IN THE CASE OF:    

		BOARD DATE:  7 May 2015	  

		DOCKET NUMBER:  AR20140015605 


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 he be given a medical evaluation board (MEB) to determine his eligibility for medical retirement. 

2.  The applicant states while he served on active duty from May 1986 to November 1992.  He was stationed with the 512th Maintenance Company in Germany.  He was issued a medical profile and he was not fit for separation in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness) and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He was not afforded the ability to go through a medical board.  His medical conditions consisted of a torn meniscus of the left knee, fracture of right hip, degenerative disc in lower back, and sciatic nerve in his right side.  He received these injuries while serving on active duty in Germany and was treated at Heidelberg Hospital and Benjamin Franklin Village Clinic.  He was injured during a training exercise and three military vehicle accidents.  His military occupational specialty (MOS) was 63B (Light Wheeled Vehicle Mechanic), which required him to travel and perform his duties as assigned.  He is now requesting that he be given an MEB in accordance with AR 635-40 to determine his eligibility for a medical retirement.  He was unaware of his rights under AR 635-40.  He received an award of Department of Veterans Affairs (VA) disability for the injuries he sustained while serving on active duty and can provide copies of his VA medical records for consideration.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 4 (Enlistment/Reenlistment Document)
* U.S. Army Reserve (USAR) discharge orders
* DA Form 2-1 (Personnel Qualification Record)
* DA Forms 3349 (Physical Profile), dated 22 February 1990 and 22 November 1989 
* Multiple Standard Forms 600 (Chronological Records of Medical Care) 

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant be given an MEB to determine his eligibility for medical retirement. 

2.  Counsel does not make a statement other than that the applicant retained legal representation and that all correspondence should be forwarded to his office. 

3.  Counsel does not provide any additional evidence. 

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's records show he enlisted in the Regular Army for 4 years on 5 March 1986.  He completed basic combat and advanced individual training and he was awarded MOS 63B. 

3.  After completion of training, he served in Germany from 14 August 1986 to on or about 2 March 1992.  He was assigned to 512th Maintenance Company, Mannheim.  

4.  While stationed in Germany, he was advanced to specialist four (SP4)/E-4 on 1 March 1988 and he executed a 3-year reenlistment in the RA.  
5.  He was honorably released from active duty on 11 August 1992 by reason of expiration of term of service.  His DD Form 214 shows he:

* completed 6 years, 5 months, and 7 days of active service
* was authorized separation pay
* was assigned Separation Code LBK and Reentry Code 3C
* was authorized Transition Assistance Management Program (TAMP) benefits  
* was authorized medical benefits through 9 December 1992 and commissary/exchange benefits through 11 August 1994

6.  He was ultimately honorably discharged from the USAR on 8 March 1994.

7.  His medical records are not available for review with this case.  However, he provides multiple documents, many of which were highlighted in yellow to emphasize certain areas: 

	a.  DA Form 3349, dated 22 November 1989, temporary with an expiration date of 22 February 1990, for left shoulder pain.  

	b.  DA Form 3349, dated 22 February 1990, temporary with an expiration date of 1 April 1990, for left shoulder pain. 

	c.  SF 600, dated 17 July 1990, that shows he was seen for chronic back pain. 

	d.  SF 600, dated 23 September 1991, that shows he was seen for stomach pain. 

	e.  SF 600, dated 14 and 25 March 1991, that shows he was seen for knee and back pain. 

	f.  SF 600, dated 20 May 1991, that shows he was seen for pain in the shoulder blade. 

	g.  SF 600, dated 16 December 1986, that shows he experienced pain to the left area. 

	h.  SF 600, dated 13 February 1987, that shows he experienced and was seen for low back pain .

	i.  Emergency Care and Treatment Record, dated 29 January 1987, that shows he was involved in a motor vehicle accident and experienced low back pain.  

	j.  Consultation sheet, dated 2 August 1989, for low back pain and/or physical therapy. 

8.  There is no indication in his military records that shows:

* he was issued a permanent physical profile 
* he was diagnosed with a medical condition that failed retention standards in accordance with AR 40-501
* he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty
* he was referred to the Army Physical Disability Evaluation System (PDES) and/or was found to have an unfitting medical condition

9.  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.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.

	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
* 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 PDES:

* when they no longer meet medical retention standards in accordance with AR 40-501
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC
	c.  The PDES assessment process involves two distinct stages: the 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.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	d.  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 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.

10.  AR 635-40 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 office, grade, rank, or rating.  It states 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.  

11.  AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0% to 100%, rising in increments of 10%.

12.  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.

13.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 5 March 1986 to 11 August 1992.  He was honorably released from active duty on 11 August 1992 by reason of completion of his required service.  He was authorized separation pay, TAMP, and medical benefits past his separation date and he was eligible to reenlist (with waiver, due to his rank). 

2.  During his military service, he appears to have been seen for pain in his shoulder or low back and on two occasions he was issued temporary profiles.  However:

	a.  Nowhere in his records does it show he was issued a permanent physical profile that prevented him from performing the duties required of his MOS or that he was diagnosed with a medical condition that failed retention standards in accordance with AR 40-501, or that he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty, or that he was referred to the PDES and/or was found to have an unfitting medical condition.

	b.  He appears to confuse illness with unfitness.  When a Soldier is ill or injured, they are not automatically "medically retired."  They undergo a medical examination that determines the effect of such illness on the Soldier's ability to perform the duties of their grade and military specialty.  This is augmented with the commander's performance statement.  The Soldier then receives and exhausts maximum treatment, care, and evaluation before they enter the disability system, if applicable.  Here, there is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention or separation.

	c.  The mere presence of an 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 that service member can be medically separated or retired.

	d.  Furthermore, even if he suffered an injury that did not manifest until years later, a key element of the Army disability system is the existence of a disabling condition at the time of separation.  Again, the Army must find a member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that member can be medically separated or retired.  In view of the foregoing evidence, he is not entitled to the requested relief.

	e.  The applicant was not only fully qualified for and reenlisted in July 1989, he also continued to serve through August 1992 with no functional limitations.  His service was not interrupted by any medical conditions.  It was interrupted by his desire to separate and not to reenlist, despite the ability to do so (albeit with a rank waiver).  

	f.  Additionally, he was authorized benefits beyond his separation date.  This renders his argument regarding not taking a separation physical moot.  Even if his contention regarding the separation physical could be substantiated, he provides no explanation why he did not take one, given his extended medical benefits. 

3.  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.  Entry into the PDES requires an illness or an injury that may fail retention standards.  This is not the case here.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20140015605



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ABCMR Record of Proceedings (cont)                                         AR20140015605



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