MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  20 September 2001
	DOCKET NUMBER:  AR2000049499

	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. Karl F. Schneider		Director, Army Review Boards Agency	
	Mr. Vic Whitney		                        Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Paula Mokulis		Member	
	Mr. Kenneth W. Lapin		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 retirement for length of service be revoked and that he be retired by reason of physical disability.

APPLICANT STATES:  That his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) contained incomplete and erroneous information that led to an unjust decision of fit for duty.  The MEB and PEB also failed to follow regularity requirements and contained technical errors.  He submitted his request for voluntary retirement only after the fit for duty determination.  Although he had over 26 years of active duty, he had 5 years remaining until his mandatory removal date in 2004.  He firmly believed that his physical impairments made him unfit for further duty.

He did not voluntarily enter the disability evaluation system but did expect a fair, accurate, and thorough evaluation, not one that was sloppy and arbitrary and filled with substantive inaccuracies and mistakes.  The applicant provides an extensive brief with 48 enclosures, which expands his arguments on each of the contentions he raises.  A list of the enclosures is provided at the beginning of his application.  He principally provides documents from his Official Military Personnel File, MEB and PEB proceedings, military medical records, extracts of Army Regulations and medical publications, statements of self-diagnosis, and Department of Veterans Affairs (DVA) rating decisions.

The applicant states that he has been rated by the DVA with a combined service connected disability of 80 percent on eight different diagnoses.  These are virtually the same conditions that were used by the Army when he was declared fit for duty. Since the Army and the DVA use almost identical rating tables how could he be found 80 percent disabled by the DVA and fit for duty by the Army for the same ailments?

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

He was serving on active duty as a Military Intelligence officer in the rank of colonel with a date of rank of 1 May 1997.  He was assigned to the Defense Intelligence Agency (DIA) with duty in Germany as the Chief, DIA Liaison Detachment.  He had almost 26 years of active duty and was 55 years of age.

On 4 June 1998, the applicant’s supporting command was notified that the applicant had been provided a permanent profile that required his appearance before a Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) to determine his physical ability to perform in a worldwide environment.  Between 1 April and 4 June 1998, the applicant had been examined and received a permanent “3” profile for upper and lower extremities from the orthopedic clinic and a “2” profile for physical capacity from the oral surgery clinic.  All three of the physical profiles issued show that the unit commander had determined that no change in MOS or duty assignment was required.
The applicant’s unit commander completed a questionnaire for the MMRB, which stated that the applicant’s first profile was issued on 2 April 1998, that he was not eligible for all positions within his MOS because of his beard, and that he passed his most recent physical training test on 26 September 1997.

The applicant appeared before the MMRB on 4 August 1998.  The findings and recommendations of the MMRB were that the applicant should be referred for physical disability processing.  The medical conditions listed were: 1) left lateral thigh numbness; 2) ankle and foot pain; 3) mild arthritis of the left elbow; and 4) right jaw numbness.  On 27 August 1998 the MMRB convening authority directed the applicant be referred to the Medical/Physical Evaluation Board (MEB/PEB) to determine his fitness for continued active duty.

An orthopedic consultation was prepared for the MEB.  The past history of the orthopedic consultation noted that the applicant stated that he was presently unable to perform his duties as an active duty soldier.  The diagnoses provided were: 1) mechanical low back pain secondary to an unspecified joint disease without specific findings; 2) decreased left shoulder range of motion with weakness; 3) decreased left elbow range of motion; 4) recurrent ankle pain; and 5) recurrent foot pain.  The applicant was not considered a surgical candidate for the above conditions and it was recommended that the applicant proceed with his medical board processing.

An internal medicine consultation was also prepared for the MEB.  The diagnoses provided were: 1) mild hypertension controlled by medication; 2) mild nonobstructive plaque in the carotid arteries; 3) history of decreased pulse rate on one occasion, predominant cardiac rhythm normal; 4) history of a positive exercise treadmill test 1-year ago.  Follow-up stress treadmill study in August 1998 was normal; and 5) mild hyperlipidemia (high cholesterol) controlled by medication.

An MEB Summary was prepared by an orthopedic doctor assigned to the orthopedic clinic.  The resulting diagnoses were: 1) low back pain; 2) degenerative changes to the left shoulder; 3) degenerative changes to the left elbow; 4) recurrent right ankle pain; 5) foot pain; 6) hypertension; 7) mild nonobstructive plaque in the carotid arteries; 8) history of decreased pulse rate; 9) history of positive exercise stress test; 10) high cholesterol; 11) abnormal sensation in the lower lip; and 12) left thigh pain.  Those diagnoses that presented a physical limitation were discussed in the History of Present Illness portion.  The doctor recommended that the applicant be referred to a PEB for evaluation because he did not meet medical retention standards.

As a result of the MEB consults and MEB summary, a physical profile was approved on 31 August 1998, which shows that the applicant had a permanent serial profile of “2” for physical capacity, a “3” for upper extremities and “3” for lower extremities.

The MEB was conducted on 16 October 1998.  Based on the 12 diagnoses provided in the MEB Summary, that board recommended referral to a PEB.  The recommendation was approved on 17 November 1998.  The MEB Proceedings also note that the applicant did not desire to continue on active duty and that he concurred with the MEB findings and recommendation.

On 3 December 1998, an informal PEB convened to determine if the applicant was fit or unfit to perform his military duties.  The PEB stated “ Based on a detailed review of the evidence of record, the PEB concludes that you do not have any functional impairment which prevents satisfactory performance of duty. The PEB finds you fit for duty in your current grade and specialties”.  On 11 December 1998 the applicant nonconcurred with the PEB finding of fit for duty and stated that he would submit an appeal upon receipt of his medical records.

On 11 December 1998 the applicant also submitted a request for voluntary retirement with an additional request for a waiver of 11 months time-in-grade so he could retire in the rank of colonel.  He states that the reason for his voluntary retirement is the PEB fit for duty decision despite his numerous medical problems and profiles that exempt him from the APFT and authorized the wearing of a full beard.

Also in the available record are the applicant’s last five officer evaluation reports (OERs) that cover the period from April 1994 through September 1998.  The first OER covers the period through 19 April 1995, and notes that he exceeded the appropriate level of physical fitness with a maximum score on the Army Physical Fitness Test (APFT).  The second OER covers the period through 19 April 1996, and again notes that he achieved a maximum score on the APFT.  The third OER, covering the period through 31 December 1996, again notes that he achieved a maximum score on the APFT.  The fourth OER covers the period through 30 September 1997 and notes, for the fourth time, that he achieved a maximum score of the APFT.  His final OER covers the period through 30 September 1998 and notes that he had a physical profile that exempted him from the APFT for that rating period.  The physical attributes block on the OER, concerning the maintenance of an appropriate level of physical fitness, was marked “YES.”  The Rater noted that the applicant was a top performer with unlimited potential.  The Senior Rater noted that the applicant’s performance of duty was superior.

The applicant forwarded a 21 December 1998 memorandum of appeal to the PEB. In his appeal the applicant stated that he could not meet even the minimum standards of the APFT because of his multiple orthopedic and neurological impairments, and the PEB should not have found him fit for duty.  The applicant also notes that, although his supervisor states that he is performing his present duties satisfactorily, his future opportunities for assignment while wearing the full beard required by his profile are limited.  The applicant goes on to explain to the PEB his multiple orthopedic and neurological impairments and their effect on his duty performance.  The applicant states that, if needed, he will appear before a formal PEB to argue his case.

On 29 December 1998 the PEB President informed the applicant by letter that his rebuttal statement and additional enclosures were reviewed.  The applicant was informed that his submission failed to provide any new diagnosis and the PEB had affirmed the prior informal PEB decision of fit for duty.

The applicant provides copies of some e-mails between the Physical Evaluation Board Liaison Officer (PEBLO) in Germany and the PEB concerning what documentation was sent by the applicant in his rebuttal and when, and what was reviewed by the PEB.  The PEB response noted that the applicant’s two large volumes of documents were reviewed in the decision to sustain the fit for duty finding, but that an undated addendum was received on 13 January 1999 with a 21 December 1998 letter of rebuttal.  The Physical Disability Agency (PDA) would conduct the final mandatory review and take final action.

The President of the PEB provided an 8 February 1999 memorandum to the commander of the regional medical center in Germany that assisted in the MEB/PEB process.  The memorandum noted that the PEB had reviewed two folders of documents provided by the applicant as a basis for his rebuttal and affirmed the original PEB finding of fit for duty.  During the period of 4-6 January 1999 the PDA conducted another review and approved the fit for duty determination.  The Physical Disability Branch closed the case on 11 January 1999 with a letter to the applicant.

The memorandum went on to discuss a 21 December 1998 letter of appeal from the applicant received 19 January 1999.  The appeal included an undated and incomplete change to the MEB narrative summary.  The regional medical center was advised to consider the conduct of a new MEB since this new diagnosis of valvular heart disease was not evaluated by the PEB and the prior case was closed and could not be re-adjudicated.

The applicant filed a complaint with the regional medical center’s Inspector General (IG) on 8 March 1999.  The basis of the complaint was that the MEB “was rife with technical errors and a failure to adhere to regulatory requirements.” The applicant had concluded that the MEB was negligent in ensuring that his file presented an accurate description of his impairments and duty limitations prior to providing it to the PEB.  The applicant requested a new MEB.

Effective 31 May 1999, the applicant was voluntarily separated from active duty and transferred to the Retired Reserve with over 26½ years active Federal service.

On 23 August 1999, the applicant was provided a response from the IG of the regional medical command.  The IG stated that the medical center commander directed a review of all pertinent documents concerning his MEB.  After a careful review it was determined that there were some inconsistencies between the clinical findings and associated narrative summaries.  This review, however, did not establish that any of the inconsistencies between the clinical findings and associated narrative summaries were of such a nature as to establish an unfitting medical condition or to affect the MEB’s overall findings.  The IG also reiterated the presumption of fit rule that states that a soldier who is performing their assigned duties until scheduled for separation is presumed fit for duty.

The applicant provides copies of various disability rating decisions by the DVA.  A 10 April 2000 notification shows that his previous (unknown date) rating of 70 percent had been increased to 80 percent.  The DVA rating decision shows that he was now rated at 40 percent for lumbosacral strain and sprain, 20 percent for residuals of a left shoulder repair, 10 percent each for residuals of a left elbow condition, hypertension, jaw pain, right foot pain, left foot pain, and right ankle pain, and zero percent for left thigh pain and removal of a nerve on the right 2nd toe.  This decision also stated that his claim of a history of a positive stress test, a history of low pulse rate, peripheral vascular disease and a heart condition were not well grounded with no evidence of an actual disability.  A 21 March 2001 rating decision letter re-confirmed that status of no service connection.

In the processing of this case an advisory opinion was provided by the Office of the Medical Advisor, Army Review Boards Agency (ARBA).  The advisory opinion notes that none of the twelve diagnoses listed in the MEB are specifically unfitting. The opinion also notes that, in each case of the applicant’s myriad medical concerns, it is necessary to compare the nature and degree of disability present with the requirement of the duties of the soldier.  The military disability system only compensates for those disabilities that terminate a military career while the system provided by the DVA compensates for all service-connected impairments meeting the disability rating schedule.  It was the opinion of the ARBA medical advisor’s office that the PEB had properly adjudicated the applicant’s case and there was no medical reason to change his reason for separation to physical disability retirement.
The applicant provided a rebuttal to the advisory opinion.  The applicant disagreed with the conclusion of the advisory opinion for the reasons stated in his original application.  His application provided clear evidence of regulatory violations in the MEB and PEB process, which failed to fully describe all of his ailments and their effect on his ability to carry out his normal duties.  He again describes the numerous errors in the narrative summary that did not provide medical documentation required by the applicable regulations.  He also highlights differences between the medical evaluations provided by the Army versus those provided by the DVA.  He also points to the regulatory requirement for all soldiers to pass some form of the APFT but his profiles precluded taking any APFT.  He could not be fit for duty if he is not able to pass the mandatory APFT.  The multiplicity of his ailments required the PEB to evaluate the combined effect of these ailments to reach a fair decision.  There is no evidence in the MEB or PEB process that the combined effect of his medical conditions were considered in the fit for duty finding.

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 a disability incurred while entitled to basic pay.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 38, United States Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating.  Paragraph 3-3a, provides, in pertinent part, that performance of duty, despite an impairment, would be considered presumptive evidence of physical fitness.

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Chapter 61, Title 10, United States Code (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It 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 or her office, grade, rank, or rating.  

It also 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 recommendations to establish eligibility of a soldier to be separated or retired because of a physical disability.

Paragraph 3-1 of Army Regulation 635-40 (standards of unfitness because of physical disability) states, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. 

Paragraph 3-2b (processing for separation or retirement from active service) states that disability compensation is not an entitlement acquired by reason of a 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.

Paragraph 3-2b(2) states that continued performance of assigned duties 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.  In addition, it indicates that the soldier had to be, 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 a disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

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

1.  Notwithstanding the presence of various medical conditions, there is no evidence of record that the applicant suffered from any illness or injury at the time of his voluntary retirement that was of such severity that he was rendered unable to reasonably perform the duties of his office, grade, rank, or rating within the limits of his physical profile.

2.  The applicant’s military service was not interrupted by a physical disability.  From April 1994 through September 1997, the applicant’s raters noted that he achieved the maximum score of the APFT.  His final OER of 30 September 1998, notes that he maintained an appropriate level of physical fitness with superior duty performance and unlimited potential.  All three of the physical profiles issued between April and June 1998 were annotated that no change in MOS or duty assignment was required within the restrictions provided by the profile.  These comments fully support the PEB and PDA findings that he was more than capable of performing his duties.  There is also no evidence of record to indicate that the applicant was or would have been denied additional assignments within the limitations of his profile until his mandatory retirement date.

3.  The applicant’s continued performance of duty raised a presumption of fitness, which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his voluntary separation and retirement.  Although the applicant stated that he expected continued service through 2004 and did not voluntarily enter the physical disability evaluation system, he stated on two occasions during the MEB/PEB process that he did not desire to continue on active duty.

4.  The Board notes the applicant’s contention that the administrative errors, not in compliance with applicable regulations, in completion of the MEB narrative summary, provided for a flawed MEB/PEB.  While the Board accepts that there may have been some details not discussed in the narrative summary to the applicant’s expectations, the Board notes that entire medical history, clinical records, and laboratory findings were provided to the expert panels of the MEB/PEB during the decision process.  Any administrative errors are not considered fatal flaws since the applicant concurred with the findings and recommendation of the MEB and was found fit for duty by the PEB.

5.  The fact that the DVA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the DVA does not compel the Army to modify its decision.

6.  The DVA is not required by law to determine medical unfitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, the applicant's medical conditions, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify him for DVA benefits based on an evaluation by that agency.  Furthermore, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

7.  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 this requirement.

8.  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

__rw___  __pm___  ___kl___  DENY APPLICATION

		    Karl F. Schneider
		    Deputy Assistant Secretary
    (Army Review Boards)

INDEX

CASE ID	AR2000049499	
SUFFIX		
RECON		
DATE BOARDED	20010920	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.