IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150005134 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his request for disability retirement. 2. The applicant states: a. On 1 April 2011, the separation physical examining physician found him medically unqualified for military service. The physician stated that he should be permitted to separate at his expiration term of service (ETS) or have a medical separation. b. Title 10, U.S. Code (USC), chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties due to physical disability. c. He feels he met the requirements to be medically retired on 1 April 2011 upon completion of his separation physical. His profile indicated that he required a medical evaluation board (MEB) and that the MEB dictation was pending. d. Though he chose to voluntarily resign and separate from active duty forgoing the MEB, he feels that his service related medical conditions would have been rated at 30 percent (%) or more warranting either placement on the Temporary Disabled Retirement List (TDRL) or permanent disability retirement. e. The prior decisional document states, under Discussion and Conclusions, that he suffered from a medical condition (scoliosis) that may have been medically unfitting. His scoliosis was noted in his separation physical and the examining physician determined that his condition made him unqualified for further military service and rated him with a profile of "3". f. The DA Form 3349 (Physical Profile), block 5, states "Functional activities that every Soldier regardless of military occupational specialty (MOS) must be able to perform, if Soldier cannot perform any one of these tasks then the PULHES must contain at least one '3' and a soldier must be referred to a MEB." g. Although the Department of Veterans Affairs (VA) has no authority to determine unfitness for military service, the VA does have the authority to determine if a veteran's medical condition is a result of his/her military service. Taking the findings of his separation physical and his DA 3349 with his VA 40% disability rating within 1-year of separation warrants granting him retirement based on permanent disability. h. His application for disability retirement is based on the fact that Army physicians determined that he was medically unfit for military service due to his service related medical conditions and that they had started processing him for an MEB. To complete this process, he would have had to remain on active duty for an additional 12 months, which at that time was not an option for him. His service medical records contain enough information to warrant permanent disability retirement or placement on the TDRL. He feels that he should be granted disability retirement. 3. The applicant provides no new documentary evidence. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140009111, on 10 February 2015. 2. The applicant's contentions that an MEB is required for Soldier's with a permanent "3" classification on a physical profile and that he if he was not retired due to a physical disability, he should have been placed on the TDRL constitute a new argument. 3. The applicant served on active duty from 16 July 2007 through 15 July 2011 as a commissioned officer in the Medical Corps. 4. On 19 February 2010, a physical evaluation board (PEB) was completed. The PEB determined that his scoliosis did not cause any functional impairment that would prevent him from satisfactorily performing his duty. The PEB found him fit for duty in his current grade and specialty. He concurred with the PEB's findings. On 1 March 2010, the PEB findings were approved. 5. A 24 February 2011 DA Form 3349 shows he received a permanent "3" classification for upper and lower extremities ("U" and "L") following his 23 September 2010 T2-iliac spinal fusion surgery. This form shows he was excluded from the Army Physical Fitness Test, was not authorized to wear any load-bearing equipment or body armor, and could not deploy. He did not meet retention standards and needed an MEB. It also noted an MEB dictation was pending. 6. On 1 April 2011, the applicant had a separation medical examination. The examining physician reported a well healed scar at the T2-iliac bone with essentially no range of motion of the thoracic and lumbar spine. The physical profile at this time was shown as a "U3" due to his post-surgical scoliosis repair. The recommendation was "Allow to ETS or medical separation....Compensate per Army and/or VA rules." 7. His DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 16 May 2010 to 15 May 2011 shows he was under a physical profile during the rating period. a. His rater checked "Satisfactory Performance, Promote" and commented that "Despite significant disruption of clinical duties secondary to major back surgery, [the Applicant] was still able to perform 46 surgeries....also provided daytime emergency and routine outpatient surgical care to Dewitt Army Community Hospital beneficiaries." b. His senior rater checked the "Best Qualified" and "Center of Mass" blocks. The senior rater stated he "exceeded all expectations when he returned to duty following major surgery....Promote ahead of peers." 8. On 8 June 2011, the U.S. Army Human Resources Command (HRC), Fort Knox, KY, approved his voluntary request for an unqualified resignation effective 15 July 2011. 9. U.S. Army Garrison, Fort Belvoir, Orders Number 179-0007, dated 28 June 2011, directed his release from active duty effective 15 July 2011. 10. On 15 July 2011, he was honorably released from active duty and transferred to the Individual Ready Reserve for miscellaneous/general reasons. 11. On 16 July 2012 the VA granted the applicant a 40% service-connected disability rating decision for his degenerative scoliosis based on forward flexion of the thoracolumbar spine of 30 degrees or less. 12. On 5 February 2015 the ABCMR denied the applicant's request for retirement based on permanent disability. 13. Title 10, U.S. Code (USC), chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, HRC, is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 (Disability Evaluation System (DES)) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 14. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and set 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. Separation or retirement by reason of disability requires processing through the PDES. The regulation states: a. The objectives of the PDES are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service connected disability, and provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB, when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS Medical Retention Board, when they are command-referred for a fitness-for-duty medical examination, and or they are referred by HRC. c. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. d. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability (emphasis added). 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. e. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. f. When a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his/her continued performance of duty until scheduled separation creates a presumption that the member is fit for duty. g. An individual may be placed on the TDRL when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. 15. Army Regulation 40-501 (Standards of Medical Fitness) sets forth the medical fitness standards for enlistment, retention, separation and special category personnel training. It provides that: a. For an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating; b. Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the service; c. Chapter 7 (Physical Profiling) provides that: (1) The basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in his or her determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. The functions have been considered under six factors designated "P–U–L–H–E–S": P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation. (2) Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. (3) Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity. (4) Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40. DISCUSSION AND CONCLUSIONS: 1. The applicant has not provided and the record does not contain any evidence that his back condition was not stable, thereby warranting placement on the TDRL. 2. The applicant is correct in his belief that receiving a permanent physical profile of "3" mandates processing through the PDES. However, by his own admission he, in effect, waived his right to an MEB when he submitted his request for unqualified resignation and it was subsequently approved by HRC. He argues that he did not have the time to wait for the PDES process to be completed and elected to voluntarily separate. Now, in hindsight, he argues his request for retirement based on a permanent profile should be granted due to administrative errors on the part of government officials because he could not wait for the PDES. 3. Considering the evidence and new argument presented by the applicant, there is no error, injustice or inequity. He made a decision based on his own personal time limitations to request an unqualified resignation when the governing regulations authorized his retention on active duty to undergo an MEB. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140009111, dated 10 February 2015. __________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150005134 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005134 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1