MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:          25 February 2003                   
	DOCKET NUMBER:  AR2002070797

	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:

	Mr. John N. Slone		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Lawrence Foster		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:  Reconsideration of his earlier appeal to correct his  military records by showing that he was retired for physical unfitness. 

APPLICANT STATES:  In effect, that he thought the Board would review his medical records prior to considering his case.  Since the Board was not furnished a copy of his medical records, the Board erroneously assumed that he was medically qualified for retention.  The applicant again lists the medical conditions for which he was treated while on active duty, and describes the medications, treatment, duty limitations, and impact on performance those medical conditions caused or required.  He contends that his evaluation reports cannot be construed to show that he was physically fit to perform his duties.  Those reports rated him for the limited duty he was performing, not for the duties he was supposed to perform or for the repeated absences caused by his medical conditions.  He adds that while he went to the field once, his equipment was carried for him and he remained in the headquarters tent for the duration of the exercise.  As for him not being promoted to pay grade E-6, he questions why he was never considered by a promotion board if he had such great performance evaluations and was personally recommended for promotion by the Commandant of the NCO Academy.  He answers his own question by stating that it was because his physical profile was more restrictive than what was allowed for his military occupational specialty (MOS).

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1999034739) on 22 March 2000.

In support of his request for reconsideration he submits a request from his supervisor for a medical board dated 9 August 1976, wherein it was stated that the applicant was not performing any medical duties due to his physical profiles (the applicant was a medical specialist).  His supervisor continued that the applicant had been on extensive physical profile limitations for 2 years without a break due to a history of low back pain associated with a diagnosis of spondylitis and recurring conflicting diagnoses of Reiter’s Syndrome.  His supervisor added that the applicant had been unable to perform full duties as defined by his MOS, that pain medication had not noticeably decreased his pain nor improved his ability to perform his duties, and that the levels of medications he was prescribed had been so high as to render him unfit to perform any duties for periods up to 72 hours.  His supervisor opined that it was unlikely that the applicant’s medical conditions would allow him to perform at an acceptable level in any MOS.

Also submitted by the applicant is an affidavit from his former wife who chronicles how his medical conditions adversely affected his ability to perform his military duties.  His wife states, “That [the applicant] was sent to several specialist[s] at the Air Force hospital in Wiesbaden, West Germany, who came to the conclusion that [the applicant] was not medically qualified to remain on active duty.  However, instead of being discharged from the service he was reassigned to the 97th General Hospital in Frankfurt, West Germany so as to have better access to medical care and be assigned duties more in line with his duty limitations placed on him by his medical profile.”  The applicant’s former wife concludes that “That I can state with out any doubt that [the applicant] was under medical treatment, was heavily medicated (sedated) and receiving physical therapy up until the time of his discharge from the Army.”

The applicant’s request contains new evidence and argument that require Board consideration.

Army Regulation 635-40, which governs the processing of soldiers under the Disability Evaluation System (DES), Chapter 3, Policies, paragraph 3–1, Standards of unfitness because of physical disability, states the following:

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.

Objectives of standards.  To ensure all soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualifications standards have been established in AR 40–501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer soldiers to a Medical Evaluation Board (MEB).  The major objective of these standards is to achieve uniform disposition of cases arising under the law.  These retention standards and guidelines should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation from the Army.  The fact that the soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness.

Considering the overall effect of disabilities.  The overall effect of all disabilities present in a soldier whose physical fitness is under evaluation must be considered.  The effect will be considered both from the standpoint of how the disabilities affect the soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments.  A soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness. 

Evaluating the soldier’s fitness to perform duties.  All relevant evidence must be considered in evaluating the fitness of a soldier.  Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence.  Thus, if the preponderance of evidence indicates unfitness, a finding to that effect will be made.  For example, when a referral for physical evaluation immediately follows acute, grave illness or injury, the medical evaluation may have the greater weight.  This is particularly true if medical evidence establishes the fact that continued service would be harmful to the soldier’s health or would prejudice the best interests of the Army.  A soldier may be referred for physical evaluation under other circumstances.  If so, evaluations of the performance of duty by supervisors (letters, efficiency reports, or personal testimony) may provide better evidence than a clinical estimate by the soldier’s physician describing the physical ability to perform the duties of the office, grade, rank, or rating.  Thus, if the evidence establishes the fact that the soldier adequately performed the normal duties of his or her office, grade, rank, or rating until the time of referral for physical evaluation, the soldier might be considered fit for duty.  This is true even though medical evidence indicates the soldier’s physical disability to perform such duties may be questionable.  However, inadequate duty performance should not be considered as evidence of physical unfitness unless a cause and effect relationship exists between the inadequate duty performance and the presence of physical disabilities.

Deciding the soldier’s unfitness to perform duties.  Initial enlistment, induction, or commissioning physical standards are not relevant to deciding unfitness for continued military service.  Once a soldier has been enlisted, inducted, or commissioned, the fact that the soldier may later fall below initial entry physical standards does not, in itself, authorize separation or retirement unless it is also established that the soldier is unfit because of physical disability as described above.  Likewise, a lack of special skills in demand, inability to meet physical standards established for specialized duty such as flying, or transfer between components or branches within the Army, does not, in itself, establish eligibility for disability separation or retirement.  Although the ability of a soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness.

In the processing of this case an advisory opinion was obtained from the Army Review Boards Agency (ARBA) Medical Advisor.  The ARBA Medical Advisor lists the medical problems for which the applicant was treated while on active duty, and noted that he was prescribed a schedule II narcotic medication for pain.  The ARBA Medical Advisor continues that the applicant's medical conditions made him eligible for an MEB and, if he was determined physically unfit by a Physical Evaluation Board (PEB), he may have been awarded between a zero and 20 percent disability rating.  The applicant was furnished a copy of this advisory opinion and given an opportunity to respond.  The applicant was also requested to furnish the Board a copy of his Department of Veterans Affairs (DVA) rating decisions.

The applicant responded, stating "My Army health records are totally unavailable and the [DVA] informs me that Volume One of my medical records have been misplaced and are also unavailable.  In addition, my civilian health records for the time period in question are for the most part also unavailable."

The applicant submitted a second rebuttal, with the same date as his first rebuttal.  In this rebuttal the applicant emphasizes that he was not determined medically qualified in his last physical examination in June 1976.  He was placed in physical category "C" and referred to various specialists.  One specialist opined that he required an MEB because he did not appear to be qualified to remain on active duty.  Another specialist opined that he was physically unfit because he was unable to perform in the face of his pain.  

The applicant continues that his 22 April 1976 MEB did not consider whether he was medically qualified for retention.  That MEB was only requested to issue him permanent physical profile limitations.  A subsequent request to have an MEB consider whether he met retention medical qualification standards resulted in his being fitted with a back brace, being heavily medicated with narcotics, and being transferred to another unit.  The applicant then relates how he was referred for psychiatric evaluation because of his depression due to his inability to perform his duties.  The applicant again names the medical conditions he was diagnosed as having while on active duty, and the treatment he was given for those conditions.  The applicant contends that if his military health records were available, they would show that he was continually excused from duty due to being on bed rest or receiving physical therapy.

The applicant reiterates his contention that his performance evaluations did not reflect his ability to perform his duty since he was only rated on the limited duties he was given.  

The applicant also submits excerpts from his military medical record that he has quoted from in his rebuttal.  One entry, dated 6 April 1976, states that "This [patient] deserves and requires a medical board and/or perm[anent] profile.  Recommend change to non-tactical unit or separation if medically unfit for service."  On a DA Form 3349, Medical Condition – Physical Profile Record, dated 22 April 1976, it is stated that "Individual is medically qualified for duty w/permanent assignment limitations."

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 purpose of the DES is to determine whether soldiers who are medically disqualified can perform their military duties with their physical profile limitations.  If a soldier is determined physically fit, the PEB returns him or her to duty with the appropriate physical profile restrictions.  If a soldier is determined physically unfit, he or she is separated due to physical unfitness.
 
2.  The new evidence submitted by the applicant clearly shows that his physical fitness was questioned by his command in 1976 because of his inability to perform his duties.  However, there is no indication that the applicant’s command’s concerns were ignored or overlooked.  To the contrary, the applicant was given permanent physical profile limitations on 22 April 1976 and transferred to a new job that he could perform with his physical profile limitations.  That transfer resulted in his retention on active duty for the duration of his enlistment, a little less than 3 years from the date of that request.  This is confirmed by the statement submitted by the applicant’s former wife.

3.  As such, all indications are that the DES worked exactly the way it was supposed to in the applicant’s case.  

4.  The applicant’s contention that his evaluation reports did not reflect the fact that he was not performing all the duties of his position is probably true.  A soldier is only rated on the duties he or she is assigned, and the applicant was obviously assigned duties he could perform within the scope of his physical profile limitations.  There is no error or injustice in this scenario.

5.  As such, all of the evidence of record would suggest that, if the applicant had been referred to a PEB, he would have been found physically fit and allowed to be discharged at the expiration of his term of service.  The applicant had demonstrated that he could perform duties within his physical profile limitations.

6.  As for his promotion to pay grade E-6, the applicant has not submitted any evidence which would show he was not considered for promotion due to his physical profile.

7.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

___jns___  ____reb _  ___lf____  DENY APPLICATION

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

INDEX

CASE ID	AR2002050416	
SUFFIX		
RECON	AR1999034739	
DATE BOARDED	20020225	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.