MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         23 January 2003
	DOCKET NUMBER:  AR2002074992

	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. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Patrick H. McGarthy, Jr.		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 her earlier appeal to correct her  military records by granting her a physical disability retirement with a 60 percent disability rating.  

APPLICANT STATES:  In effect, that the Board based it original decision on the following three points:  that she elected to stay on active duty; that she could perform her duties as a Family Physician while on active duty; and that she elected to remain in the United States Army Reserve (USAR) to perform Family Physician duties in the Army.  She claims that during her Medical Evaluation Board (MEB) processing, she was not provided with accurate counsel by the office of the Physical Evaluation Board Liaison Officer (PEBLO).  Further, the Physical Evaluation Board (PEB) disregarded attempts to consider additional documentation, and this Board did not have access to the corrected disability rating granted by the Department of Veterans Affairs (DVA) when her case was originally considered, even though it was transmitted to the Board prior to its consideration of the case.  

The applicant states that her decision to request continuance on active duty was based on counsel she received from the office of the PEBLO.  She was told that if she selected non-continuance, she would be found unfit for duty with a disability rating of 10 percent (%).  She claims that the statement “She feels her case warrants a higher rating than 10%” clearly indicates that she was counseled about the rating and this was not solely her interpretation.  She states that a 
10% rating would have given her no medical benefits and no chance to remain in the USAR and earn a Reserve retirement.  She claims that her prior USAR time and eleven years on active duty would have been negated.  Consequently, based on the counseling of the PEBLO office, she signed a memorandum asking to stay on active duty.  She claims that she did however, amend her option to read in teaching positions because she was aware that she would be completely unable to mange the physical demands of an operational assignment.  In addition, she was advised by several senior officers and the physician who prepared her PEB packet that as a physician, she would be found fit for duty regardless of her physical condition.  

The applicant also states that the record clearly shows that she was not functioning in the full capacity of a Family Physician, which is documented in her PEB rebuttal, in which she stated that she was working reduced hours, and although she had some improvement, she was not able to keep up with the demands of her job.  Further, she states that a fax to the PEB documented that regardless of its findings, she would not be able to continue on active duty, as she could not satisfy the demands of her duties as a physician and an officer in the active Army.  Subsequent to the PEB decision, she elected to leave active duty and was released at the end of her contract.  
The applicant also indicates that she had knowledge of the requirements to fulfill her duties in the USAR.  Drills consisted of attending briefings and screening medical records.  She states that while she was on active duty for her two week annual training, she worked at her former duty station in the Family Practice Clinic, and during these periods, she had a restricted schedule and did not perform procedures.  She usually taught residents in training and medical students, as well as administratively clearing Soldier Readiness Program personnel who were processing for deployment overseas.  She occasionally provided care directly to patients, but this was in a much more limited role than when she was on active duty.  She claims that her USAR duties, in scope and duration, were much less demanding than active duty.  

The applicant states that she has not been employed in any capacity since she departed from active duty due to chronic fatigue and arthritis from the lupus.  Her ability to work for two days a month and two weeks a year does not equate to a capacity to work full-time.  Consequently, her continued participation in the USAR is not a true reflection of a physician’s role in the active Army or as a civilian physician.  

The applicant further indicates that the counseling she received from the PEBLO was inconsistent, misleading, and confusing.  When she originally appealed the PEB findings, she was told that she first had to submit a written appeal and then ask for a formal hearing.  She was subsequently told that this was incorrect and she had to sign additional documentation to correct the action.  This incorrect counsel was documented in a fax to the PEB.  She claims that the PEB did not allow her due process in this matter.  She claims that she requested a formal hearing before the PEB to allow disclosure of her true condition and to allow the PEB to review documentation and testimony that was not reflected in her incomplete medical records.  However, this request was denied in less than twelve hours because the PEB had no intention of reversing its original decision despite the preponderance of documentation to support her position that she was unable to fulfill her duties as a Family Practice Physician in the active Army.

The applicant also states that the DVA found her 100% medically disabled as of 25 January 2000, the day after her discharge from active duty service.  She claims this finding supports her position for disability at the time of discharge from the active Army and was based on her physical capabilities as a physician while on active duty.  She further states that this decision was based on documentation that was not available in her incomplete medical records.  She concludes that the DVA rating was a more accurate and realistic reflection of her ability to function as a Family Physician while on active duty for at least 
12-18 months prior to her discharge.  

In support of her reconsideration request, the applicant provides copies of the following documents:  PEB election form and rebuttal; request for continuance on active duty; 12 May 1999 fax to the PEB; supporting letter from a former supervisor; the Board’s original decisional document; and the DVA rating decision.  

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 (AR2001064831) on 30 April 2002.  

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The Board staff has determined that the DVA rating decision not reviewed by the Board during its original deliberations constitutes new evidence and because the applicant has submitted her reconsideration request within the one year timeframe, the Board has elected to reconsider her case. 

The evidence of record confirms that on 31 March 1999, a MEB referred the applicant’s case to a PEB.  The applicant concurred with the findings and recommendations of the MEB, and stated that she wanted to remain on active duty, but only if she was able to remain in clinical medical or a teaching program.

On 27 April 1999, the PEB found the applicant fit for duty within the limits of her profile.  On 10 May 1999, the applicant requested the PEB reconsider her case, and she submitted a supporting memorandum on 12 May 1999, in which she outlined her physical problems.  

On 12 May 1999, the PEB reviewed the applicant’s rebuttal, and stated that no change to its original findings were warranted.  The PEB further indicated that Department of Defense Instructions (DODI) stipulated that a medical officer in any grade shall not be found unfit because of a physical disability if the officer could be expected to reasonably perform assigned duties; and the applicant’s medical board narrative summary, outpatient records, and the physical profile, indicated that she was capable of satisfactory performance of her duties as a family physician.  

On 19 April 1999, the United States Army Physical Disability Agency (USAPDA) notified the applicant that her case was properly adjudicated by the PEB, and the findings and recommendations were supported by substantial evidence, and were therefore affirmed.  

On 24 January 2000, the applicant was released from active duty at the expiration of her active duty commitment and transferred to a Troop Program Unit (TPU) of the USAR.  

The Board originally concluded that the applicant did not have a medically unfitting disability that prevented her from performing her duties as a physician.  Thus, there was no basis for a disability retirement or separation in her case.  

The applicant provides a copy of a DVA rating decision, dated 28 March 2002, which shows that she was granted a 100% disability rating for systemic lupus erythematosus and a 10% disability rating for gastro-esophageal reflux disorder, effective 25 January 2000.  

DODI 1332.38 states, in pertinent part, that a medical officer shall not be determined to be unfit because of a physical disability if the member can be expected to perform satisfactorily in an assignment appropriate to his/her grade, qualification, and experience.  Thus, the inability to perform specialized duties or the fact that the member has a condition which is cause for referral to the PEB is not justification for a finding of unfitness.  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/she must be unable to perform the duties of his office, grade, rank or rating.  

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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 VA, 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.  

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 Board carefully considered the new argument and evidence presented by the applicant in her enclosed self-authored statement and its enclosures.  However, with the exception of the DVA rating decision addressed below, it finds the argument and evidence provided by the applicant were available to the Board in some form during its original deliberations on the case, and they provide no new factors that would warrant a change to the Board’s original findings and recommendations.  

2.  By regulation, to be considered unfit by reason of physical disability, a member must be unable to perform the duties of his/her office, grade, rank or rating; and continued performance of duty creates a presumption of fitness.  The evidence of record confirms that the applicant’s disability processing was accomplished in accordance with the applicable law and regulations, and that she was found fit for duty by competent medical authority subsequent to her evaluation through the disability evaluation system.  

3.  Notwithstanding the applicant’s arguments to the contrary, the Board is satisfied that all requirements and law and regulation were met and that her rights were fully protected throughout her disability processing.  Further, the record clearly shows that although with stipulated conditions, the applicant expressed her desire to remain on active duty before the MEB.  Further, she continued to serve in her medical specialty in the USAR subsequent to her release from active duty.  In spite of the applicant’s assertion that these factors do not show she was fit for further active duty service, the Board finds that when coupled with the findings and recommendations of the PEB, they are more than sufficient to support a regulatory presumption of fitness in this case.

4.  The Board acknowledges the applicant’s medical condition, and it has no objection to the DVA disability rating decision.  However, it finds that this action by the DVA does not demonstrate an error or injustice in the Army’s disability processing in this case or mandate a disability retirement or separation from the Army.  

5.  The DVA awards compensation based on its own policies and regulations based on a medical condition existing that impairs the social or industrial adaptability of the individual concerned.  The DVA, is not required by law to determine medical unfitness for further military service.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.  Therefore, the Board concludes that the applicant’s DVA disability rating does not support granting the requested relief in this case. 

6.  After careful consideration of applicant’s reconsideration request, the Board finds that 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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__KAN__  __GJW  _  __PHM __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002074992	
SUFFIX		
RECON	AR2001064831	
DATE BOARDED	2003/01/DD	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2000/01/24	
DISCHARGE AUTHORITY		
DISCHARGE REASON	ETS	
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.  		
2.		
3.		
4.		
5.		
6.