the applicant reported two instances in which he fell, hit his head, and lost consciousness while stationed in Korea (possibly in the 1970s). The first occurred when he slipped on ice while walking down a trail and lost consciousness (duration unknown). His next reported memory is waking up in the hospital soon after. Approximately 1 year later, he injured himself diving for a ball while playing volleyball and reportedly lost consciousness (duration unknown). His first memory after the accident was getting into a car to go to a clinic. The applicant did not note any residual cognitive difficulties after the falls. He had been suspected to have multiple sclerosis for many years, hat had never been treated with disease modifying agents. Per his medical record, the applicant first experienced intermittent loss of vision in his left eye and double vision for approximately 1 week in 1986 or 1987. He reportedly had a work up for multiple sclerosis at a non-VA hospital in April 1994 in which lumbar puncture was negative for oligoclonal bands, but a slight increase in IgG was noted. The applicant was seen multiple times by the neurology service at the San Juan VA Hospital from 2000 to 2009. It was noted that multiple sclerosis was highly suspected, but that a lumbar puncture was needed to support the diagnosis. The applicant has been followed by the neurology service at the Baltimore VA Hospital since September 2010 and a diagnosis of possible multiple sclerosis was noted, with the plan to treat symptomatically and follow up. As a result, it was recommended that the applicant continue care at the San Juan VA Medical Center (VAMC) after moving to Puerto Rico where he should continue meeting with a neurologist, be referred to a health psychologist, and participate in support groups with others who have similar physical and/or cognitive symptoms.
b. page 1 of a 3-page Neurology Note, dated 4 February 2011, which indicates, in part, the applicant has a history of hypothyroidism, low back pain, chronic headaches, and a possible diagnosis of multiple sclerosis, who was being treated at the multiple sclerosis clinic symptomatically for headaches and muscle pain, but no disease modifying drugs. His presumptive diagnosis of multiple sclerosis was based on Magnetic Resonance Imaging of his brain from the San Juan VAMC done in 2007. It was noted that he continued to complain of daily headaches for the past 1.5 months consistently throughout the day which were near disabling. His meds at the time helped alleviate headache symptoms, but the pain still occurred daily. He complained that weakness and tiredness had worsened over the past 2 months and that symptoms of clumsiness had been progressing since their onset 15 years ago. He indicated a desire for new medication for headaches.
35. The applicant achieved age 60 on 27 August 2012 and became eligible for receipt of Retired pay. If he elected to receive retired pay, it would serve as the catalyst for recoupment of any VSI payments he had received.
36. Army Regulation 635-40 establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. 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. This regulation also states the following:
a. Paragraph 3-1 provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.
b. Paragraph 3-2b(2) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.
c. Paragraph 3-2b(2)(a) and 3-2b(2)(b) state that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.
d. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.
37. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination:
* significantly limit or interfere with the Soldier's performance of duties
* may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individuals were to remain in the military service
38. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.
39. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for correction of his record to show he was determined to be unfit by the PDES and discharged/retired by reason of physical disability has been carefully considered.
2. The purpose of the PDES is to maintain an effective and fit military organization with the maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the Army and the Soldier are protected.
3. As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system. Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation process beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.
4. Evidence shows that in 1993 a local MEB determined that he had "probable multiple sclerosis" and that it was of such severity that it warranted his entry into the PDES. His case was referred to a local PEB that opined that this condition rendered him unfit to perform the duties required of a CPT in his MOS and recommended that he be assigned a disability rating of 30 percent and placed on the TDRL until his condition was stable enough to assign a permanent disability rating. The applicant did not concur and demanded a formal hearing with personal appearance.
5. Prior to the convening of his formal PEB, the applicant's physician rendered an addendum to his previous MEB which resulted in the condition of chronic low back pain with a disability rating of 10 percent being added for consideration by the formal PEB. As a result, the local informal PEB reconsidered his case and assigned him a combined disability rating of 40 percent for the two conditions.
6. The USAPDA reviewed the applicant's PEB proceedings and returned them for reconsideration. The basis for this action was the fact that the USAPDA questioned the basis for determining the applicant to be unfit because his physical examination was essentially normal. There was no visual abnormality on testing and there was no evidence of neurological motor impairment. Additionally, his symptoms were not supported by physical findings. And finally, a diagnosis of probable multiple sclerosis was not always unfitting.
7. The applicant appeared before a formal local PEB for reconsideration of his case and was found to be fit for duty. He appealed the findings of the formal PEB, but the findings of the PEB were approved. As a result, he was found to be physically fit to perform the duties of his grade, rank, and MOS with physical profile and assignment limitations.
8. The applicant returned to duty and shortly thereafter, on 25 April 1994, an MEB resulted in him being assigned permanent physical profiles for: probable multiple sclerosis, migraine headaches, and chronic lower back pain. The MEB also referred him to a PEB for further consideration.
9. The applicant's OER for the period of 7 June 1993 through 20 May 1994 indicated that he passed the APFT in April 1994, he always exceeded requirements, he should be promoted ahead of his peers and makes no reference to him having a medical condition that limited his performance in any way.
10. A local PEB convened on 25 May 1994 and determined that a review of his records provided insufficient evidence that the applicant had physical impairments that precluded the satisfactory performance of duty by a Soldier of his grade and MOS. Accordingly, he was found to be fit for duty. He did not concur with the findings and recommendations of the PEB, but waived a formal hearing and elected not to submit an appeal. As a result, on 9 June 1994, he was found to be physically fit to perform the duties of his grade, rank, and MOS with physical profile and assignment limitations.
11. The applicant submitted a request for voluntary separation under the provisions of the Officer VSI Program with the understanding that he would incur a 28-year service obligation in the USAR Control Group (Reinforcement) in return of receiving a $14,051.52 VSI payment annually for 28 years. On 29 September 1994, he was REFRAD not by reason of physical disability, and assigned to the USAR Control Group (Reinforcement) with the understanding that should he subsequently qualify for retired pay, the total amount VSI pay received would be recouped from each payment of retired pay until the amount deducted is equal to the total amount of VSI received.
12. Upon his REFRAD, the applicant was transferred to the USAR and continued to serve. He was promoted to MAJ and participated in the AGR program. His OERs show that he continued to pass the APFT and made no reference to any impairment of his job performance as a result of any type of medical condition. His medical examination conducted for entrance into the AGR program on 3 March 1998 indicated that he was medically qualified for retention
and did not list physical or assignment limitations for either possible multiple sclerosis or lower back pain. Likewise, his medical examination conducted for retention in the USAR on 30 May 2002 indicated that he was medically qualified for retention and did not list physical or assignment limitations for either possible multiple sclerosis or lower back pain.
13. Evidence shows the applicant was considered but not selected for promotion on at least four occasions which ultimately resulted in him being reassigned from the USAR Control Group (Reinforcement) to the Retired Reserve effective 24 December 2002.
14. The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of a physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform based on the Soldiers office, grade, rank, or rating.
15. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. The applicant appears to have been physically and medically fit at the time of his REFRAD under the provisions of the VSI program in September 1994, at the time of his entry into the AGR program in 1998, and at the time of his reassignment to the Retired Reserve in December 2002.
16. In view of the facts that the applicant continued to serve in the USAR, was promoted, and served until he was ultimately eligible to retire support the presumption of fitness. The applicant has not shown error, injustice, or inequity for the relief he requests. Therefore, there is insufficient evidence to grant 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) AR20140015199
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ABCMR Record of Proceedings (cont) AR20140015199
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