MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  26 September 2002
	DOCKET NUMBER:  AR2001063010

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Raymond J. Wagner		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, reinstatement on active duty to at least the pay grade of E-6, effective the date of his separation, without a break in service, with full back pay and allowances including accrued leave.  His first duty station should be in Hawaii since that is where he is now stationed with the Navy.  He also requests that his DD Form 214 (Certificate of Release or Discharge from Active Duty) should be removed from his records or, in the alternative, his reentry (RE) code should be changed to RE-1, his rank and pay grade should be changed to staff sergeant/E-6 (SSG/E-6), and he should be given an award of the Meritorious Service Medal upon his separation for his years of service to the Country.  A statement of non-rated period should also be placed in his records to explain his non-rated time.  His recorded failure of the Senior UAV Operator Course for military occupational specialty (MOS) 96U should be expunged from his records and he should be shown as a graduate of at least Phase I of the course and awarded the MOS 96U.  

APPLICANT STATES:  In effect, that his various requests are based on his unjust and erroneous separation for a “sore toe” which was, in reality, more reprisal from his chain-of-command for his Whistleblower activities.  His chain-of-command had an adverse influence on the Medical Evaluation Board (MEB) and the Physical Evaluation Board (PEB) did not properly adjudicate his case because they were not provided all the required information.  In a 21-page addendum to block 9 (I believe the record to be in error or unjust in the following particulars) of his DD Form 149, he explains why the corrections he is requesting relate to his unjust and erroneous separation.

In support of his application he submits a ten-page list of his 123 enclosures including:

	1)  Dateline NBC Video Tape
	2)  Newspaper Articles
	3)  Government Accounting Office Reports
	4)  Department of Defense Inspector General (DoDIG) Memorandums
	5)  DoDIG Audit Reports
6)  Department of the Army Inspector General (DAIG) Report of 
     Investigation (ROI)
	7)  Army Regulation (AR) 15-6 Investigations
	8)  Correspondence Related to His Whistleblower Activities
	9)  Military Personnel Records
10)  Medical Records
	11)  Statements From Fellow Soldiers

The applicant also submits a 54-page statement outlining the facts and circumstances concerning the alleged errors and injustices that led to his separation by reason of physical disability on 16 July 1998.

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

The applicant enlisted and entered active duty on 3 April 1990 with 2 years prior active duty service.  He was trained as an intelligence analyst in military occupational specialty (MOS) 96B.  He was promoted to pay grade E-4 effective 1 June 1990.  He was released from the Primary Leadership Development Course (PLDC) on 15 June 1992 as a second time failure of the Army Physical Fitness Test.  He successfully completed PLDC on 22 July 1993.  He was promoted to pay grade E-5 effective 1 August 1993.

A 13 September 1995 memorandum concerning a battalion level promotion board at Fort Campbell, Kentucky, shows that the applicant was recommended for promotion to the pay grade of E-6 in the MOS of 96U.

After almost 5 years as an intelligence analyst, he was assigned to Fort Huachuca, Arizona for training in MOS 96U, Unmanned Aerial Vehicle (UAV) Operator.  The class start date is shown as 22 September 1995.  A Fort Huachuca Memorandum, dated 25 June 1996, shows that the applicant was relieved from the 96U Course effective 25 June 1996 based on his requirement to take permanently prescribed medications that prevented his safe operation and training in the program.  An Academic Evaluation Report (AER) was prepared on 26 June 1996 and shows that he was administratively removed from Phase I of the 96U Course for medical reasons.

On 9 January 1998, a corrected AER was prepared to show that he achieved course standards for Phase I of the 96U Course on 1 April 1996.  On 15 January 1998, a second AER was prepared to show that he was administratively removed from Phase II of the 96U Course, effective 25 June 1996, for medical reasons.  A Total Army Personnel Command (PERSCOM) Memorandum, dated 30 July 1996, directed that the applicant be reclassified from MOS 96U back to MOS 96B without additional training required.  The memorandum also directed that MOS 96U would be withdrawn and not awarded as a secondary or additional MOS based on his failure to achieve course standards.  Although the memorandum incorrectly states that he failed to achieve course standards, this memorandum is not in his Official Military Personnel File (OMPF) and his AER correctly identifies the reason for removal from the 96U Course.

The applicant attended the Basic Noncommissioned Officer Course (BNCOC) for MOS 96B starting on 8 October 1996.  Course completion was scheduled for 11 December 1996.  Effective 21 November 1996, an AER was prepared which shows that he was removed from BNCOC after 6 weeks of attendance.  The report shows that he failed to achieve course standards by failing an examination and a subsequent retest.  The report also states that he lacked the technical and tactical knowledge of a skill level 3 NCO and should be returned to the course after retraining on basic skill level tasks.
On 7 December 1996, the applicant was reassigned to Headquarters and Headquarters Company, 304th Military Intelligence Battalion as an intelligence NCO.

On 24 April 1997, a Medical Corps captain provided a memorandum to the company commander at the Military Intelligence School where the applicant had been removed from MOS 96U training for medical reasons.  The memorandum states that the applicant had been treated with two medications for low back pain diagnosed as Reiter’s disease.  That diagnoses had been excluded and he was no longer on medications.  The memorandum went on to state that the applicant had been cleared of serious back ailments, was in good health, and should be given every consideration for training and promotion.  There are no medical records in the available record for this time period.

An 8 May 1997 memorandum shows that the applicant was still eligible for promotion to pay grade E-6 but it could not become effective because he had not met the requirement of completion of BNCOC.

On 3 June 1997, the applicant’s commander requested conditional award of MOS 96U to the 24 students who had been in training for MOS 96U.  The request was approved on 21 July 1997, however; the applicant had already been removed from training, effective 25 June 1996, and his MOS had been changed at the direction of PERSCOM to MOS 96B effective 30 July 1996.

On 17 July 1997, the hospital Deputy Commander for Clinical Services (DCCS) approved the applicant’s profile of 1,2,3,1,1,1 based on mechanical low back pain.  There were no assignment limitations listed and he was assigned the alternate aerobic event of the 2½ mile walk.  The form was annotated that an MEB had not been initiated.  The profiling officer was a Medical Corps major.  The applicant contends that this Medical Corps major later illegally interferes with his MEB and PEB process.  The physical profile does not show the action by the unit commander nor is it signed or dated.

The Army Training Requirements and Resources System (ATRRS) shows that the applicant had a BNCOC reservation request in the system for a 4 August 1997 start date.  ATRRS shows that a quota was not available for the applicant for that class and he was not scheduled to attend.  ATRRS also shows that he did have a reservation on 15 September 1997, for BNCOC with a start date of 6 January 1998.  This BNCOC reservation would later be cancelled by regulatory guidance due to the applicant’s MEB/PEB processing.

A 16 September 1997 Memorandum Subject:  Summary of MOS/Medical Retention Board Proceedings, states that a MOS/Medical Retention Board (MMRB) convened on 27 August 1997.  The applicant appeared before the board and all records and reports were reviewed.  The board found that the applicant performed all duties required of his MOS and his profile limitations did not preclude satisfactory performance in his MOS in a worldwide field environment.  The MMRB recommended that the applicant be retained in his MOS.  The Medical Corps member of the MMRB, who also approved the physical profile of 17 July 1997, will be shown reviewing the applicant’s objective medical evidence at a later date.  On 21 September 1997, the convening authority, a major general, approved the findings and recommendations of the MMRB.  The approval endorsement went on to state that the MMRB served as a final determination of the applicant’s deployability in his MOS and would not be superseded unless appropriate medical authorities determined that his medical condition had deteriorated, or upon direction by the Department of the Army.

A change of rater NCO Evaluation Report was prepared in July 1997 for his duties for 3 months as Test Control NCO for the 111th Military Intelligence Brigade.  This report shows that he passed the Army Physical Fitness Test (APFT) in March 1997.  The senior rater noted that he should attend BNCOC and be promoted upon successful completion.

On 24 October 1997, a Medical Corps Colonel, Chief of Orthopedic Services, prepared an orthopedic evaluation.  The evaluation states, in pertinent part, that the applicant had presented himself with complaints of intermittent back pain upon forward bending or heavy lifting with occasional severe episodes.  He had obtained some relief from chiropractic manipulations and daylong bed rest.  A Magnetic Resonance Imaging (MRI) examination demonstrated no abnormalities in the disks.  Reiter’s disease had been ruled out.  The applicant also noted that he had pain in his great toe of the right foot.  The evaluation noted that the applicant’s back and foot problems limited his performance in a number of activities.  He had difficulty running and jumping but could walk at his own pace and distance.  He could not walk sufficiently fast to pass the alternate APFT event.  Bicycling and swimming also aggravated his back pain.  The final evaluation impressions were: 1) Traumatic arthritis of the right metatarsophalangeal joint, 2) Myofascial syndrome resulting in thoracic and lower lumbar back pain.

The Chief of Orthopedic Services recommended the applicant for a MEB and PEB with the further recommendation that the applicant was not fit for retention.  It was noted that various treatments provided temporary relief but in the long term he could expect to have recurrent episodes, which would prevent him from caring out a successful military career.  The doctor further noted that the profile restrictions imposed should include restrictions from strenuous activities including the Army Physical Fitness Test (APFT) or any of the aerobic alternative activities.

The resulting physical profile issued on 24 November 1997, noted conditions of painful right foot and back with a serial profile of 1 3 3 1 1 1.  The two 3s in the profile were for upper and lower extremities limitations.  The required three doctors signed the physical profile.  On 25 November 1997, the Chief, Department of Surgery, issued a Medical Board Addendum to discuss an additional issue of a possible hernia.  The addendum discussed the examination and exploratory surgery based on the applicant’s repeated complaints of pain in the upper abdomen.  Although a slight defect was detected, no specific hernia was identified.  In follow-up visits the applicant continued to complain of pain in the same area and an upper GI was performed.  No abnormality was found.  Based on the continuous complaints of pain in the same area the applicant was scheduled to be seen at the Pain Clinic.  The surgeon noted that there was no defect identified that could be attributed to his pain in that area.

The unit commander signed the physical profile on 3 December 1997.  The copy present in the available record does not indicate any further action by the commander.  On 19 November 1997, this same unit commander had prepared a Commander’s Performance Statement in support of the applicant’s referral for a PEB.  This commander noted that the applicant had performed his duties at the Foreign Language Center for the previous 8 months.  His physical limitations had not impaired his ability to perform his assigned duties.  Effective 12 January 1998, the applicant was reassigned to a different military intelligence company to perform duties associated with continuous learning.

A 2 March 1998 Report of Medical History was prepared by the applicant in support of his MEB.  On the report the applicant writes that he has arthritis in both feet, knee problems, his left elbow hurts, his back hurts constantly, he cannot breathe through his nose, he has sinus problems, his eyes water in bright sunlight, his jaw pops out, his wrist hurts, and he is in poor health.  He marks “Yes” to 33 ailments listed on the form including, coughed up blood, bled excessively after injury or tooth extraction, swollen or painful joints, frequent or severe headaches, dizziness or fainting spells, eye trouble, ear, nose or throat trouble, hearing loss, chronic or frequent colds, head injury, shortness of breath, pain or pressure in chest, palpitation or pounding heart, cramps in legs, frequent indigestion, tumor, growth, cyst, cancer, arthritis, bone joint or other deformity, lameness, painful or trick shoulder or elbow, recurrent back pain, trick or locked knee, foot trouble, paralysis, and motion sickness.

The Report of Medical Examination in support of the MEB resulted in notes that the applicant had reduced strength in his right leg at flexion, mid-back myofascial syndrome, lower back degenerative disc disease, osteoarthritis in both first toes, knee pain in both knees, and a mild high frequency hearing loss.  Chronic sinusitis was ruled out.  A further ear, nose, and throat evaluation was recommended.  This examination also resulted in a serial profile of 1 3 3 1 1 1.    The approval authority for the physical profile was the hospital DCCS, the same officer that had been the MMRB medical officer board member.

A Narrative Summary (NARSUM) was prepared on 17 March 1998 in support of the MEB.  The NARSUM restates the orthopedic evaluation of 24 October 1997 and provides additional history of pain in the area of the incision for the exploratory hernia surgery.  It was possibly caused by a tumor formed in the scar.  The doctor noted the knee pain syndrome, chronic congestion, sinusitis, and intermittent elbow pain.  The applicant had also described wrist pain but no evaluation had been done at that time.  The doctor also noted evaluation for chest tightness on exertion, which was discussed in a 7 April 1998 addendum from the Internal Medicine Clinic.  The NARSUM concluded with the following seven diagnoses:

1) Thoracic and lumbar back pain
2) Bilateral foot pain with traumatic arthritis of the right great toe
3) Noncardiac chest pain
	4) Abdominal incision tumor
	5) Bilateral knee pain
	6) Chronic sinusitis
	7) Internal left lateral elbow pain

The doctor stated the applicant’s functional status as limited from doing repetitive activities, marching, heavy lifting, running, and walking any significant distance.  The doctor concluded that the applicant did not meet retention standards and should be referred to a PEB.

The Total Army Personnel Command (PERSCOM) prepared a memorandum on 23 March 1998, which states that the applicant’s fractured right foot sustained in July 1991 was “IN LINE OF DUTY.”

The doctor that prepared the NARSUM wrote a separate MEB note on 24 March 1998 concerning modified footwear.  The Chief of Orthopedics had provided the applicant a podiatry consultation to investigate use of a customized boot authorized for wear with the uniform.  The applicant said he would find out if his MOS personnel would allow continuation in his MOS with the modified boot.  The doctor stated that the applicant would return to the clinic in a few days and proceed with the MEB and/or proceed with the podiatry consult.

The 7 April 1998 internal medicine addendum for the MEB states that he had been seen in December 1996 for chronic back pain and was recently seen for evaluation of chest pain on 24 March 1998.  The applicant had related that his mid to lower back pain had been occurring daily since 1990.  His spinal x-rays had revealed only minimal degenerative joint disease at two levels and mild scoliosis.  Subsequent bone scan and MRI were negative.  The applicant was evaluated for chest tightness on exertion by treadmill testing.  His heart rate and blood pressure were normal without reproduction of his chest pain.  This addendum noted a diagnosis of mechanical back pain and noncardiac chest pain, which would likely resolve without further treatment.

On 13 April 1998, the applicant’s commander since January 1998 prepared a memorandum for the MEB.  The commander notes that the applicant was informed that an MEB would evaluate his physical ability to perform in his MOS based on the limitations of his permanent physical profile.  The commander states that the applicant’s physical limitations detrimentally affect his ability to perform as an NCO in his MOS.  He cannot participate in physical training or take the APFT.  He is not able to attend BNCOC without passing the APFT and career progression and retention are not possible without BNCOC.  His physical limitations prevented him from assignment to tactical units.  He could perform some but not all technical tasks of his MOS and none of the physical tasks.  The applicant had done his best to comply with medical treatment but the commander believed he should not be retained on active duty.

An untitled and unnumbered form, which appears to have been completed during the MEB process by the Physical Evaluation Board Liaison Office (PEBLO), contains entries related to the modified boot.  A 4 March 1998 entry states that the doctor was going to order boot inserts and a statement that another doctor was concerned and wanted to speak to the Deputy Commander for Clinical Services of the hospital.  The PEBLO notes that the applicant was asked for his records.  A 5 March 1998 entry shows that the applicant called to request the boots and continue with the MEB at the same time.

A 14 April 1998 Routing and Transmittal Slip from the PEBLO to the doctor who prepared the NARSUM appears to show a note from the doctor stating that the old profile is OK and that a “Soft Shoe Permanent Profile is Apparently Invalid.”

A Medical Corps captain from the Aviation Medicine Clinic prepared a 16 April 1998 memorandum for the PERSCOM office of the Inspector General (IG) requesting an exception to policy for the applicant to undergo a trial of duty in his current MOS using modified footwear.  He stated that the applicant had good results with commercial “High Tech Boots” and should be able to complete full duties of his MOS using modified footwear.  The doctor notes that the modified boots were not currently authorized footwear but they looked very similar to other authorized footwear.  He recommended the applicant be granted an exception to policy to wear the “High Tech Boots” since he had been in the Army for 10 years and had performed well in all his duties.  It is not clear from the evidence of record why this memorandum was sent to the PERSCOM IG and there is no evidence of a reply to the memorandum.

A Chronological Record of Medical Care, dated 16 April 1998, from the same doctor noted above, shows that the applicant requested a letter from the doctor stating that he had problems with both feet and needed an exception to policy to wear different footwear.  Additional comments of 22 April 1998 shows notes concerning the applicant’s arthritis in both feet and that he was unable to wear issue boots.  It was recommended that special measurement shoe gear and black combat boots with crepe soles be ordered.

The MEB was conducted on 16 April 1998.  The form shows that the applicant did present views in his own behalf.  The MEB determined that the applicant had three disqualifying conditions: 1) Thoracic and lumbar back pain; 2) Bilateral foot pain, traumatic arthritis of right great toe; 3) Noncardiac chest pain.  All three were noted to have been incurred while entitled to base pay and permanently aggravated by service.  Four other conditions were noted as meeting retention standards: 1) Abdominal incision tumor; 2) Bilateral knee pain; 3) Chronic sinusitis; 4) Internal left elbow pain.  The MEB recommended the applicant be referred to a PEB.  The applicant checked and initialed that he did not desire to continue on active duty.  The MEB findings and recommendations were approved on 20 April 1998.  (Note:  The approval authority for the MEB was the hospital DCCS and the same officer that had been the MMRB medical officer board member.)

On 27 April 1998, the applicant submitted a memorandum addendum to the MEB NARSUM and the MEB.  He stated that he agreed with the findings and diagnosis of the MEB but wanted to clarify an issue in the NARSUM.  He stated that he did have severe degenerative arthritis of the right foot and bilateral foot pain with the right being worse than the left.  He wanted to add that the left foot pain was also caused by degenerative arthritis, but not as severe as the right foot.  The applicant agreed with the MEB findings and recommendation and signed the MEB form on 28 April 1998. He made no comments on the possible use of “High Tech Boots” to attempt to remain on active duty.

A DA Form 5893-R (PEBLO Counseling Checklist) was prepared by the PEBLO and initialed and signed by the applicant.  The form is used to assist and document physical disability counseling.  The applicant initialed in all applicable boxes and signed the form on 27 April 1998.

A PEB Referral Transmittal Document prepared by the PEBLO on 28 April 1998, shows the documents she provided to the PEB.  The MMRB is not listed as an enclosure to the PEB.

On 30 April 1998, the President of the applicant’s PEB returned the case to the PEBLO for further clarification of the applicant’s profile.  The PEB wanted to know why the applicant was unable to perform any alternate APFT events and the medical reasons for that position.

The Medical Corps colonel who was the chief of orthopedic surgery again reviewed the medical evidence and met with the applicant to discuss his physical condition.  In his response to the PEB, the doctor notes that he had reviewed all the objective medical evidence and believed that his clinical evaluation of 27 October 1997 and the 8 April 1998 assessment by the rheumatologist indicates the current medical situation of the applicant and indicates a thorough review of the applicant’s medical history and condition.  The doctor still believed that the applicant had traumatic degenerative arthritis of the right great toe plus a chronic pain condition of the back.  The back pain was most likely a non-inflammatory process such as myofascial syndrome (chronic pain in the muscle tissues).  He stated that a more serious degenerative or arthritic process could not be entirely excluded, but that there were few objective findings to support that diagnoses at that time.

The doctor relates in his discussions with the applicant that the applicant’s symptoms were unchanged from the prior evaluation.  He was not able to run or jump due to exacerbation of pain in the back and both great toes.  Bicycling and swimming were easier on the feet but aggravated his back pain to the extent that he could not train to meet APFT standards.  Walking rapidly also caused pain in the back and right great toe.

The doctor noted that it was difficult to assign a degree of impairment since there was no way of measuring the amount of pain an individual experiences.  There had been very little variation found in the applicant’s examinations.  If the applicant reports having pain that is too severe to exercise beyond a certain level, there was very little way to contest the veracity of the statement unless the applicant demonstrated inconsistent behavior at different times.

The doctor went on to state that there was no procedure or treatment that could restore the right foot to full function.  He could not make a strong correlation between continued strenuous use of the back and objective degeneration or physical adverse effects.  However, it would be disingenuous to issue a physical profile that the applicant could not consistently perform due to pain in a body part.  He concluded that the permanent physical profile issued in December 1997 remained appropriate.

The PEB was conducted on 18 May 1998.  The PEB Proceedings show that the applicant was found physically unfit for degenerative arthritis of the right great toe manifested by pain and radiological evidence of narrowed joint space.  The pain was considered chronic, unresponsive to conservative measures, and significantly limited walking.  His disability was rated for pain at zero percent.  The PEB determined that his back pain and non-cardiac chest pain were not unfitting and not ratable.  The PEB recommended separation with severance pay.
On the second page of the PEB Proceedings the applicant initialed that he did not concur with the PEB recommendation but waived a formal hearing.  He also initialed that his written appeal was not attached.  The applicant signed this election of options on 18 May 1998.  The form also contains a handwritten note from the applicant’s PEB counselor.  The note states that the applicant requests 20 days of permissive temporary duty.

A 20 May 1998 Physical Disability Agency (PDA) Worksheet shows that the PDA reviewed the notice of disagreement by the applicant.  The PDA review concurred with the original PEB findings and recommendation.  A note on the bottom of the worksheet that is not attributable to a specific PDA member states that one member thought that the applicant’s back pain was unfitting, but severance pay was still appropriate.

A 21 May 1998 memorandum from the PDA to the applicant notified him of the results of the PDA review.  The applicant was informed that his entire case file was reviewed and the PDA determined that the PEB properly adjudicated his case, correctly applying the rules in making its determination.  The PEB findings and recommendations were supported by substantial evidence and were therefore affirmed.  The applicant was also informed that the Physical Disability Evaluation System (PDES) may only compensate a soldier for service connected or permanently aggravated conditions that caused their separation and only for the degree of impairment at the time of separation.  He was notified to contact the Department of Veterans Affairs (DVA) for continued service-connected medical care and additional disability ratings.

A 28 May 1998 NCOER for eleven rated months as a test control NCO states that he did not pass the last APFT because of a physical profile that was issued in December 1997.  Rater comments state that his profile did not hinder his duty performance.  His senior rater recommended he be sent to BNCOC and further assigned as a tactical intelligence NCO.

On 2 June 1998, the applicant received a response from the PERSCOM IG concerning his 7 January 1998 IG Action Request on improper awarding of MOS 96U and improper promotions in MOS 96U.  The IG substantiated his allegation that soldiers were improperly awarded MOS 96U.  It was noted that he was not adversely impacted by the improper conditional awarding of MOS 96U since he had been reclassified to a different MOS on 30 July 1996.  The improper promotion allegation was not substantiated based on the conditional award of the MOS.  The promotions remained valid contingent upon completion of all phases of training.

Orders issued on 9 June 1998, notified the applicant that his scheduled separation date was 16 July 1998.  He was authorized disability severance pay and 20 days PTDY effective 27 June 1998.  Effective 16 July 1998, the applicant was separated in pay grade E-5 under authority of Army Regulation 635-40, paragraph 4-24B(3) by reason of physical disability.  He had 10 years, 3 months, and 14 days creditable service.  His Reentry (RE) Code is shown as “3”.  He was authorized disability severance pay in the amount of $33,714.  There is no evidence of record that the applicant was recommended for or awarded an award for meritorious service for his performance of duty upon his separation from active duty.

On 20 October 1998 the DoDIG provided the applicant a response to his 6 June 1997 allegations of reprisal for protected communications by his chain of command.  The response stated that the Army IG investigated his allegations of reprisal and substantiated two allegations and did not substantiate four other allegations.

The ROI prepared by the Army IG notes that an earlier IG investigation at the installation level had substantiated that the applicant’s first sergeant had reprised against him in 1996 after the applicant had visited the IG.  The first substantiated allegation was that his company commander had improperly referred him for a mental health evaluation in violation of DoD Directive 6490.1.  The second substantiated allegation was that his company commander, first sergeant, and platoon sergeant gave him counseling statements in reprisal for filing complaints, in violation of the Military Whistleblower Protection Act.

The unsubstantiated allegations were that the applicant was given an adverse NCOER in reprisal for making a protected communication (the NCOER was later found not to be administratively correct and never accepted or placed in his files); that he was improperly denied a request for transfer in reprisal for making a protected communication; that he was improperly denied an appeal to remain in BNCOC in reprisal for making a protected communication; and that he was denied or was delayed in training for attendance at BNCOC in reprisal for making a protected communication.

The ROI concluded with four recommendations: 1) The applicant should appeal to this Board for an opportunity to complete training in another MOS; 2) Consider appropriate action against responsible management officials; 3) Remove all retaliatory counseling statements from the applicant’s files; and 4) That the ROI be approved and the case closed.  On 3 May 1998 the Army IG approved the ROI.

A review of the applicant’s Official Military Personnel File (OMPF) revealed that none of the documents prepared in reprisal are now contained in his OMPF.

On 28 March 2000, the applicant completed a Report of Medical History at the Phoenix, Arizona, Military Entrance Processing Station (MEPS) for the purpose of enlistment in the Army.  He listed his present health as “GOOD” and that he was not on any medications.  Two years after he reported 33 separate health problems on his MEB report of medical history he now lists six health issues including swollen or painful joints, pain or pressure in chest, broken bones, rupture or hernia, arthritis, and recurrent back pain.

On the back of the form the applicant listed his July 1998 medical discharge.  The physician’s summary from interview with the applicant resulted in remarks matching the six health issues identified by the applicant as follows: 1) For swollen or painful joints the doctor wrote that the pain was temporary, caused when the applicant hit his foot against a curb as he stepped on a sidewalk, and he was OK now; 2) For pain or pressure in chest the doctor wrote OK now; 3) For broken bones the doctor wrote fractured toe, OK now; 4) For rupture or hernia the doctor wrote abdominal hernia without a further comment; 5) For arthritis the doctor wrote arthritis right foot, followed by several indistinguishable words, followed by just weak spot OK now; 6) For back pain the doctor wrote pain walking 20 miles with 100 pound pack OK now, no trouble.  The doctor added that the applicant had no psychological problems.

On the doctors Report of Medical Examination he noted the applicant’s abdominal scar from the hernia repair and that the applicant’s back problems were OK now.  He was found qualified for enlistment with a serial profile of 
1 1 1 1 1 1, physical category A.  A facsimile transmittal from the Army Recruiting Command to the applicant notes that he passed his physical examination for Regular Army enlistment but that alone would not have allowed him to join the Army.  Army regulations require any prior service applicant to obtain a medical waiver if they were previously discharged from any service for medical reasons.  Although no enlistment documents are available, the applicant is currently serving in the Navy in pay grade E-5 as an intelligence specialist.

In the processing of this case an advisory opinion was obtained from the Army Review Boards Agency Medical Advisor.  The opinion noted that regardless of the outcome of possible use of specially made boots his inability to participate in the APFT would still exist.  The contention that a Medical Corps major, that was not allowed to practice medicine, prevented him from participating in a trial with special boots was not supported by the available facts.  The fact that he was allowed to enlist in the Navy does not invalidate his prior separation from the Army by reason of physical disability.  The applicant was provided a copy of the advisory opinion for possible comment or rebuttal.

In March 2002, the applicant waived his right to have his case before this Board completed within 180 days as required by regulation.  He was requesting additional time to gather additional facts and evidence to support his case and prepare his rebuttal.  Additionally, he requested assistance from the Board in obtaining additional information from the PDA.  The Board forwarded several issues to the PDA on behalf of the applicant.  The PDA responses to these issues were provided to the applicant for his use and possible comment.  The applicant requested and was provided an extension of time to provide additional information to the Board until 31 May 2002.  On or about 15 June 2002, the applicant’s rebuttals were received by the staff of the Board.

In his 22-page rebuttal with 25 enclosures the applicant rebuts the ARBA medical advisory opinion.  The rebuttal contains many of the same contentions and documents provided with his original application.  He provides evidence that he passed one alternate aerobic event of the 2½ mile timed walk on 11 February 2002 for the purpose of rebuttal for this Board.  He contends that this disproves the advisory opinion concerning his likely inability to participate in the APFT if he had the opportunity for a successful trial of special made boots.  The applicant also points out that the opinion is incorrect concerning his qualifying for Navy service does not equate to being found fit by the Army.  His MEPS physical that he passed was for Army enlistment.  The applicant states that the proof of interference by the Medical Corps major, who prevented his trial with special boots when he was not even authorized to practice medicine, is shown in the handwritten notes from the PEBLO and widely known information that the major did not have a state license, which new rules required.  The major was involuntarily released from active duty in February 2000.

The applicant goes on to state that it was this same Medical Corps major that initiated the MEB action only 30 days after he had been found fit by the MMRB, but the MEB doctor of record was changed to a Medical Corps captain.  The MEB should never have been started because his medical profile was not changed until after his MEB physical in violation of Army regulations.  Additionally the results of the MMRB were never made part of his official records and were not provided to the PEB as required.  The fact that he was found fit for duty by the MMRB with a favorable commander’s performance statement and that he has proven that he is fit for duty now shows that he should not have been found unfit for retention for a sore toe rated at zero percent.  He believes that the PEB did not properly adjudicate his case based on the proper preponderance of evidence.

The applicant also believes that the absence in the NARSUM of his recommended trial of special boots by several doctors adversely effected the PEB decision.  Army Regulation 635-40, paragraph 4-11, states that the NARSUM is the heart of the disability evaluation system.  Incomplete, inaccurate, misleading, or delayed NARSUMs may result in injustice to the soldier or to the Army.  The history of the soldier’s illness, objective findings on examination, results of x-ray and laboratory tests, reports of consultations, response to therapy, and subjective conclusions with rational must be addressed.  A correlation must be established between the soldier’s medical defect and physical capabilities.

Army Regulation 40-3 provides for the issue of orthopedic footwear including athletic footwear.  Such footwear would likely have allowed him to pass an alternate aerobic event and pass the APFT.  He goes on to state that he signed the MEB findings and recommendation because he was pressured to sign it in agreement.  He also felt that this would give him more time during the PEB process for the IG to complete the investigation of reprisals for his whistleblower activities and he would also be found fit for duty by the PEB when they saw the MMRB with a favorable commanders performance statement.  He also provides a statement from a former fellow soldier who explains the problems he saw with the applicant being able to receive the proper NCOES training.

In his 34-page rebuttal to the response to his questions by the PDA, the applicant also provides 13 additional enclosures.  Although the applicant addresses this 22 March 2002 document as an advisory opinion the PDA did not provide this document as an official agency advisory opinion.  This document was a response to several questions provided by the applicant through this Board to assist him in obtaining additional evidence to support his case.

The applicant asked the PDA if the results of his MMRB should have been provided to the PEB.  The PDA stated that the MMRB would not be pertinent information needed to adjudicate a PEB.  It would not have been a normal part of the PEB case file since it was not the earlier MMRB findings that resulted in the applicant’s referral to the PEB in question.  It would not be inappropriate for a physician to begin an MEB on a soldier who had a previous favorable finding by an MMRB if it was felt that the soldier’s physical condition was infringing on his duty performance.  The PDA believes that the applicant could have provided his MMRB as additional evidence when he disagreed with the PEB results.

The applicant responds, in effect, that a Medical Command (MEDCOM) Training Guide on Disability Processing states that the PEBLO is responsible for gathering and compiling all of the documents required by the PEB.  He believed that it was already part of his PEB packet.  There is no opportunity for the soldier to provide additional information directly to the PEB.  The PEBLO should have provided this important document to the PEB and failed to do so.  He should not be held accountable because it was missing.

The applicant asked the PDA if the positive commander’s performance statement from his previous commander should have been provided by the PEBLO to the PEB.  It showed that he could perform his duties without physical limitations.  The PDA response, in effect, was a restatement of their opinion that the applicant could have presented this document when he disagreed with the PEB results.  That statement had been overcome by a more recent letter and would not normally have been a part of the PEB file provided by the PEBLO.  This statement was provided by his previous commander, not the commander at the time of his MEB and PEB.

The applicant responds, in effect, with the same contentions concerning his MEB issue.  The regulation allows for “commander’s letters” and both letters should have been provided to the PEB by the PEBLO.  The first letter would have shown that he had been previously found able to perform his MOS duties.

The applicant made a statement to the PDA that the possible use of special footwear to see if he could return to full duty was not included in the NARSUM and it was not mentioned in the NARSUM addendum back to the PEB.  The fact that he was not allowed the use of orthopedic footwear violated Army Regulation 40-3 because he was not allowed optimum medical care prior to the MEB/PEB.
The PDA response was that the trial with orthopedic footwear was only mentioned as a possibility and it remained unclear from the evidence provided if the footwear at the time was authorized.  The request for a waiver to conduct the trial supports that conclusion and what the response to that request was remains unknown.  There is no evidence to support a change in the PEB findings at the time based on such a trial.  The PDA response also notes that the applicant prepared an addendum to the NARSUM concerning his foot pain but made no mention of a possible trial with orthopedic footwear.

The applicant’s response points out the regulation again allowing for a rehabilitative phase of treatment prior to conducting a MEB/PEB.  Orthopedic footwear is medical care that should be completed and evaluated prior to a physical disability determination.  Regulations allow for a temporary profile for up to 1 year yet he was boarded out of the Army with a zero percent disability in one toe.  Again the MEDCOM Training Guide on Disability Processing states that soldiers are to be referred into the PDES as soon as the probability that they will be unable to return to full duty is ascertained and optimal medical treatment benefits have been attained.  He again states that the Medical Corps major, who was stopped from practicing medicine, prevented the trial with orthopedic footwear.  Obviously, optimal medical care was not achieved.

The applicant states to the PDA that Army Regulation 635-40 states that incomplete, inaccurate, misleading, or delayed NARSUMs may result in an injustice to the soldier or the Army.  All relevant evidence must be considered in evaluating the fitness of a soldier including the history of the soldier’s illness, objective findings on examination, reports of consultation, response to therapy, and subjective conclusions with rationale must be addressed.  The PEB was not informed by the PEBLO that he had been seen at the podiatry clinic and had been prescribed orthopedic footwear to see if he could walk and do physical training without discomfort.  The doctors familiar with his case supported a trial with special shoes but the chain of command protested this trial.

The PDA response again noted that a trial with special footwear appears to have been mentioned as only a possibility as an option.  There was no evidence presented that the applicant pursued this course of action.  The applicant did not mention these efforts in his addendum to the MEB NARSUM nor in his disagreement with the PEB.

The applicant responds to the PDA comment, in effect, that the 16 April 1998 memorandum was only requesting a temporary waiver for the boots he had purchased and had been wearing with good results according to the memorandum.  The addendum to the NARSUM by the examining physician mentions the podiatry visit for boots that were authorized for wear with the uniform.  He was denied optimum medical care and provided no rehabilitation phase of treatment.

On 27 August 2002, the applicant provided a PERSCOM message concerning suspension of voluntary separations from active duty of selected officer and enlisted specialties.  The applicant stated that the purpose of providing the message to the Board was to show the advantage to the Army by allowing him to return to active duty with the Army because his specialty of intelligence analyst is listed in the message.  He currently works as an intelligence specialist in the Navy and his specialty is needed by the Army.

The DOD Directive Number 7050.6, dated 20 November 1989, as amended in reissued versions, dated 3 September 1992, 12 August 1995, and on 23 June 2000, cover the Military Whistleblower Protection Act provisions contained in Title 10 of the United States Code, section 1034 (10 USC 1034).

The foregoing directive indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization.

The directive also provides that a member or former member of the Armed Forces who has filed an application for the correction of military records alleging reprisal for making or preparing a protected disclosure may request review by the Secretary of Defense of the final decision on such application.  The request for review must be in writing and include the member’s name, address, telephone number, copies of the application to the Board and the final decision of such application, and a statement of the specific reasons that a member is not satisfied with the decision.  A member or former member of the Armed Forces must file the request for review of the final decision within 90 days of receipt of the decision.  The decision of the Secretary of Defense is final.  Requests based on factual allegations or evidence not previously presented to this Board shall not be considered.  New allegations or evidence must be submitted directly to the Board for reconsideration under procedures established by the Board.

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.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Army Regulation 40-501, paragraph 3-3, 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.  Chapter 3, provides standards for medical retention.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.  Paragraph 3-14b states that soldiers with arthritis due to trauma, when surgical treatment fails or is contraindicated and there is functional impairment of the involved joint so as to preclude the satisfactory performance of duty, will be referred to an MEB.

Army Regulation 635-40 establishes the Army PDES 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 or her office, grade, rank, or rating.  Paragraph B-8 provides the policy for analogous ratings.  “When an unlisted condition is encountered, it is rated under a closely related disease or injury in which not only the functional but the anatomical localization and symptomatology are closely analogous.”  Paragraph B-24 provides ratings for arthritis and pain conditions rated by analogy to degenerative arthritis, Code 5003.  “Often a soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  Inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.”  “Rating by analogy to degenerative arthritis as an exception to analogous rating policies (para B-8) may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.”

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  However, this may change if the soldier is transferred to another position in which he has significantly different duties.  For example, a nurse who is assigned to an Army Medical Center may be determined physically fit with degenerative disc disease since his or her duties are carried out in a controlled, structured atmosphere.  If that nurse is reassigned to an infantry division, he or she may quickly be determined to be physically unfit because his or her duties now involve the physical movement of heavy equipment in the field as well as the requirement to physically move patients.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career.

A PDA policy memorandum, dated 6 December 1999, codified guidance on rating for pain previously provided to physical disability adjudicators through various forms of instructions.  The memorandum states that pain is ubiquitous, subjective, and cannot be measured objectively.  The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) does not provide a separate rating code for pain, but incorporates pain as part of the overall percentage rating for a particular VASRD code.  According to the American Medical Association (AMA) the intensity and frequency of the pain are of paramount importance in the estimation of impairment of pain.  The AMA provides a guide to define the intensity of pain.  Minimal is defined as pain that is annoying but has not been documented medically to have appreciably diminished an individual’s capacity to carry out daily activities.  Slight is defined as pain that is tolerated by the individual but has been medically documented to cause diminution in an individual’s capacity to carry out some specified daily activities.  Moderate is defined as pain that has been documented medically to result in extensive diminution in an individual’s capacity to carry out the activities of daily living.

The AMA guide to frequency of pain defines Intermittent as pain that has been documented medically to occur less than one fourth of the time the individual is awake.  Occasional is defined as pain that has been documented medically to occur between one fourth and one half of the time the individual is awake.  In the adjudication of rating for pain, one or more conditions that are manifested essentially by pain will be rated for the totality of the manifested pain under the VASRD code analogous to 5003 using the rating grid provided.  The number of sites of pain does not determine the rating.  Pain in both feet and the spine of moderate intensity and occasional frequency would be rated the same as pain in one foot of moderate intensity and occasional frequency.  The grid shows that all Minimal intensities, regardless of frequency provide a rating of zero percent.  The Slight intensity designation with either Intermittent or Occasional frequency also provides a rating of zero percent.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  An RE Code of “3” is appropriate when the narrative reason for separation is listed as “Disability, Severance Pay.”  This code applies to persons not qualified for continued Army service, but the disqualification is waivable.

Army Regulation 600-8-22 provides the policy concerning individual military awards.  The regulation provides, in pertinent part, that the primary requirement for award of a decoration is that a formal recommendation be prepared and introduced into official military channels within 2 years of the act, achievement, or service to be recognized.  The sole exception to the 2-year time limit occurs when there is conclusive evidence that a formal recommendation was submitted but was lost, or through inadvertence was never acted on by proper authority.  Additionally, the regulation also provides that there is no automatic entitlement to an award upon departure either from an assignment or from the service.

The Noncommissioned Officer Education System (NCOES) at PERSCOM has provided information in previous cases concerning the linkage of BNCOC to promotion to pay grade E-6 during the time period in question.  The PERSCOM noted that successful completion of BNCOC became a prerequisite for promotion to pay grade E-6 effective 1 October 1992.  Conditional promotions to pay grade E-6 of soldiers who met the cut-off scores for their MOS was not effective until 1 June 1999.

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(s), it is concluded:

1.  The Board supports the DoD policy of unrestricted communication with Members of Congress and Inspector General offices, as well as the protection from reprisal against those who make or prepare to make such communications. When such reprisals occur, they constitute an injustice.

2.  The evidence of record shows that the applicant made protected communications; that an investigation was conducted, which substantiated that unfavorable personnel actions were taken in the form of an improper mental health evaluation and the issuance of adverse counseling statements by his chain of command.  It is also clear that the officials responsible for taking these actions were aware of the protected communication made by the applicant and that these actions would not have occurred if the protected communication had not been made.

3.  The Board concurs with findings of the DoDIG that substantiated the allegations that the applicant was issued adverse counseling statements by his chain of command in reprisal for a protected communication and, as a result of the DoDIG investigation, the counseling statements were never filed in the applicant’s OMPF.

4.  The Board further notes that, as a result of the DoDIG investigation, the inappropriate mental health evaluation is not in his records as currently constituted.
5.  The applicant stated that he had previously passed his APFT prior to the MEB and has recently been tested and passed the 2½-mile walk alternate aerobic event to APFT standards.  He states that this proves he should not have been found medically unfit for a “sore toe” and the statements concerning his inability to pass an APFT are false.

6.  The Board notes the applicant’s NCOER for the period June 1997 through April 1998, shows that he was issued a physical profile in December 1997 that prevented him from participating in the APFT for that period.  The Board also notes that the profiling officer on that physical profile was the Medical Corps colonel who was the hospital Chief of Orthopedic Services and who also prepared the orthopedic evaluation for the MEB.  At that time the doctor wrote that the applicant had presented himself with complaints of intermittent back pain and pain in his great toe of the right foot.  The doctor also wrote that this evaluation noted that the applicant’s back and foot problems limited his performance in a number of activities, including being able to walk sufficiently fast to pass the alternate APFT event.

7.  The applicant’s 2 March 1998 Report of Medical History clearly expressed that he considered himself to have numerous physical/medical problems and issues, to include his statement that “I am in poor health”.  While some of these problems may have been expressed out of his frustration with his military career status, this report in the applicant’s own hand was part of the evidence presented to the MEB/PEB for adjudication.  

8.  He contends that he signed the MEB to “buy time” for the completion of his Whistleblower complaint.  However, none of the issues presented to the DoDIG dealt with medical care or his physical status.  Regardless of the resolution of his Whistleblower complaint, the MEB/PEB process would have continued to move forward to a final but separate decision, unaffected by the DoDIG findings and recommendations.  He had the opportunity to mark that he desired to continue on active duty despite the MEB findings and recommendation but failed to do so.  It would appear that the applicant desired to leave active duty by reason of physical disability at that time and it was only after he discovered that he would not be retired by reason of physical disability, that he disagreed with the PEB findings and recommendation.

9.  The applicant asserts on numerous occasions that a Medical Corps major, not involved in his MEB physical, NARSUM, or orthopedic consultation, prevented him from having a trial with orthopedic footwear which would have provided him with the required optimum medical care through a rehabilitation phase of treatment.  It is not considered credible that the Medical Corps colonel, who was the hospital Chief of Orthopedic Service who prepared the orthopedic consultation for the MEB and signed the applicant’s resulting MEB physical profile, or the Medical Corps lieutenant colonel, who was the hospital DCCS who approved the MEB findings and recommendation and approved the MEB physical profile, would have been intimidated by this Medical Corps major in preventing such a trial.  The applicant acknowledges that it was common knowledge that this Medical Corps major was suspended from practicing medicine or treating patients.

10.  It is also noted that the Medical Corps colonel who was the hospital Chief of Orthopedic Services was also responsible for orthopedic rehabilitation.  As mentioned in the Evidence of Record, this same doctor was questioned by the PEB on his objective medical reason for not authorizing the applicant to participate in any APFT alternate aerobic event.  The doctor responded at the time that he had met again with the applicant and that his symptoms were unchanged from the prior evaluation.  The applicant was unable to run or jump due to exacerbation of pain in the back and both great toes.  Bicycling and swimming were easier on the feet but aggravated his back pain to the extent that he could not train to meet APFT standards.  Walking rapidly also caused pain in the back and right great toe.

11.  The doctor noted that it was difficult to assign a degree of impairment since there was no way of measuring the amount of pain an individual experiences.  There had been very little variation found in the applicant’s examinations.  If the applicant reports having pain that is too severe to exercise beyond a certain level, there was very little way to contest the veracity of the statement unless the applicant demonstrated inconsistent behavior at different times.  The doctor went on to state that there was no procedure or treatment that could restore the right foot to full function.  The hospital DCCS and the applicant countersigned this addendum indicating their concurrence with the description of the applicant's condition and the determination that further medical treatment of his foot would not improve his condition to the extent that he would be medically fit for retention.

12.  It is believed highly likely that had the Chief of Orthopedic Services, who is also responsible for rehabilitative services, thought that the applicant would have benefited long term from a trial with orthopedic footwear, he would have directed that such a trial take place.

13.  Notwithstanding that the applicant was found physically qualified for active duty in March 2000, it is noted that his Report of Medical History varies significantly from the one he prepared for the MEB in March 1998.

14.  Based on the evidence of record, and that submitted by the applicant, it appears that the findings and recommendation of the PEB were appropriate at the time given the facts in this case.  The applicant had made it clear that he was in physical distress, concurred with the MEB, and concurred with the narrative addendum to the MEB.  It appears that he disagreed with the findings and recommendation of the PEB only based on the percent of disability approved.  There is no basis to grant the applicant’s request to return him to active duty in the Army.

15.  There is no credible evidence that the applicant's medical separation was erroneous, nor is there any evidence that it was a reprisal for protected communications under the Whistleblower Protection Act.  The overwhelming evidence of the record is that the applicant actively sought a medical separation, based in large part upon subjective complaints of pain of an unknown etiology.  It is fortunate for the applicant that his medical conditions appear to have resolved to the extent that he was able to enlist in another service not long after his medical discharge from the Army.  His extraordinary recovery, however, does not change his apparent medical condition at the time of his separation from the Army.

16.  Although the DAIG substantiated some of the applicant's complaints that he suffered reprisal for protected communications, various offices and agencies of the Army have already implemented corrective action to address those reprisals. The applicant's separation is not in any way related to those reprisals, but resulted instead from the medical conditions claimed by the applicant over an extended period prior to his separation.

17.  The applicant was separated and assigned an RE Code in accordance with regulations then in effect.  In view of the circumstances in this case, the assigned RE Code was and still is appropriate.

18.  There is no evidence of record, or evidence submitted by the applicant, that he was recommended for or approved for an award for meritorious service upon separation from active duty.

19.  Regulations in effect at the time required successful completion of BNCOC for promotion to the pay grade of E-6.  The applicant did not complete BNCOC in any MOS and was not eligible for promotion.  Additionally he was not eligible for permanent award of MOS 96U since PERSCOM directed that MOS 96U be withdrawn and not awarded as a secondary MOS.

20.  Since there is no basis to return the applicant to active duty in the Army, there is no basis to correct his break in service, to grant him additional leave, to grant him back pay, or provide a nonrated statement in his records.

21.  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___  ___kf__  ___rw_____  DENY APPLICATION

		    Karl F. Schneider
		    Director, Army Review Boards Agency

INDEX

CASE ID	AR2001063010	
SUFFIX		
RECON		
DATE BOARDED	20020926	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.05	
2.	110.03	
3.	111.0200.0011	
4.	118.01	
5.	121.03	
6.	128.00, 131.09, 145.00