IN THE CASE OF:	   

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20140017372 


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, his transfer to the Retired Reserve be voided and that he be referred to a medical evaluation board (MEB) and physical evaluation (PEB) and processed through the Integrated Disability Evaluation System (IDES) (formerly known as the Physical Disability Evaluation System (PDES)).

2.  The applicant states:

	a.  In 2012, he was pending a medical review board to determine if he would be receiving a medical retirement for being diagnosed with thyroid cancer and heart disease.  Before he was able to appear before the medical board, he received a letter informing him that he was being made to retire involuntarily.  He strongly believes that without a doubt and based on his medical situation, the board would have granted him a medical retirement.  Because he was unable to appear before a medical board, he was placed in a "grey area" retirement status. His commander and the unit physician's assistant (PA) found him unfit for deployment and assured him he would be medically retired.

	b.  While he was pending a military medical review board, his unit was deployed to Iraq.  The Rear Detachment Noncommissioned Officer (NCO) was unable to assist him and he did not know or have anyone to act on his behalf.  After a few years of research, he finally received some assistance through the Disabled American Veterans, who directed him to this Board.

	c.  The Board should grant him a medical retirement because it will give him access to military medical installations to treat his conditions that will most likely reoccur.  He strongly believes that he will not reach age 60 before he succumbs to his medical condition.  Lastly, but most importantly, he served his country proudly.

3.  The applicant provides his service medical records.  

CONSIDERATION OF EVIDENCE:

1.  The applicant served on active duty in the Regular Army from 10 July 1990 to 20 September 1999.  He enlisted in the Army National Guard (ARNG) on 
17 October 2000.  

2.  Medical documents, dated 13 February 2009, show he was diagnosed with coronary artery disease.

3.  A memorandum dated 2 May 2009, subject:  State Fitness for Duty Evaluation (FFDE) Findings, shows a diagnosis of coronary artery disease with stent placement and hearing loss.  The form, signed by the President of the State Medical Review Board and the State Surgeon, shows he was found fit for duty with some limitations (physical profile).

4.  A DA Form 3349 (Physical Profile), dated 7 February 2010, shows he was issued a permanent physical profile that restricted him from performing the 
2-mile run of the Army Physical Fitness Test (APFT).  The DD Form 3349 also shows he was cleared to perform the following activities:

* APFT push-ups 
* APFT sit-ups
* APFT alternate cardio-respiratory activity (2.5 mile walk)
* running at own pace and distance 
* unlimited walking, biking, and swimming 

5.  The DA Form 3349 further shows he was assigned a permanent "3" in the "P" (Physical Capacity or Stamina) category of the PULHES factors, and a permanent "2" in the "H" (Hearing and Ears) category of the PULHES factors.

6.  His medical and/or personnel records are void of a DA Form 2173 (Statement of Medical Examination and Duty Status) or a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) addressing his medical conditions.
7.  His Noncommissioned Officer Evaluation Report (NCOER) covering the period 1 December 2009 through 30 November 2010 (his last NCOER of record) shows his rater rated his overall potential for promotion and/or service in positions of greater responsibility as "fully capable." 

8.  By memorandum dated 25 April 2011, he was informed by the Commander, 278th Armored Cavalry Regiment, Knoxville, Tennessee, that his unit was initiating a separation action against him under the provisions of Army Regulation 135-178 (ARNG and Army Reserve Enlisted Administrative Separations), chapter 13 (Unsatisfactory Participation in the Ready Reserve).  The commander stated the proposed separation action was based on the applicant's non-compliance with orders and no action taken to provide current medical documentation within 30 days to process his medical issues to a specified medical board.  The commander ordered him to report to the Tennessee ARNG (TNARNG) Medical Command to have a Periodic Health Assessment (PHA) conducted. 

9.  There is no evidence in the applicant's available records that indicates he was found unfit for duty by a PHA.  

10.  He was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 1 November 2011.

11.  By memorandum dated 8 February 2012, he was informed that the 2012 Enlisted Qualitative Retention Board considered him for qualitative retention but that he was not selected.  He was also informed that Soldiers not selected for retention would be removed from unit participation and from the TNARNG.  He was further informed that his discharge and transfer to the U.S. Army Reserve (USAR) Control Group (Reinforcement or Retired Reserve) would be accomplished according to the option he selected by endorsement prior to the convening of the board.

12.  The applicant's option statement pertaining to his transfer to the USAR Control Group (Reinforcement or Retired Reserve) is not available for review.

13.  Orders Number 059-875, issued by the TNARNG on 28 February 2012, directed his discharge from the ARNG and transfer to the USAR Control Group (Retired Reserve) effective 24 March 2012.

14.  There is no evidence in the applicant's records that indicates he was found unfit to perform his military duties due to an unfitting medical condition prior to his transfer to the Retired Reserve.

15.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness.

16.  Army Regulation 40-501, chapter 7 (Physical Profiling) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.

	a.  Numerical designator "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.

	b.  Numerical designators "2" and "3" indicate an individual has a medical condition or physical defect that requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.

	c.  Numerical designator "4" indicates an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

17.  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 or her office, grade, rank, or rating.  It provides for a medical evaluation board that is 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 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.
	
	a.  Paragraph 2-1 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 2-2b(1) provides 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 or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) 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 2-2b(2) provides 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.

18.  Title 38, U.S. Code, permits the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  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 contends he should have been medically retired instead of transferred to the Retired Reserve.

2.  The evidence of record shows he was evaluated by the State FFDE and that he was found fit for duty with some limitations.  There is no evidence of record and the applicant has not provided evidence that shows he was unable to perform his normal duties due to his medical condition.  His last NCOER clearly shows he was able to perform his prescribed duties at the time.

3.  The evidence of record shows he was separated from the ARNG and transferred to the USAR Control Group (Retired Reserve) after he: 1) failed to comply with command orders; 2) failed to take action to provide current medical documentation within 30 days to process his medical issues to a specified medical board; and 3) was non-selected for qualitative retention by the 2012 Enlisted Qualitative Retention Board.

4.  The evidence confirms his transfer to the Retired Reserve was accomplished in accordance with the applicable regulatory policy.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined the individual suffers from an impairment that disqualifies him or her from further military service.  There is no evidence indicating he was physically unfit.  In addition, his medical issues did not interrupt his career because he was transferred to the Retired Reserve after obtaining the required years of service for a Reserve retirement.

6.  The applicant did not provide evidence and his records do not contain any evidence to support his contention that he should have been separated for medical reasons.  Therefore, he has failed to show that his transfer to the Retired Reserve was in error or unjust.  As a result, there is no basis for granting him a medical retirement.







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)                                         AR20140017372



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ABCMR Record of Proceedings (cont)                                         AR20140017372



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