MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             5 April 2001                  
	DOCKET NUMBER:    AR2000041633

	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. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Harry B. Oberg		Member	
	Ms. Celia L. Adolphi		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 his discharge for years of service be corrected to a medical retirement.

APPLICANT STATES:  That his separation physical examination did not reflect his actual physical condition or his present day physical condition.

In support of his application he submits his retirement physical examination, dated 16 June 1998, in which he said he considered himself to be unhealthy, he listed several medications he was taking for depression, and he indicated that he was suffering from numerous medical and psychiatric problems.  The examining physician noted the applicant had complained of multiple psychosomatic symptoms, and had suffered from major depression, hyperthyroidism, knee problems and diverticulitis.  The physician conducting the examination gave the applicant a “3” under the physical category of his physical profile, but gave him a “1” under the psychiatric category.  The physician considered the applicant medically disqualified for retention until he was given a general surgery evaluation.  The applicant also submits documents showing that he had been treated at a military mental health clinic since May 1998.  Those records show that in July 1998 the staff psychiatrist found the applicant unfit for full military duty and recommended he be considered by a medical board (MEB) for major depressive disorder.

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

He entered active duty in the Active Guard and Reserve (AGR) program on 1 July 1979 with prior service and was honorably released from active duty in pay grade E-7 on 30 June 1982.

He was appointed as a warrant officer in the Army National Guard (ARNG) on 16 November 1982.

He reentered active duty in the AGR program on 3 October 1986 and has served continuously in that status, being promoted to the rank of Chief Warrant Officer 4.

On 31 July 1998 the applicant was honorably released from active duty for years of service and place on the retired list the following day.

In the processing of this case advisory opinions were obtained from both the Office of The Surgeon General (OTSG) and the Physical Disability Agency (PDA).  The OTSG stated that the evidence shows that the applicant suffered from major depressive disorder, single episode, severe, with psychotic features, a condition which was medically disqualifying and should have warranted referral to a medical board.  The PDA stated that after a soldier has a request for retirement approved, he or she enters into a “presumptive period” in which separation for medical unfitness is prohibited unless the soldier cannot perform duties because of a sudden and life threatening injury or disease which occurred during the presumptive period or could not perform duties because of a serious deterioration, during the presumptive period, of a previously diagnosed condition.  The PDA states that the evidence does not support that the applicant has overcome this presumption.  The PDA explains that the military disability compensation system is for soldiers whose careers are ended early due to physical problems, and since the applicant’s career was not ended early the PDA recommends that his records remain unchanged.

Department of Defense Instruction (DoDI) 1332.38, paragraph E3.P3.5.1, Application, states that 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 (Disability Evaluation System) 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.  Paragraph E3.P3.5.2., Presumptive Period, states that service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs after any of the circumstances designated in paragraphs E3.P3.5.2.1. through E3.P3.5.2.4.  Paragraph E3.P3.5.2.1, When a member’s request for voluntary retirement has been approved, states that revocation of voluntary retirement orders for purposes of referral into the DES does not negate application of the presumption.  Paragraph E3.P3.5.3, Overcoming the Presumption, states that the presumption of fitness rule shall be overcome when: (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 (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 (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.

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

1.  The evidence of record does not contain the applicant’s final Officer Evaluation Report (OER) or his request for retirement.  Without those documents the Board must presume that the applicant was physically fit to perform his duties when he entered into the presumptive period of his career.

2.  While the applicant was diagnosed as suffering from a major depressive episode 8 days prior to his release from active duty, and the treating psychiatrist recommended a medical evaluation board, it would appear that condition was a result of the natural progression of his previously diagnosed mental condition; not an acute and grave injury or disease which would overcome the presumption of fitness.  As such, without a preponderance of evidence that the applicant was not performing duties befitting his experience in the office, grade, rank, or rating before entering the presumptive period because of his depression, there would be no basis for referring him to a MEB.

3.  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

___jh  ___  ____hbo_  ____cla_  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999025402	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010405	
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.	108.05	
2.		
3.		
4.		
5.		
6.