IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140015688 


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 a disability retirement through a medical evaluation board (MEB).

2.  The applicant states he was denied reenlistment due to health and time constraints.

3.  The applicant provides copies of the following:

* two DA Forms 3349 (Physical Profile)
* DA Form 705 (Army Physical Fitness Test (APFT) Scorecard)
* two DA Forms 5500 (Body Fat Content Worksheet (Male))
* DA Form 4187 (Personnel Action)
* Radiologic Examination Report
* Patient Lab Inquiry
* DD Form 2807-1 (Report of Medical History)
* DD Form 2808 (Report of Medical Examination)
* DD Form 368 (Request for Conditional Release)
* Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care) numerous copies
* letter of recommendation memorandum
* three DA Forms 4856 (Developmental Counseling Form)
* DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army (RA))
* Policy Letter #6 – Retention memorandum
* Reenlist Statement of Understanding/Option Request memorandum
* letter of appeal memorandum
* Enlisted Record Brief (ERB)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) claims benefit decision, dated 19 May 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the RA, in pay grade E-3, on 2 October 1996, for 3 years.  He was awarded military occupational specialty (MOS) 92Y (unit supply specialist).  He was promoted to pay grade E-4 on 1 June 1998.  

2.  He was honorably released from active duty on 1 October 1999 and was transferred to a Reserve unit.  He was issued a DD Form 214 crediting him with completing 3 years of active service.

3.  He enlisted in the Texas Army National Guard on 21 September 2007 for 6 years.  He held MOS 92Y.  He was discharged from the TXARNG on 22 December 2008.

4.  He enlisted in the RA in pay grade E-4 on 23 December 2008.  He was awarded MOS 42A (human resources specialist).

5.  He provided copies of the following:

   a.  A DA Form 3349, dated 11 May 2010, which shows he was assigned a permanent profile of 2 1 2 1 1 1 for right ankle pain and asthma with the limitation of no running and not to ruck march greater than 5 miles unless required for a real-world mission.  He was authorized the alternate Army Physical Fitness Test (APFT) of walking.  Item 4c (Profile Type) of the form states, "If a permanent profile with a 3 or 4 PULHES, does the Soldier meet retention standards in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness)" and does not indicate he needed an MEB or physical evaluation board (PEB).  

   b.  A DA Form 705 which shows he passed the APFT on 29 April 2011 and completed an alternate aerobic event (walking).

   c.  A DA Form 5500, dated 29 April 2011, which shows he was in compliance with Army height and weight standards.

   d.  A DA Form 3349, dated 3 September 2011, which stated he was on a permanent profile for right ankle pain and asthma and he no longer had any limitations.  He was assigned a PUHLES evaluation of "1" in all categories.

   e.  A DA Form 4187, approved by his commander on 19 October 2011, wherein he requested a conditional release from active duty to enter the U.S. Army Chaplain Corps.

   f.  A Radiology Examination Report, dated 25 October 2011, which shows he underwent a chest x-ray which showed his heart size appeared to be borderline and his lungs moderately expanded.  Post-inflammatory granulomas were noted bilaterally and were similar to a previous exam with no gross skeletal abnormality. 

   g.  A Patient Lab Inquiry, dated 25 October 2011, which shows blood was taken for testing.

   h.  A DD Form 2807-1 which shows he underwent a medical examination on 27 October 2011 for the purpose of being commissioned in the RA.  He indicated on the form he was treated for asthma in March 2010, was given an inhaler, and was currently stabilized since August 2001.  He was taken off asthma medication in September 2010.

   i.  A DD Form 2808, dated 27 October 2011, which shows he was found to be qualified for commissioning.

   j.  A DD Form 368 which shows his request for a conditional release was approved on 3 November 2011.

   k.  An SF 600, dated 15 November 2011, which shows he was seen in the Allergy Clinic and received treatment for a respiratory disorder.

   l.  A letter of recommendation memorandum, dated 28 November 2011, wherein the Rear Detachment Chaplain, U.S. Army Installation Management Command, Fort Campbell, KY, recommended the applicant for the Army Chaplaincy Program.

   m.  A DA Form 5500, dated 5 June 2012, which shows he was not in compliance with the Army standards for the Army Weight Control Program.

   n.  A DA Form 4856, dated 26 September 2012, which shows he received counseling and was removed from the Army Weight Control Program.

   o.  A Policy Letter #6 memorandum, dated 27 September 2012, wherein the company commander outlined the procedures for Soldiers seeking to reenlist.  The policy stated Soldiers must update their ERB, update their APFT, meet with their first-line supervisor and seek a recommendation for reenlistment, and meet with the company first sergeant and commander.  In addition, the Soldiers must meet with both the company and battalion retention noncommissioned officers (NCO). 
   
   p.  A Reenlistment Statement of Understanding/Option Request, dated 1 October 2012, wherein the applicant acknowledged his current reenlistment window and selected his options.  He also acknowledged that reenlistment is not an automatic approval and that he must submit the required documents to his servicing career counselor for final processing.

   q.  A DA Form 4856, dated 23 October 2012, wherein the applicant received reenlistment counseling from his first-line supervisor who recommended his reenlistment with stipulations.  The first line supervisor indicated the applicant was currently undergoing medical treatment to identify and correct his health issues, that in his MOS he could still work in a non-deployable unit, and if the medical team cleared him to stay in the Army despite his medical conditions, he could potentially be reassigned to another unit.

   r.  A DA Form 3340-R, dated 10 December 2012, wherein the applicant's company commander certified that the applicant was fully qualified, but was not recommended for further service.

   s.  A DA Form 4856, dated 10 December 2012, wherein the applicant's company commander counseled him for the purpose of reenlistment.  This form is a record of the commander's recommendation with regard to the applicant's potential for reenlistment.  He was advised that he had failed to progress following his promotion to E-4 on 23 August 2007.  His progression had been limited by deficiencies in basic Soldier skills, specifically the regular conduct of physical requirements (APFT, 4x36, 12-mile ruck march) and general military proficiency (weapons qualification and Military Professional Development Schooling).  Based on a holistic evaluation of his performance and potential, the commander did not recommend him for retention.

   t.  A letter of appeal memorandum, dated 17 December 2012, wherein the applicant appealed the recommendation not to retain him based on a holistic evaluation of his performance and potential.  The applicant stated:

		(1)  He had been a member of the 326th Engineer Battalion since 21 April 2009 as a 42A.  He immediately stepped into a position of leadership as the Assistant NCO in Charge (NCOIC) over his peers due to the transition of the NCOs within the S1 moving forward in their careers.

		(2)  In order to return to the active Army from the TXARNG, he was instructed to re-class from a 92Y to another MOS.  He chose MOS 42A since he had already received civilian training as well as worked as a civilian technician in the same discipline.  He reentered active duty on 24 December 2008, giving up the rank of sergeant in order to do so, from the TXARNG.

		(3)  While in the 326th Engineer Battalion, he became promotable by way of automatic integration on 1 June 2009.  He requested several times to have the opportunity to attend the promotion board, but was denied.  When he was granted the opportunity in November 2009, he was again denied entrance due to being on crutches.  After returning from medical leave, he maintained the basic Soldier skills which included the regular conduct of physical requirements:  APFT, 4X6, 12 mile ruck march, and weapons qualification.

		(4)  After completing a battalion lead 4X36 on 23 August 2012, he suffered a transient ischemic attack (TIA) (TIA/mini-stroke).  By direction of his primary care manager (PCM), he was placed on a 90-day profile which limited his abilities to maintain medical readiness.  Until recently, his medical readiness had never kept him from the battalion's forward elements during either of its deployments.

		(5)  During the 326th Engineer Battalion's deployment from 21 January through 8 November 2011 he was afforded the opportunity to be a part of the rear-detachment cadre in order to complete a commissioning packet for the Chaplain Candidate Program.  During that time, he encountered a hostile work environment which included racial and religious discrimination.  He requested to be retained for reenlistment due to his proficiency and ability to rebound and to adapt to any situation.

	u.  A DA Form 4187, dated 17 December 2012, wherein his request for retention was denied by his company commander as it was determined he did not meet the Army's "Whole Soldier" concept for retention.  The form stated the applicant had failed to progress to the next higher professional level following his promotion to E-4 in August 2007.  Additionally, numerous medical issues had affected his medical readiness which kept him from contributing to the battalion's forward elements during unit deployments, thus generating a concern about his capacity to serve in the Army to the fullest extent in the future.

6.  On 6 March 2013, he completed a DA Form 3340-R requesting extension of his enlistment for the convenience of the Government.  On 7 March 2013, his request to extend his current RA enlistment by 1 month was approved.  His new expiration term of service date was 9 April 2013.

7.  He was honorably released from active duty in pay grade E-4 on 9 April 2013 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, for completion of required active service, and was transferred to a Reserve unit.  He was credited with completing 4 years, 3 months, and 17 days of active service and 3 years, 2 months, and 12 days of prior active service.

8.  Orders Number 14-066-00043, issued by Headquarters, 81st Regional Support Command on 7 March 2014, honorably discharged him from the U.S. Army Reserve effective 11 April 2014.

9.  The applicant provided a copy of his VA decision letter, dated 19 May 2014, which shows he is receiving financial compensation for asthma rated at 30 percent, degenerative arthritis – right ankle rated at 10 percent, and migraine headaches rated at 30 percent.  Multiple medical conditions were not rated to include the TIA.  His overall or combined VA rating is 60 percent.

10.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge or release from active duty of enlisted personnel.  Paragraph 4-1 states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluating System (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.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several lines of duty criteria to be eligible to receive retirement or severance pay benefits.  One of the criteria is that the disability must have incurred or been aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

   a.  The PDES assessment process involves two distinct stages:  the MEB and the 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. 

   b.  Paragraph 3-1 of the regulation states the mere presence of a medical impairment does not in and of itself justifies 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.

   c.  Paragraph 3-2b (Processing for Separation or Retirement from Active Duty) states 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.  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:

		(1)  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.

		(2)  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.

12.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.

   a.  Paragraph 3-27 states asthma may be cause for referral to an MEB if it
results in repetitive hospitalizations, repetitive emergency room visits or excessive time lost from duty, requires repetitive use of oral corticosteroids to enable the Soldier to perform all military training and duties, results in inability to run outdoors at a pace that meets the standards for the timed 2-mile run despite
medications, and it prevents the Soldier from wearing a protective mask.

   b.  Paragraph 3-3 (Disposition) states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635-40.
   
13.  Title 38, United States Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  With prior active and inactive service, the applicant served in the RA from 12 December 2008 through 9 April 2013.  During this period he was assigned a permanent profile for right ankle pain and asthma with limitations.  His physical limitations were lifted in September 2011 with no requirement for entry into the PDES.

2.  A DA From 4856, dated 23 October 2012, shows he received counseling pertaining to his reenlistment.  The form indicated he was currently undergoing medical treatment to identify and correct his health issues, that in his MOS he could still work in a non-deployable unit, and if the medical team cleared him to stay in the Army despite his medical conditions, he could be reassigned to another unit.  

3.  On 10 December 2012, the applicant's company commander recommended the applicant not be retained for further service based on his failure to progress following his promotion to E-4 on 23 August 2007 and a holistic evaluation of his performance and potential.  He was released from active duty by reason of completion of active duty and was transferred to a Reserve unit.  

4.  A key element of the Army disability system is the Soldier’s ability to perform the duties required of his grade and military specialty.  In the applicant's case, there wasn't a single condition actively limiting his ability to perform his military duties.  There was no diagnosis of any condition(s) being disabling at the time of his separation that required entry into the PDES.  

5.  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.  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.  There is no diagnosis of any condition that failed retention standards or was found unfitting in his case.  Therefore, there was no entry in the PDES.

6.  When a Soldier is being processed for separation 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, creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that 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 or 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.  

7.  In view of the foregoing, there is insufficient evidence to support granting 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 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)                                         AR20140015688



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ABCMR Record of Proceedings (cont)                                         AR20140015688



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