IN THE CASE OF:	  

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150003670 


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 her previous request that she be referred to the Physical Disability Evaluation System (PDES) to determine whether she should have been medically retired vice discharged from the U.S. Army Reserve (USAR). 

2.  The applicant states, in effect, she is providing a new argument and new evidence that were not previously considered.

3.  The applicant provides two letters from the Department of Veterans Affairs (VA), six pages of medical records, and orders.

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 AR20130004907, on 25 February 2014.

2.  As a new argument, the applicant states:

	a.  She does not understand how a Soldier can be released with service-connected disabilities and be expected to inform employers that they can only do certain things within the limits of a military profile.  She has days where she is unable to walk upright and dress herself without pain but this is not an everyday issue.  She does have episodes every 3 months or so that last from 1 to 3 weeks.  She has three small children, a husband who is in the Special Forces Command, and she lives many miles from her family.  It is difficult to go to the VA [for treatment] every time she has an ailment.  She feels worse every day and something is now going on with her hips and upper back.  She is paying a chiropractor out of her own pocket because the Army won’t pay for it and she had to stop treatment because she was in pain.

	b.  After 14 years of active duty [in the Regular Army (RA)], she had her share of issues and was ready to go.  She was told twice that she should do a medical evaluation board (MEB) but was pregnant at the time and wanted the quickest way out of the Army.  People gave her a hard time because they wanted her to be part of a clique and she refused to do so.

	c.  She was allowed into the USAR but the check was not too thorough because she had a physical profile from the Army.  It may be her own fault as she did not take a separation physical from the Army in Korea.  After taking her first Army Physical Fitness Test (APFT) [in the USAR] she knew she wasn’t physically fit enough and informed her command that she had been granted 70 percent (%) disability by the VA.  Before she knew it, she was discharged from the USAR.  When she asked about a physical, they told her to submit a request to the ABCMR.  

   d.  She has applied for countless jobs but to no avail.  The VA increased her rating from 0% to 20% for her L-4/L-5 and she is losing strength in her hand.  Her hemorrhoid flare-ups are worse and she can’t go to a civilian job with all these ailments expecting them to overlook it.

3.  As new evidence, the applicant provides:

	a.  A VA letter, dated 3 March 2014, wherein it shows her combined service-connected evaluation was 80% effective 31 December 2013 and her previous combined rating had been 90% effective 9 October 2012.  She received the following service-connected disability ratings:

* 50% for right upper extremity carpal tunnel syndrome effective 9 October 2012; 10% previously assigned effective 31 December 2013
* 20% for left lower extremity radiculopathy associated with thoracic sprain with IVDS and scoliosis (previously rated as bulging disc, L4-L5) effective 29 May 2013
* 20% for right lower extremity radiculpathy effective 29 May 2013; previous rated at 0%
* 10% for thoracic sprain with IVDS and scoliosis (previously rated as bulging disc, L4-L5) - no change to this condition
   b.  An imaging report from Carolina Imaging, Fayetteville, NC, dated 10 February 2015, wherein it shows, in part, she underwent an ultrasound imaging of the pelvis on that date for a complaint of pelvic pain.  The report stated the impressions were unremarkable.  A note was made of a 1.5 cm simple dominant follicle with enhanced through transmission of the left ovary.  A mild to moderate amount of free pelvic fluid was noted; this nonspecific finding was most commonly seen with recent cyst rupture and pelvic inflammatory follow-up was recommended.

	c.  An imaging report from Carolina Imaging, dated 10 March 2015, wherein it shows, in part, she underwent an x-ray of the left spine on that date for a complaint of low back pain.  The report stated there was a levoconvex scoliosis of the thoracolumbar spine and mild degenerative changes at L3-L4.

	d.  An imaging report from Carolina Imaging, dated 23 April 2015, wherein it shows, in part, she underwent a sonographic evaluation of the abdomen because of elevated liver function tests and abnormal renal labs.  The report stated there was an unremarkable abdomen ultrasound with no acute abdominal abnormality and the liver and kidneys were normal by ultrasound criteria.

	e.  An imaging report from the VA, dated 30 July 2015, wherein it stated that x-rays taken of her right shoulder on 23 July 2015 found she had mild AC joint degeneration.  

4.  The applicant’s records show she enlisted in the RA on 12 May 1998 and she held military occupational specialty (MOS) 92Y (Unit Supply Specialist).  On 1 May 2003, she was promoted to the rank/grade of staff sergeant/E-6.

5.  On 23 September 2004, she was issued a permanent profile of "2" in the L (Lower Extremities) category of the PULHES.  The DA Form 3349 (Physical Profile) she was issued shows the permanent profile was for chronic low back pain and bilateral plantar fasciitis.  The approving authority stated the applicant could continue to perform all her military duties within the limits of her profile.

6.  On 1 December 2006, she was promoted to the rank/grade of sergeant first class (SFC)/E-7. 

7.  A DA Form 2166-8 (Noncommissioned Officer Evaluation Report), for the period 1 March 2010 through 28 February 2011, shows she successfully met all the requirements of duty MOS 92Y4O during the rating period.  It also shows she passed the APFT on 12 November 2010 and contains the remark "despite permanent profile, works hard to overcome physical limitations."
8.  She was honorably discharged from active duty on 17 April 2011 in the rank of SFC under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) by reason of parenthood.

9.  There is no evidence in her available records, and she did not provide any evidence, that shows while serving on active duty that she was treated for, or diagnosed with, any medical condition/disorder that permanently prevented her from performing her assigned duties, was found to be unfitting, or required referral to an MEB or physical evaluation board (PEB) (emphasis added).  There is no evidence that shows while serving on active duty that she ever received a permanent profile of "3" that would require referral to an MEB/PEB. 

10.  On 25 May 2012, she was appointed as a Reserve commissioned officer in the USAR in the rank of second lieutenant. 

11.  There is no evidence in her available record, and she did not provide any evidence, that shows while serving in the USAR after her release from active duty in April 2011 that she was treated for, or diagnosed with, any medical condition/disorder that was duty-related or nonduty-related (NDR) that prevented her from performing her assigned duties, was found to be unfitting, or required referral to an MEB/PEB.  There is no evidence that shows while serving in the USAR that she ever received a permanent profile of "3" for injuries received during her USAR training that would require referral to an MEB/PEB. 

12.  In November 2012, she voluntarily requested to resign her commission in the USAR.  She provides Orders D-12-217312, dated 3 December 2012, issued by U.S. Army Human Resources Command, honorably discharging her from the USAR effective 3 December 2010.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states MEB's/PEB’s are 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

14.  The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  The functions of the various organs, systems, and integral parts of the body are considered.  An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness.  A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations.  A profile containing one or more numerical designations of "3" signifies the individual has one or more medical condition that may require significant limitations.  A permanent profile of "3" would require referral to an MEB.

15.  Army Regulation 635-40 further states 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/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.

16.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active 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.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, 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 evidence of record confirms the applicant received a permanent profile of "2" in 2004 for chronic low back pain and bilateral plantar fasciitis while she was serving on active duty in the RA.  However, there is no evidence and she hasn’t provided any evidence that shows while serving in the RA that she was unable to perform her military duties due to these or any other medical conditions/disorders that would require a referral to an MEB/PEB.  She was promoted to SFC in 2006 and continued to perform her duties until she was honorably discharged in April 2011 by reason of parenthood. 

2.  In May 2012, she was appointed as a commissioned officer of the USAR.  The evidence of record does not show and she hasn’t provided any evidence that shows while serving in the USAR that she was treated for, or diagnosed with, any medical condition/disorders that were duty-related or NDR that prevented her from performing her assigned duties, were found to be unfitting, or required referral to an MEB/PEB.  

3.  There is no evidence that shows while serving in the USAR that she received a permanent profile of "3" for injuries received during her USAR training that would require referral to an MEB/PEB.  As such, she did not meet the criteria for entry into the PDES and she was appropriately discharged from the USAR in December 2012 based on her voluntary request to resign her commission.  There was no error or injustice.

4.  A disability decision rendered by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical condition of a Soldier at the time of their discharge from active duty or the USAR.  The VA may award ratings because of a service-connected disability that affects the individual's civilian employability.  

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 AR20130004907, dated 25 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)                                         AR20150003670



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ABCMR Record of Proceedings (cont)                                         AR20150003670



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