IN THE CASE OF:  	  

		BOARD DATE:  7 April 2015	  

		DOCKET NUMBER:  AR20140015513 


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 reconsideration of his earlier request for medical retirement. 

2.  The applicant states:

* he previously applied to this Board to be medically retired from the Army at a 100 percent disability but the Board denied his request
* according to the hospital he is in, his bipolar and schizophrenic disorders are injuries that he sustained while on active duty 
* he wants the Board to contact his doctor and get the medical records from the person who is handling his case 
* he is sick and wants this Board to be patient with him; he is in the process of getting an attorney and the Department of Veterans Affairs (VA) medical records (from various VA facilities)
* he has been hospitalized three times for mental conditions that he believes were related to his military service
* his conditions are bipolar disorder, schizophrenia, psychosis, post-traumatic stress disorder, anxiety disorder, and mood disorder
* he also has a back injury, leg injury, nerve injury, breathing injury, sleep apnea, migraine, and many others; he can't stop losing his hair or biting his nails
* the VA has rated him at 30 percent and it is going to increase it to 100 percent because of the severity of his injuries 
* they say all his injuries were caused by his military service and the Board should contact his mother who has a power of attorney from him
* he is requesting back pay to the date he got out of the military on 8 March 2002 and a monthly check for the rest of his life 
* the military gave him a physical exam when he entered the service and he passed and then while in the military, he was diagnosed with all these conditions 

3.  The applicant provides his previous application and allied documents.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130008237, dated 11 February 2014.

2.  The applicant provides a new argument that was not previously addressed and warrants consideration by the Board. 

3.  The applicant's records show he enlisted in the Regular Army on 13 March 1997 and he held military occupational specialty 92G (Food Service Specialist). He reenlisted on 9 March 2000. 

4.  He was assigned to Fort Benning, GA, and he was promoted to sergeant/E-5 on 12 April 2001.  He was placed on assignment to Korea but declined continued service to meet the service remaining requirements. 

5.  He was honorably released from active duty on 8 March 2002 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to meet his military service obligation.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 11 months, and 26 days of active service. 

6.  Following his release from active duty, he was assigned to the 815th Quartermaster Company, a troop program unit (TPU) of the USAR. 

7.  During March 2003, he received a change of rater Noncommissioned Officer Evaluation Report (NCOER) covering the rating period April 2002 through February 2003.  This NCOER shows: 

* his rater rated his NCO values/responsibilities as "Excellence" or "Success" and his overall potential as "Among the Best"
* he passed his Army Physical Fitness Test (APFT) and met the height and weight requirements 
* his rater commented that the applicant's APFT score was within the top 5% of the company and that he completed all assigned tasks (competence) ahead of schedule
* his senior rater rated his overall performance and potential as "Successful/Superior" 

8.  On 19 May 2003, the 81st Regional Support Command published orders promoting him to staff sergeant (SSG)/E-6, effective 19 May 2003.  He was fully qualified for promotion   

9.  He entered active duty as a member of the 352nd Corps Support Battalion (USAR TPU) on 15 March 2003 and he was honorably released from active duty on 6 June 2003 by reason of completion of his required active service.  

10.  During March 2004, he received an annual NCOER covering the rating period March 2003 through February 2004.  This NCOER shows: 

* his rater rated his NCO values/responsibilities as "Success" and his overall potential as "Fully Capable"
* he passed his APFT and met the height and weight requirements 
* his rater commented that the applicant displayed a high degree of technical competence in the performance of his job assignment 
* his senior rater rated his overall performance and potential as "Successful/Superior" 

10.  During November 2004, he received a change of rater NCOER covering the rating period March 2003 through October 2004.  This NCOER shows: 

* his rater rated his NCO values/responsibilities as "Success" and his overall potential as "Fully Capable"
* he passed his APFT and met the height and weight requirements 
* his rater commented that the applicant had exceptional technical knowledge and his senior rater stated he performed all assignments in a manner consistent with a Soldier of a higher rank
* his senior rater rated his overall performance and potential as "Successful/Superior" 

11.  On 20 October 2004, he transferred to the 411th Quartermaster Platoon, another TPU of the USAR. 

12.  On 4 January 2006, having been found fully qualified, he executed a 6-year reenlistment in the USAR and on 12 September 2006, he was reassigned to another TPU, the 2145th Garrison Support Unit, Fort Benning, GA.
13.  On 5 September 2007, he underwent a retention physical at Concentra Medical Center, Columbus, GA.  The physician noted the applicant had a chronic sinus problem and found him qualified for service pending review by his command.  

14.  On 26 November 2007, he was issue a permanent physical profile for headaches/sinus condition.  The Assistant Command Surgeon indicated the applicant:

* did not meet medical retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness)
* he had migraine headaches, 2 to 3 days per week requiring narcotic intervention 
* he had deviated septum, chronic sinusitis with bilateral turbinate hypertrophy per ENT clinic evaluation in July 2007 

15.  The Command Surgeon reviewed the applicant's medical condition and determined he did not meet retention standards.  As a result, the applicant was honorably discharged from the USAR, effective 13 September 2007. 

16.  His AHRC Form 249-E (Chronological Statement of Retirement Points) shows he completed 10 years, 9 months, and 5 days of qualifying service toward non-regular retirement. 

17.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  

	a.  The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.

	b.  Soldiers are referred to the physical disability evaluation system (PDES) when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board; or receive a permanent medical profile and are referred by an MOS Medical Retention Board; or are command-referred for a fitness-for-duty medical examination; or are referred by the Commander, U.S. Army Human Resources Command.

	c.  The PDES assessment process involves two distinct stages - the medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  

	d.  The mere presence of 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 physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 or her office, grade, rank, or rating.  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.  Paragraph 3-4 states under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following Line of Duty (LD) criteria to be eligible to receive retirement and severance pay benefits.

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training  (IDT).

	b.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

19.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that Reserve Component (RC) Soldiers with nonduty-related (NDR) medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  The process is designed to give the Soldier with NDR impairment the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits.

20.  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%.

21.  Army Regulation 135-178 (USAR Enlisted Administrative Separation) in effect at the time, established the policies, standard, and procedures governing the administrative separation of enlisted Soldiers from the RC.  Chapter 3 states discharge will be accomplished when it has been determined that an enlisted member is no longer qualified for retention by reason of medical unfitness unless the member requests and is granted a waiver or is eligible for transfer to the Retired Reserve.  RC members who do not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training will be processed as specified in Army Regulation 635-40.  

DISCUSSION AND CONCLUSIONS:

1.  Most of the applicant's service medical records are not available for review with this case.  However, based on the available documents he provided, it appears he sustained certain non-duty related illnesses, including migraine and sinusitis that were deemed by the Command Surgeon to have failed retention standards and necessitated his discharge from the USAR.

2.  If the applicant contends he should have been medically retired, he has not provided sufficient evidence to support such contention.  

   a.  He previously provided a substantial volume of medical documents that show a variety of maladies that occurred after his discharge in 2007 but none shows he was unable to perform the duties required of his grade or specialty.  

	b.  The key issue here is the presumption of fitness.  Was the applicant able to perform the duties required of his grade and/or military specialty?  He claims he should have been medically retired as of March 2002.  Yet, since that date, he was promoted to E-6, reenlisted for 6-years, mobilized on active duty, and received multiple NCOERs that clearly show he was able to perform the duties required of his MOS, he passed the APFT, and he met the height and weight standards.  No profile was mentioned anywhere on his NCOERs.  

	c.  Referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  There is no evidence to show she had:

* a permanent physical profile that shows an unfitting condition that occurred while on active duty
* a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade
* a medical examination that warranted his entry into the PDES

   d.  If and when identified, diagnosed, evaluated, and rated, 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.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  His evaluation reports shows he was fully capable of performing his duties.

	e.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

	f.  The VA does not have the authority to determine military fitness for military personnel.  The agency works within its own laws and rules to establish eligibility for service-connected disability.  

4.  There does not appear to be an error or an injustice in his case.  In view of the circumstances in this case, there is insufficient evidence to grant him relief.

5.  The applicant requested this Board contact his mother and the VA.  It is noted that the ABCMR considers individual applications that are properly brought before it.  The Board decides cases on the evidence of record.  It is not an investigative body.  The Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.






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 to amend the decision of the ABCMR set forth in Docket Number AR20130008237, dated 11 February 2014.




      ___________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)                                         AR20140015513



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ABCMR Record of Proceedings (cont)                                         AR20140015513



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