BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140018078 


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 correction of the narrative reason for his separation from "retirement, sufficient service for retirement" to a medical discharge.  He also requests a personal hearing.

2.  The applicant states the informal physical evaluation board (PEB) suggested he was fit for duty and that he reasonably performed in his grade and military specialty despite presenting the board with a commander's statement and a mental/physical evaluation that were contrary to the board's findings.   The medical evidence is supported by his active duty physician, the Department of Veterans Affairs (VA), and the Social Security Administration (SSA).  Since his retirement, he has not been able to secure or maintain gainful employment due to his medical, mental, and physical condition. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 199 (PEB Proceedings) 
* Self-authored medical summary
* Recommendation for transfer to a Warrior Transition Unit 
* DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement) 
* DA Form 3349 (Physical Profile)
* Integrated Disability Evaluation System (IDES) Narrative Summary (NARSUM) Medical Evaluation Board (MEB)
* VA rating decisions and SSA disability letter
CONSIDERATION OF EVIDENCE:

1.  The applicant was born in April 1961. 

2.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 13 June 1986.  He was 25 years and 2 months of age at the time. 

3.  He served in a variety of assignments as a Field Artillery officer, including periods of active duty from June 1986 to July 1989 and August 1990 to August 1991.  He was promoted to major (MAJ) in the U.S. Army Reserve (USAR) effective 3 January 2000. 

4.  He entered active duty on 3 January 2000.  Additionally, on 2 February 2004 he executed an oath of office as a Regular Army Civil Affairs officer, in the rank of MAJ.  His mandatory retirement date (MRD) was established as 31 January 2013.

5.  In or around July/August 2010, he was assigned to Headquarters, 8th Army, G-9 (Civil-Military Operations Directorate), Korea.

6.  On 17 February 2012, an officer at the Yongsan Health Clinic in Korea recommended the applicant be transferred to the Warrior Transition Unit (WTU).  The officer indicated that after a comprehensive set of evaluations of his medical condition and history for a myriad of diagnoses, it was recommended that he proceed to the WTU for further evaluation and treatment that would culminate in an MEB and other necessary steps in the PDES. 

7.  On 21 May 2012, his commander submitted a DA Form 7652 to provide information to the PEB on the impact of a medical impairment on the applicant’s ability to perform duties.  The commander indicated that the applicant had been on profile and had surgery.  He had not been available for duty the past several months.  He stated:

* Applicant does not perform duties in his specialty; he cannot perform basic Soldier tasks in a field environment
* Applicant can work in a garrison environment where no lifting is required 
* His medical condition/limitations affect unit accomplishing its mission
* Retention is not recommended; his MRD is within 6 months



8.  On 21 May 2012, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found the applicant was diagnosed as having the medically unacceptable or acceptable conditions listed below.  The MEB recommended referral to a PEB.  He agreed. 

Condition
Medically Acceptable
Medically Unacceptable
1.  Cervical spine degenerative arthritis with disc disease and herniation with radiculopathy

X
2.  Lumbar spine degenerative arthritis with disc disease and herniation with radiculopathy

X
3.  Knee pain (bilateral knees degenerative arthritis

X
4.  Scar on right thumb
X

5.  Traumatic brain injury (TBI)
X

6.  Classic migraine 
X

7.  Erectile dysfunction 
X

8.  Benign prostatic hypertrophy 
X

9.  Status post umbilical hernia 
X

10.  Obstructive sleep apnea
X

11.  Bilateral cubital tunnel syndrome
X

12.  Right first metatarsophalangeal joint gout
X

13.  Bilateral breast cyst
X

14.  Bilateral temporomandibular disease 
X

15.  Bilateral astigmatism 
X

16.  Post-traumatic stress disorder (PTSD)
X

17.  Generalized anxiety disorder
X

18.  Chronic primary insomnia
X

19.  Osteoarthritis of bilateral great toes
X

20.  Status post meniscal tear to left knee
X

9.  On 15 June 2012, he was issued a permanent physical profile for neck pain (cervical spine degenerative arthritis with disc disease and herniation with radiculopathy), low back pain (lumbar spine degenerative arthritis with disc disease and herniation with radiculopathy), and knee pain (bilateral knees degenerative arthritis). 

10.  On 13 September 2012, an informal PEB convened as part of the IDES and considered the applicant's condition(s).  His DA Form 199 shows: 

	a.  The applicant was evaluated for degenerative arthritis of the cervical and lumbar spine of both knees that were stated to fail retention standards.  The 
applicant is returned to duty for the purpose of non-disability retirement.  The PDES is administered to compensate those Soldiers whose service is interrupted by a physical disability incurred or aggravated in service.

	b.  The applicant's personnel records indicated he was scheduled for separation from active duty by reason other than physical disability.  His separation date was established before his entry into the PDES and he continued to reasonably perform in his grade and military specialty.

	c.  Continued performance of duty commensurate with rank or grade until scheduled separation or retirement creates a presumption of fitness.  Therefore, based upon the evidence presented, he had not overcome the presumption of fitness.  Specifically, the available records show he entered the 12-month presumption period prior to reaching his (MRD) on or about 31 January 2012.  His medical board was dictated on or about 15 June 2012 and he satisfactorily performed the duties of his rank and military specialty. Medical records further indicated his condition was acute and grave and that there had not been a significant deterioration immediately prior or coincident with reaching the presumptive period.  The PEB found him physically "fit" and the disposition was that he was fit.

	d.  He was advised of the findings and recommendations of the PEB and received a full explanation of the findings and recommendations as well as his legal rights.  On 29 September 2012, following counseling, he concurred and waived his right to a formal hearing of his case. 

	e.  The U.S. Army Physical Disability Agency (USAPDA) reviewed and approved the findings and recommendations on behalf of the Secretary of the Army. 

11.  On 2 October 2012, Headquarters, 3rd Infantry Division, Fort Stewart, GA published Orders 276-0019 retiring him from active duty on 31 January 2013 and placing him on the Retired List in his retired grade of MAJ on 1 February 2013.

12.  His DD Form 214 shows he retired from active duty on 31 January 2013 in accordance with paragraph 6-13c (retirement at 20 years of service) of Army Regulation 600-8-24 (Officer Transfers and Discharges) by reason of sufficient service for retirement.

13.  His records contain an Officer Evaluation Report (OER) for the rating period 24 July 2011 through 2 June 2012 for his duties as Assistant Chief of Staff/Deputy G-9, assigned to Headquarters, 8th Army, Korea.  It shows: 

* he did not meet height/weight standards and he was not medically cleared to participate in the Army Weight Control Program
* his rater rated his performance as "Outstanding Performance, Must Promote" and "Best Qualified" and his senior rater rated his potential as "Center of Mass"

14.  On 8 January 2014, the VA awarded him service-connected disability compensation for multiple conditions, including PTSD, TBI, migraine, degenerative joint disease (left shoulder and right knee), tinnitus, and other conditions. 

15.  On 18 March 2014, the U.S. Army Human Resources Command approved his claim for combat-related special compensation (CRSC) for impaired hearing and PTSD. 

16.  On 6 June 2014, the SSA declared him disabled and awarded him disability benefits.

17.  DOD Instruction (DODI) 1332.38 (Disability Evaluation System), with changes, implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability; making administrative determinations for service members with service-incurred or service aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.

	a.  E3.P3.5.1 (Presumption of Fitness-Application).  Except for Service members previously determined unfit and continued in a permanent limited duty status, service members who are pending retirement at the time they are referred for physical disability evaluation enter the DES under a rebuttable presumption that they are physically fit.  The DES compensates disabilities when they cause or contribute to career termination.  Continued performance of duty until a service member is approved for length of service retirement creates a rebuttable presumption that a service member’s medical conditions have not caused career termination.

	b.  E3.P3.5.2 (Presumptive Period).  Service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs when an officer is within 12 months of mandatory retirement due to age or length of service. 

	c.  E3.P3.5.3 (Overcoming the Presumption).  The presumption of fitness rule shall be overcome when:
		(1)  E3.P3.5.3.1. Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or

		(2)  E3.P3.5.3.2. Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or 

		(3)  E3.P3.5.3.3.  The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period.  When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.

	d.  E3.P3.6.2. Preponderance of Evidence.  Findings about fitness or unfitness for Military Service shall be made on the basis of preponderance of the evidence.  Thus, if a preponderance (that is, more than 50 percent) of the evidence indicates unfitness, a finding to that effect will be made. If, on the other hand, a preponderance of the evidence indicates fitness, the Service member may not be separated or retired by reason of physical disability

18.  DODI 1332.18 (Disability Evaluation System), dated 5 August 2014, establishes policy, assigns responsibilities, and provides procedures for referral, evaluation, return to duty, separation, or retirement of Service members for disability in accordance with Title 10, U.S. Code (USC), and incorporates and cancels DODI 1332.38 and the Under Secretary of Defense for Personnel and Readiness (USD(P&R)) Memorandums.  Appendix 2 to Enclosure 3, Standards for Determining Unfitness due to Disability or Medical Disqualification, states in:  

	a.  Section 5(a) (Presumption of Fitness), the DES compensates disabilities when they cause or contribute to career termination.

		(1)  Service members who are pending retirement at the time they are referred for disability evaluation are presumed fit for military service.  Service members may overcome this presumption by presenting a preponderance of evidence that he or she is unfit for military service. The presumption of fitness may be overcome when: (a) an illness or injury occurs within the presumptive period that would prevent the Service member from performing further duty if they were not retiring; (b) a serious deterioration of a previously diagnosed condition, including a chronic one, occurs within the presumptive period, and the deterioration would preclude further duty if the Service member were not retiring; or (c) the condition for which the Service member is referred is a chronic condition and a preponderance of evidence establishes that the Service member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period because of the condition.

		(2)  Service members are not presumed fit for military service in these instances of a pending retirement: (a) the disability is one for which a service member was previously determined unfit and continued in a permanent limited duty status.  The presumption of fitness will be applied to other medical impairments unless the medical evidence establishes they were impacted by the original unfitting disabilities; (b) Selected Reserve members who are eligible to qualify for non-regular retirement and (c) Reserve Component (RC) members referred for non-duty-related determinations.

	b.  Section 5(b) (Presumptive Period).  The Secretaries of the Military Departments will presume Service members are pending retirement when the preparation of the Service member’s MEB narrative summary occurs after an officer has been approved for selective early retirement or is within 12 months of mandatory retirement due to age or length of service or when an RC member is within 12 months of mandatory retirement or removal date and qualifies for a   20-year letter at the time of referral for disability evaluation.

19.  Title 10, USC, section 14506, states unless retained as provided in section 12646, 12686, 14701, or 14702 of this title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of major or lieutenant commander who has failed of selection to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall, if not earlier removed from the reserve active-status list (RASL), be removed from that list in accordance with section 14513 of this title on the later of (1) the first day of the month after the month in which the officer completes 20 years of commissioned service, or (2) the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

20.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrants Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the USAR.  Paragraph 4-33 states a MAJ on the RASL who has failed of selection for promotion to lieutenant colonel for the second time and whose name is not on a list of officers recommended for promotion to lieutenant colonel, will be separated unless the officer has a remaining service obligation or can be credited with 18 or more but less than 20 years of qualifying service for retired pay.  Separation will be on the later of the first day of the month after the month in which the officer completes 20 years of commissioned service, or the first day of the seventh month after the approval date of the promotion board report that nonselected the officer for the second time.

21.  Army Regulation 635-40 establishes the Army PDES.  

	a.  Paragraph 3-2(a) (Presumptions) states the following presumptions will apply to physical disability evaluation, before and during active service.

		(1)  A Soldier was in sound physical and mental condition upon entering active service except for physical disabilities noted and recorded at the time of entry.

		(2)  Any disease or injury discovered after a Soldier entered active service, with the exception of congenital and hereditary conditions, was not due to the Soldier’s intentional misconduct or willful neglect and was incurred in line of duty (LD).

		(3)  If the foregoing presumptions are overcome by a preponderance of the evidence, any additional disability or death resulting from the preexisting injury or disease was caused by military service aggravation.  (Only specific findings of "natural progression" of the preexisting disease or injury, based upon well-established medical principles are enough to overcome the presumption of military service aggravation.)

		(4)  Acute infections and sudden developments occurring while the Soldier is in military service will be regarded as service-incurred or service-aggravated. Acute infections are those such as pneumonia, active rheumatic fever (even though recurrent), acute pleurisy, or acute ear disease.  Sudden developments are those such as hemoptysis, lung collapse, perforating ulcer, decompensating heart disease, coronary occlusion, thrombosis, or cerebral hemorrhage.  This presumption may be overcome when a preponderance of the evidence shows that no permanent new or increased disability resulting from these causes occurred during active military service or that such conditions were the result of "natural progression" of preexisting injuries or diseases as in (3), above. 

		(5)  The foregoing presumptions may be overcome only by a preponderance of the evidence, which differs from personal opinion, speculation, or conjecture.  When reasonable doubt exists about a Soldier’s condition, an attempt should be made to resolve the doubt by further clinical investigation and observation and by consideration of any other evidence that may apply. In the absence of such proof by the preponderance of the evidence, reasonable doubt should be resolved in favor of the Soldier.

	b.  Paragraph 3-2(b) (Processing for separation or retirement from active service): 

		(1)  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.

		(2)  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:

			(a)  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.

			(b)  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.

			(3)  A Soldier previously found unfit but approved for continuation on active duty (COAD) is evaluated according to chapter 6 of this regulation.

21.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a Reserve commissioned officer of the Army on 13 June 1986.  He attained the rank of MAJ and he was not promotable.  By law and regulation, his separation date would be on the later of the first day of the month after the month in which the officer completes 20 years of commissioned service or the first day of the seventh month after the approval date of the promotion board report that non-selected him for the second time.  As such, his MRD was established as 31 January 2013.  

2.  While stationed in Korea, he complained of various medical ailments.  A medical officer recommended his transfer to the WTU for further evaluation and possible consideration by an MEB.  His NARSUM, dated June 2012, listed three conditions (neck pain, low back pain, and knee pain) and 17 other conditions that met retention standards and multiple other conditions that met retention standards.  The MEB referred him to a PEB.  He agreed.  

3.  He was considered by an informal PEB that found him fit for duty under the presumption of fitness rule.  He was advised of the findings and recommendations of the PEB and received a full explanation of the findings and recommendations as well as his legal rights.  On 29 September 2012, following his counseling, he concurred and waived his right to a formal hearing of his case. His PEB was further reviewed by the USAPDA and the findings were approved.  

4.  The intent of the Army disability system is to compensate Soldiers who are unable to qualify for retirement and complete their careers due to service-connected disabilities.  Soldiers who are within 12 months of their MRD prior to entering the DES are presumed to have completed a successful career, as their disabilities did not prevent them from reaching their maximum allowable service time.  Because his MEB was dictated within 12 months of his MRD, the presumption of fitness rule applies. 

5.  In order to overcome the presumption of fitness, one of the following must be established 

* Within the presumptive period an acute, grave illness or injury occurs that would prevent the Soldier from performing further duty if he or she were not retiring
* Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty 
* The condition for which the Soldier is referred is a chronic condition and a preponderance of evidence establishes the Soldier was not performing duties befitting her experience in the office, grade, rank, or rating before entering the presumptive period.

6.  There is insufficient evidence his condition(s) had permanently or severely worsened.  His condition(s) did not prevent him from performing the duties befitting his rank, grade, and experience before entering the presumptive period. While the ABCMR acknowledges his medical conditions, there is no reason to change the findings of the informal PEB.  When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.

7.  His physical disability processing was conducted in accordance with law and regulations and he received due process. There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant him the requested relief.

8.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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)                                         AR20140018078



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ABCMR Record of Proceedings (cont)                                         AR20140018078



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