MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             28 July 1999     
	DOCKET NUMBER:    AR1999021852

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Margaret V. Thompson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, physical disability retirement.  

APPLICANT STATES:  That he was not properly retired from the Army.  In the fall of 1994 he appeared before a MOS/Medical Retention Board because of a service connected ankle injury.  The board directed that he be scheduled for a medical evaluation board (MEBD)/physical evaluation board (PEB) to determine his medical qualification for retention in the Army.  He was informed that the procedure could take 3-4 months.  He was offered civilian employment, however, he would have to begin in January 1995.  Consequently, he could not wait for the medical board proceedings.  He discussed his options with the physical evaluation board liaison officer (PEBLO) at Fort Huachuca, who informed him that he could separate from active duty, transfer to the Army Reserve, and continue medical processing; and because his injury occurred while on active duty he would be medically retired with all due benefits.  Based on this information and the need to support his family, he chose to separate from the Army.

However, once in the Reserve, he was informed that he could not be placed on active duty or perform inactive duty and that he was going to be placed in the Retired Reserve.  He assumed that he would receive all benefits, i.e., PX, commissary, etc., but this was not the case.

He was a career military officer with an outstanding record, who had no intentions of leaving the Army, but his continued problems with his foot and ankle hampered his ability to continue.  The injury occurred in line of duty.  He believes that because he was going to be forced out of active service, and the fact that the Reserve would not allow him to remain [with that component] entitles him to the appropriate physical disability retirement, to include access to health care, PX, commissary and other benefits.   

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was enlisted in the Army National Guard from 1984 to 1987, and was commissioned a second lieutenant in the Reserve as a military intelligence officer on 17 May 1987, assigned to a National Guard unit in Rehoboth, Massachusetts.  He entered on active duty on 9 September 1989 and was assigned to Fort Riley, Kansas.  He served in Southwest Asia for four months, was transferred to Fort Leavenworth, Kansas, and was promoted to Captain in November 1992.  In June of 1994 he was assigned to Fort Huachuca, Arizona to attend the MI advanced course. 

On 13 October 1994 a MMRB found that the applicant did not currently perform all the duties required of his AOC (area of concentration) of 35D00; that his profile limitations precluded satisfactory performance in any AOC in a worldwide field environment.  That board recommended that he be scheduled for a MEBD and his case be forwarded to a PEB.

On 24 October 1994 the commanding general of Fort Huachuca approved the findings and recommendations of the board and directed that the applicant be scheduled for a MEB and a PEB.  

In a 19 October 1994 performance statement, the applicant’s executive officer from 1 June 1993 to 1 May 1994, stated that the entire time she worked with the applicant he was either having surgery, rehabilitating, or on profile, often walked with a limp, and encountered unbearable pain while attempting physical training with his soldiers.  She stated that the applicant was a stellar officer and that due to his extraordinary leadership and constant perseverance, he always managed to meet the requirement of what was expected of him physically.  She said that the applicant injured himself while serving on active duty.

In a 28 October 1994 performance statement the applicant stated that he first injured his foot and ankle in June 1990 during a staff basketball game during physical training, that he was put in a cast for two months, and went through extensive physical therapy.  He reinjured his ankle while running after he came off profile, and shortly after his cast was removed he was sent to the Middle East for participation in Operation Desert Storm.  He had his ankle reconstructed, but since that first surgery in June 1991 has had nothing but continued problems with his right foot and ankle.  He has been battling these injuries for four years, has been on temporary profiles and in physical therapy, and has not been able to take regular physical training tests.  His job as an intelligence officer is physically demanding and he has a problem keeping up physically.  His foot is continuing to deteriorate and the pain has increased every year.  He wanted to make the military his career, however, he could accept being released because he is tired of living in pain and he has done everything he could.

In a 4 November 1994 performance statement the applicant’s commanding officer stated that the applicant’s performance had been excellent, but he had been unable to participate in organizational physical activity and was limited to the time he could be on his feet, and that after 10-15 minutes on his feet the applicant was in extreme pain. That officer stated that he did not believe that the applicant could perform all the duties required of a military intelligence officer or a commissioned officer in the Army, and that if the applicant remained on active duty his ankle and foot would continue to deteriorate and he would become susceptible to further injury.  He recounted a brief history of the applicant’s injury, stated that the applicant currently had a permanent profile for his right foot and ankle and was unable to do push-ups, sit-ups, or the two mile run.  He stated that the applicant had fully complied with prescribed medical treatment while assigned to his unit, and that he did not believe that his condition was in any way exaggerated.  He indicated that the applicant was referred to the physical disability evaluation system by an MMRB.

In a 31 October 1994 message the Total Army Personnel Command (PERSCOM) approved the applicant’s request for release from active duty effective 1 January 1995.  His request was approved under the provisions of Army Regulation 635-100, section XVI, chapter 3.

In a 7 November 1994 report of medical examination, the applicant was physically qualified for separation with a physical profile serial of P3 1 P3 1 2 1.  That report indicated that a MEBD was in process.  In the report of medical history that the applicant furnished for the examination, he stated that he had, or had had numerous medical problems, to include a hernia, problems with his ankle, and problems with his foot. 

An 18 November 1994 physical profile record shows that the applicant’s physical profile serial was 1 1 3 1 1 1, because of chronic right ankle pain.

The applicant was released from active duty on 1 January 1995 and assigned to the 372nd Military Intelligence Company, a Reserve unit at Hanscom Air Force Base in Massachusetts.  He had 5 years, 3 months, and 23 days of active service. 

On 8 July 1995 the applicant was transferred from the 372nd MI Company to the Army Reserve Control Group (Reinforcement) at St. Louis.  The order effecting that transfer indicates that it was a voluntary transfer.

In an 18 July 1997 memorandum to the applicant, the Army Reserve Personnel Center command surgeon notified him that a review of his medical records revealed that he did not meet the standards for retention in the Army Reserve and/or entry on active duty by reason of his chronic right ankle pain, in accordance with AR 40-501, chapter 3-14.  He was offered a choice of discharge from the Army Reserve or transfer to the Retired Reserve.  If he elected transfer to the Retired Reserve, he was informed that he would not be eligible for retired pay or other benefits unless otherwise entitled by law. 

On 13 August 1997 the applicant was assigned to the Retired Reserve because of his medical disqualification.

Army Regulation 635-100 provides policies and procedures for separation officers from active duty.  Paragraph 3-8 states in pertinent part that an officer undergoing release from active duty or completion of expiration of term of service, many only be considered for retention past the established release date when continued hospitalization is required and/or physical disability processing is required, or has been initiated.  Officers will not be retained on active duty beyond their scheduled release or retirement date without written consent which must be signed by the individual concerned.

Section XVI of that regulation states in pertinent part that an officer may, if eligible, submit an application for release from active duty whenever such action is considered appropriate.

Army Regulation 600-60 implements and establishes operating procedures for the physical performance evaluation system to ensure that each soldier is physically qualified to perform in his specialty world wide and under field conditions.  It provides for a MMRB to serve as an administrative screening board to evaluate soldiers with permanent medical conditions to determine if they can perform satisfactorily in their specialty in a world wide field environment.  Upon completion of a soldier’s evaluation, the MMRB will recommend to the convening authority a soldier’s retainability in his specialty code, the requirement to be reclassified, probationary status, or referral to the Army’s physical disability system.  

Army Regulation 635-40 establishes the Army physical disability evaluation system 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 provides for medical evaluation boards, which 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 qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Army Regulation 40-501 provides information on medical fitness standards for enlistment, retention, and related policies and procedures.  Chapter 9 sets basic policies and procedures for medical examinations.  It covers those examinations used to medically qualify individuals for entrance into and retention in the Army Reserve.  Normally, Reservists who do not meet the fitness standards will be transferred to the Retired Reserve or discharged.  They will be transferred to the Retired Reserve only if eligible and if they apply for it. 
Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, paragraph 3-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant requested to be separated from active duty.  His request was granted.  He was found to be physically fit for retention or separation immediately prior to his release from active duty.  

2.  The applicant himself has stated that he did not want to wait for his case to be reviewed in the physical disability system.  Consequently, there is no way of knowing if an MEBD would have determined that he was unfit for retention in the Army, and if he would have been referred to a PEB to determine his ultimate status.  This Board has carefully considered the applicant’s statements, the information provided by his former executive officer and commanding officer concerning his medical condition, and the findings and recommendations of the MMRB.  He may have not been able to perform his duties in his specialty, or any specialty in the Army.  However, because the applicant made a choice, to forego any physical disability proceedings, and instead to be released from active duty, it is presumed that he was fit.  The report of physical examination so indicates. 
 
3.  The fact that the ARPERCEN Surgeon did find the applicant unfit for retention in the Reserves over two years after his release from active duty does not negate the fact that he was fit for duty at the time of his release from active duty.  Furthermore, the ARPERCEN Surgeon has previously advised the Board that he routinely reviews the medical records of Reserve personnel to determine if they have any medical condition which would be further aggravated by the rigors of military service, and uses that premise as one basis to determine fitness for retention.   

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_fne____  __lem__  ___mvt____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021852	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990728	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.