MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  18 August 1999
	DOCKET NUMBER:   AR1999026578

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Edward L. Williamson		Member	
	Ms. Sherri V. Ward		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, that documents pertaining to his physical profile be removed from his records.

APPLICANT STATES:  In effect, that he suffered an injustice because of the presence of physical profile documents in his records which resulted in his non-selection for promotion; that he had medical problems throughout his entire military career which had never been documented in his records before; and that his medical problem was used to prevent his promotion and his medical board was used to deny him disability and severance pay.  He further states that his medical evaluation board started on 16 December 1997 and the Army sat on his paperwork until he was within a year of his retention control point (RCP) and then determined, erroneously, that he was fit for duty and could not be medically retired.

The applicant submitted numerous documents in support of his request including a copy of his medical evaluation board (MEB) and physical evaluation board (PEB) proceedings with addendum; appeal documents and counseling checklist (DA Form 5893-R); a copy of a memorandum dated 18 August 1998 from his unit commandant pertaining to his physical unfitness for duty; a copy of an extract of Army Regulation (AR) 600-60, Chapter 4, physical disability evaluation system, page 8; a notarized copy of a memorandum pertaining to an appeal of the PEB finding, presumption of fitness, dated 19 March 1999; a copy of a medical records consultation sheet dated 31 October 1997; a copy of a chronological record of medical care dated 16 December 1997; a copy of 5 DA Forms 3349, physical profile, dated 7 May 1997, 4 December 1997, 21 January 1998, 23 April 1998, and 30 July 1998; a letter dated 2 July 1998 from an Army cardiologist; a copy of a psychiatric and neurologic evaluation report from a civilian doctor; and 2 copies of a radiologic examination report.

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

He initially entered active duty in the Regular Army on 29 September 1977.  He is currently serving on active duty in military occupation specialty (MOS) 82C, land surveyor, in the rank of sergeant first class (SFC) at the U.S. Army Noncommissioned Officers Academy, Fort Sill, Oklahoma.  His records also show that he was promoted to SFC on 1 August 1993 and that he completed 
21 years of active duty service on 29 September 1998.

A medical record consultation sheet dated 31 October 1997, prepared by his Army family practice doctor, indicated a diagnosis of valvular heart disease with moderate to severe aortic stenosis (narrowing) which was attributed, most likely, to rheumatic fever as a child.  His family practice doctor recommended no physical training (PT), referred him to an Army cardiologist at Fort Sam Houston, 

Texas, and requested he return in 2 weeks for follow-up and evaluation for surgery. 

A chronological record of medical care dated 16 December 1997, prepared by an Army cardiologist, indicated that the applicant was being seen for further evaluation of his heart condition.  The cardiologist stated that presently, no valve replacement surgery was indicated, however, a MEB should be considered in the near future.  The cardiologist further stated that he should continue on his temporary profile with no PT and return for further evaluation in 3 to 4 months.

On 2 July 1998, in a letter to his family practice doctor at Fort Sill, the Army cardiologist stated, in effect, that he anticipated the applicant would undergo aortic valve replacement surgery within 2 years, however no surgery was recommended now; that he should have a permanent profile which precluded strenuous exercise and running but he could walk at his own pace; that he would be reevaluated in 
3 months; and that he should undergo an MEB.

Review of his DD Forms 3349 indicated that on 7 May 1997, he was issued a permanent profile for hearing.  The document noted that he wore 2 hearing aids. Other DD Forms 3349 showed that on 4 December 1997, he was initially issued a temporary profile precluding any anaerobic activity.  His temporary profile was renewed 2 additional times and made permanent on 29 July 1998.  In his permanent profile, he was precluded from carrying or firing a rifle, wearing a helmet, lifting more than 25 pounds, or taking the Army Physical Fitness Test (APFT).  However, he could walk at his own pace and distance and stretch at his own pace.

The distribution legend on these documents indicated that copies of each of his profile documents were provided to the servicing clinic, his health records, his personnel records, and his unit commander as required in accordance with procedures outlined in AR 40-501, Chapter 7.

A review of his NCOERs prior to the diagnosis of heart disease and related profiling indicated that his rater and senior rater consistently rated him as among the best and number 1 respectively, regarding his overall performance and potential for assignment to positions of greater responsibility; and that he should be promoted immediately or ahead of his peers.  His NCOERs also showed that he passed the APFT with scores of 273 or higher and a maximum score of 
300 on one APFT. 

His NCOER for the rating period from August 1997 to March 1998 showed a rating similar to his NCOERs for the period prior to his medical diagnosis.  His rater and senior rater rated him as among the best and number 1 respectively, regarding his overall performance and potential for assignment to positions of greater responsibility; and that he should be promoted ahead of his peers.  His NCOER also showed that he passed the APFT in October 1997 with a score of 281.  The rater 

commented that he possessed unlimited stamina; and that he was an accomplished distance runner. 

His NCOER for the rating period from April 1998 to March 1999 showed that his rater rated him as fully capable; that he was on a PT test profile as of July 1998; and that his profile did not hinder his job performance.  The senior rater rated him number 1 and 2 respectively, regarding his overall performance and potential for assignment to positions of greater responsibility; that he should be promoted with his peers; and that he should be reclassified and reassigned to a position that maximized his capabilities within his profile. 

His DA Form 2-1, personnel qualification record, indicated a number of detailed entries concerning his profile in the “assignment considerations” category.  These entries stated that “no exposure to noise in excess of 85dB or weapon firing without use of properly fitted hearing protection”; that “annual hearing test required”; that “moderate-severe stenosis pre-syncopal symptoms with exertion”; that “no mandatory physical training, no running, jumping, marching, or heavy lifting greater than 25 pounds”; and that “soldier may walk at own pace and distance and stretch at own pace, exempt from Army Physical Fitness Test”. 

On 6 November 1998, the MEB recommended his referral to a PEB based on a diagnosis of valvular heart disease with moderate to severe aortic stenosis that rendered him unable to perform many duties required of his particular MOS including PT.  Other medical conditions noted included bilateral hearing loss, left shoulder pain, bilateral knee pain, gum disease, and C-spine degenerative joint disease.

On 2 February 1999, the PEB determined that he was fit for duty by presumption. This determination was based on the fact that (1) he was within 12 months of his RCP of 29 September 1999, when he entered the disability evaluation system (DES) on 6 November 1998, the date of preparation of the MEB narrative summary; (2) the 12-month period prior to reaching the RCP is known as the presumptive period and entry into the DES during this period carries a presumption of fitness; that (3) the evidence indicated at the time of his entry into the DES during the presumptive period, he was performing his duties befitting his experience; that (4) there was no serious deterioration of previously diagnosed conditions during the presumptive period; and that (5) he had not overcome the presumption of fitness.  

In his rebuttal to the PEB findings dated 18 February 1999, he argued, in effect, 
that he required MEB processing long before his RCP became a factor and this fact was supported by evidence; that the PEB finding of fit for duty by presumption was incorrect and unsupported; and that he had documents to show that his condition deteriorated during the presumptive period but this evidence was not considered by the PEB.

The evidence that the applicant referred to in his rebuttal pertained to a radiologic examination conducted on 4 December 1998 by an Army doctor and a nerve conduction study and an electromyography report both prepared by a civilian doctor.  

The radiological report concluded that he suffered from multi-level digenerative disc disease, moderate at the C4-5 and C5-6 level and mild at the C6-7 level resulting in acquired spinal stenosis and mild neuroforaminal stenosis at the C4-5 and 
C5-6 levels.  There was nothing in this report pertaining to his heart disease.

The nerve conduction study and the electromyography was ordered by his Army doctor to evaluate the neck pain and other pain he was experiencing in his arms and shoulders and to rule out the existence of radiculopathy, spinal nerve root disease.  The test results suggested mild radiculopathy at the C5-C6 level of his spine. There was nothing in this report pertaining to his heart disease. 

On 19 February 1999, he and the PEB liaison officer (PEBLO) signed a DA Form 5893-R indicating that he did not agree with the PEB findings and demanded a formal hearing.  Review of this document showed that all of the applicable items were checked and annotated with either “no” or “not explained” and a hand written entry by him that no aspect of the MEB or PEB process was explained.

On 24 February 1999, the PEB president, a colonel, responded to his rebuttal by stating, in effect, that the PEB carefully considered his rebuttal and the PEB findings and found that no change from the original findings was warranted.  The reply further stated that he continued to perform his duties prior to entering the presumption of fitness rule period, 12 months prior to his RCP of 29 September 1999; that the key performance evidence was his latest NCOERs showing he scored at or near 300 on the APFT and possessed unlimited stamina as an accomplished distance runner; that his raters and senior raters consistently rated him among the best and top block performance respectively; and that he was still in the same duty position one month prior to the presumptive period.  The reply added that his request for a formal PEB was denied because under Department of Defense policy instructions, he was not entitled to contest a finding of “fit” by formal PEB but could nonconcur with such a finding by rebuttal which he had done.

The PEB findings were approved on 10 March 1999.  The findings specifically stated that he had been found physically fit to perform the duties of his office, grade, rank, and MOS and was deployable within the limitations of his profile.  His PEB approval document also directed that his personnel records be updated to reflect his disposition and assignment limitations; and that if he was not scheduled for separation or retirement for reasons other than physical disability, he should be returned to duty.

Review of the calendar year 1999 master sergeant promotion selection board results dated 5 April 1999, showed that the average time in service of those individuals who held the applicant’s MOS, 82C and who were selected for promotion to master sergeant in the primary zone of consideration, was 16.9 years and the average time in grade was 5 years.

Army Regulation (AR) 600-60, Chapter 4 pertains to the physical disability system and states, in effect and in pertinent part, that when it is determined that a soldier cannot satisfactorily perform MOS duties in a worldwide field environment, the soldier will be referred to the Army’s physical disability system for a determination of physical fitness under procedures outlined in AR 635-40.  This regulation further states that after a MEB, an informal PEB hearing will be held to determine if the soldier is physically fit to continue to perform the MOS duties according to the office, grade, rank, or rating held by the soldier.  The soldier may concur or nonconcur with the findings and may demand a formal PEB.  A formal PEB determines if the soldier is physically fit and may revise an initial determination based on any nonconcurrence or rebuttal by the soldier.

This regulation also states that a soldier is presumed physically fit at the time of entry on active duty and this presumption continues throughout the soldier’s career unless an injury or disease is incurred that prevents the satisfactory performance of duty.  If the soldier remains on active duty until the scheduled nondisability separation or retirement, the soldier is presumed physically fit at the time of separation or retirement.  

The regulation further states that a soldier with a medical condition that prevents the full accomplishment of MOS duties should not be transferred to a less demanding duty position or allowed to perform only a part of the required duties in order to allow the soldier to continue on active duty; that such medical condition should also not be minimized during periodic physical examinations; that referral to a MOS reclassification board or the physical disability evaluation system is necessary to ensure that the soldier can satisfactorily perform MOS duties worldwide under field conditions; and that such referral will also ensure that a soldier who may be eligible for disability benefits or severance pay is not precluded from such entitlements by the presumption of fitness that applies at the time of nondisability separation or retirement.

AR 635-40 outlines policies, responsibilities and procedures for the operation of the Army physical disability evaluation system as a means to determine whether a soldier is unfit because of physical disability to reasonably perform the MOS duties associated with the soldier’s office, grade, rank, or rating.  The objective of this regulation is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits to eligible soldiers whose military service is 

terminated because of service-connected disability and provide prompt disability processing while ensuring that the rights and interests of the government and the soldier are protected.

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’s request to remove his physical profile documents from his records is not warranted.  Such a request also violates laws, regulations, policies, and procedures pertaining to the maintenance of an effective and fit Army for worldwide deployment. 

2.  Regarding his contention that the Army intentionally delayed the processing of his physical disability evaluation, the Army’s physical disability evaluation system encompassing a two-phased process, consists of a series of steps or tasks that begins with the medical evaluation phase when an individual seeks treatment for symptoms of an undiagnosed disease or illness and ends after final determination concerning fitness for duty is made by a physical evaluation board and after pertinent required documentation has been permanently filed in an individual’s health and personnel records.  External factors such as patient case load, appointment scheduling, doctor availability, and medical equipment availability often affects the timely completion of the steps or tasks involved in the entire physical disability evaluation process.  Sometimes, these external factors could delay one or more of these steps from being completed for a number of weeks or even several months.  There is only one guiding principle for Army personnel at all levels associated with physical disability evaluation processing and that is, the best interest of the Army and the individuals concerned is served by completing their physical disability evaluations as quickly as possible.  Keeping this in mind, the Board reviewed his physical disability evaluation processing beginning from 31 October 1997, when he first sought treatment for and was diagnosed with valvular heart disease and ending subsequently to 10 March 1999, the date of the approval of the physical evaluation board’ s findings and the permanent filing of all related documents and found nothing to indicate that such processing was excessively delayed to subject him to injustice or to affect the physical evaluation board’s finding of fit for duty by presumption. 

3.  The Board further concluded that the completion of the medical evaluation phase after 38 days into the 12-month presumptive period on 6 November 1998, the date of the medical evaluation board’s narrative summary, was irrelevant and had no bearing on the outcome of his physical disability evaluation. 

4.  The Board also finds it important to mention that the specific wording of the PEB finding, fit for duty by presumption, serves notice that the manifestation of his medical 
condition which did not occur during the last 12 months of his career, was not so 

egregious to cause his unfitness from the date of diagnosis.  As such, his medical condition was not a factor in termination of his career but rather his retention control point.  Accordingly, he did not meet the statutory criteria for disability compensation based on the loss of a career.  If his physical disability evaluation had occurred entirely outside of the 12-month window, then the finding would have most likely read, fit for duty within the limits of his permanent profile.

5.  Regarding his non-selection for promotion to master sergeant, the Board 
concludes that his time in grade and time in service which exceeded the average 
time in grade and time in service for those of his contemporaries who were selected for promotion to master sergeant in 1999 out of the primary zone in his MOS was, most likely, the key factor in his non-selection for promotion rather than his permanent physical profile.  Since the date of completion of his physical disability evaluation processing closely coincided with the date of the release of the 1999 master sergeant selection board results, it is highly unlikely that any medical documentation relating to his physical disability evaluation was a factor in his non-selection for promotion. 

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  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

__RO___  __EW____  __SW___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999026578	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990818	
TYPE OF DISCHARGE	NA	
DATE OF DISCHARGE	NA	
DISCHARGE AUTHORITY	NA	
DISCHARGE REASON	NA	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131	
2.		
3.		
4.		
5.		
6.