IN THE CASE OF:  	  

		BOARD DATE:  4 June 2015	  

		DOCKET NUMBER:  AR20140015509 


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, a physical disability retirement.

2.  The applicant states, in effect, the only reason he was not retired due to a disability is The Surgeon General (TSG) of the Army stated he was not qualified to be a medical officer; therefore, the Physical Evaluation Board’s (PEB) decision was not appropriate.  He explains: 

The PEB denied medical retirement on the sole basis of,"…a medical officer in any grade shall not be determined unfit because of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and experience" per AR 635-40 paragraph 3-13.  The Surgeon General of the Army stated MAJ (applicant) “does not meet the requirements for assessment into any component of the Army Medical Department based on the directive from the Office of the Assistant Secretary of defense, 9 April 1998….”  Based in this statement I could no longer be expected to perform satisfactorily as a Medical Corps officer or any other specialty in Army Medicine on the date of my PEB and should have been medically retired.  The U.S. Army Physical Disability Agency (USAPDA) letter of 14 April 2009 failed to understand I was no longer a Medical Corps officer as confirmed by the TSG letter which referenced back to a 1998 policy change.  Based on “qualifications" of a Medical Corps officer the sole reason cited for denying medical retirements is not valid in my case.   
3.  The applicant provides – 
 
* U.S. Army Physical Disability Agency (USAPDA) memorandum, subject: Nonoccurrence/Rebuttal PEB Findings, dated 14 April 2009
* PDA memorandum, subject: Approval of PEB Action, dated 14 April 2009
* PEB memorandum, subject: Rebuttal of PEB Findings, dated 2 April 2009
* Brook Army Medical Center, Memorandum, dated 4 May 2009, for Commander, Company A, Army Medical Center, Fort Hood, TX
* DA Form 3349 (Physical Profile), dated 3 March 2009
* DA Form 5893 (Soldier's Medical Evaluation Board (MEB)/PEB Counseling Checklist)
* two DA Forms 199 (PEB Proceedings)
* DA Form 199-1 (Election of Formal PEB)
* Surgeon General's letter, dated 1 June 2011
* Texas Army National Guard discharge orders
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a Regular Army Medical Corps officer and entered an active duty status on 26 October 1998.

2.  In March 2009, an MEB referred the applicant to an informal PEB which found the applicant physically fit to perform his assigned duties.  The applicant did not concur and requested a formal hearing.

3.  On 2 April 2009, a PEB convened and cited the provisions of Department of Defense Instruction (DODI) 1332.38.E3.P3.4.2, which states a medical officer shall not be determined unfit because of physical disability if the member (officer) can be expected to perform satisfactorily in an assignment appropriate to his or her grade, qualifications, and experience.

4.  The PEB considered the applicant's rebuttal and conceded that he had physical limitations that kept him from performing all possible duties of a Soldier, including deployment, but it also noted that his command had certified that these conditions had not kept him from performing his assigned duties.  Finally, it pointed out that medical officers were treated differently than other officers and the provisions of the DODI were controlling.

5.  On 14 April 2009, the USAPDA approved the formal PEB.

6.  The applicant's final Officer Evaluation Report (OER) covered the period 16 October 2008 through 30 May 2009 and described his duties as the Chief of Staff overseeing a health clinic and physical examination center.  He was required to coordinate care between and among several different departments, laboratories, and clinics.  His rater marked his performance as "Outstanding Performance, Must Promote" and described his skill in preparing detailed Medical Evaluation Board Narratives as being a great enhancement to the care of warriors in transition.  His senior rater marked him as best qualified and described his performance as outstanding.  

7.  On 31 May 2009, the applicant was honorably separated from the Regular Army in the rank of major due to an unqualified resignation.

8.  The applicant became affiliated with the Texas Army National Guard in June 2009.

9.  A memorandum, dated 1 June 2011, from the Office of The Surgeon General (OTSG), subject:  Support NGB Discharge Action [in accordance with] [Army Regulation] 600-8-24, Paragraph 3-5 for an "unqualified resignation" for [applicant], noted the applicant had not completed his assigned residency nor had he been accepted into another residency program.  It was also noted that the Assistant Secretary of Defense had established a requirement in 1998 that medical officers must have completed a residency program before they could be accessed into any component.

10.  The applicant's 31 August 2011 NGB Form 22 shows he was honorably discharged due to unqualified resignation.

11.  DODI 1332.38 (Physical Disability Evaluation), paragraph E3.P3.4.2. states, "An officer in pay grade 0-7 or higher or a medical officer in any grade shall not be determined unfit because of a physical disability if the member can be expected to perform satisfactorily in an assignment appropriate to his or her grade, qualifications, and experience.  Thus, the inability to perform specialized duties or the fact the member has a condition which is cause for referral to a PEB is not justification for a finding of unfitness."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been found physically unfit in 2009 because he was not really serving as a Medical Corps officer.  Therefore, it was unfair to apply the special provisions of DODI 1332.38.  The fact that TSG pointed out he was not professionally qualified for accession as a Medical Corps officer proves he was unfit.
2.  The pertinent DODI does impose special consideration on the issue of physical fitness of medical officers.  This occurs because there are so many administrative type positions and activities within the medical field that a doctor can perform even though they are not physically qualified for Soldierly assignments, including deployment.  The applicant's last OER illustrates this in that he was engaged in supervision, oversight, and coordination rather than treating patients.  He was lauded by his rater and senior rater for performing these duties in an outstanding manner.

3.  He was performing his duties in an exemplary manner; clearly he was not physically unfit.  

4.  In view of the foregoing there is no basis for granting the applicant's 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)                                         AR20140015509



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ABCMR Record of Proceedings (cont)                                         AR20140015509



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