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November 19, 1982

DAVID W. HEISIG, Plaintiff,

The opinion of the court was delivered by: FLANNERY

 This matter is before the court on the motion of defendant to dismiss or, in the alternative, for affirmance of the decision of the Army Board for Correction of Military Records ("ABCMR") denying plaintiff's application to convert his honorable discharge from the Army to a medical disability retirement. Plaintiff has filed a motion for reversal of the ABCMR decision and in opposition to defendant's motion. For the reasons set forth below, the court affirms the decision of the ABCMR.

 I. Facts

 In September, 1979, plaintiff was for a second time passed over for promotion to the rank of Regular Army Major. At that time plaintiff was informed that, pursuant to 10 U.S.C. § 3303, this second failure to be promoted would require his discharge from the Army as of March 1, 1978.

 During plaintiff's pre-discharge physical examination, an Army physician found plaintiff unfit for duty as defined in Army Regulation ("AR") 40-501 because he suffered from gastroesophageal reflux. Record at 130. This condition, for which plaintiff had unsuccessfully undergone surgery in 1971, is a digestive disorder involving general difficulty in digestion and excessive secretion of gastric acids which results in reflux, a repeated vomiting or spitting up of food and bile shortly after eating. Having found the plaintiff medically unfit, the examining physician referred plaintiff to a Medical Evaluation Board ("MEBD"), the first stage of Army review to determine if a member of the Army is fit for duty. *fn1"

  MEBDs may decide only if a member meets the medical criteria for retention in the Army. AR 635-40 § 4-12 (1980). *fn2" If the MEBD finds that the member has a medical disability that raises a "substantial doubt" as to his ability to perform his duties, it must refer the case to a Physical Evaluation Board ("PEB") for resolution of the ultimate question of whether the member is fit for duty. AR 635-40, §§ 4-13(a); 4-18(a) (1); 4-18(c) (1). PEB review itself is divided into two steps, the first informal, the second a formal hearing which includes the taking of testimony. AR 635-40 §§ 4-19; 4-20. A member dissatisfied with the outcome of the PEB hearing may seek review through successive layers of the Army hierarchy, to the Commanding Generals of the United States Army Physical Disability Agency and, subsequently, of the United States Army Military Personnel Center, AR 635-40 §§ 4-21 -- 4-24, and finally the ABCMR.

 In a report dated March 2, 1978, the MEBD which evaluated plaintiff found that he suffered from seven medical impairments, *fn3" including the gastric condition. Concluding that the requisite doubt existed as to plaintiff's ability to perform his duty, the MEBD referred the matter to a PEB. Record at 74-77.

 For the purposes of PEB proceedings, a member is presumed to be fit for duty if he has continued to perform his duties until the time of referral for medical evaluation. AR 635-40 § 2-2 (b) (1). *fn4" The burden is on the member seeking medical retirement to prove by a preponderance of the evidence that he is unfit for duty. AR 635-40 § 2-2b(4). The presumption of fitness may be overcome if the evidence establishes that:

Acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability, rendered him unfit for further duty.

 AR 635-40 § 2-2b(2) (b). In other words, a member who has been able to continue to perform his duty until the moment of separation from the Army, thereby creating the presumption of fitness, can undo that presumption by showing that a medical problem occurred or deteriorated at virtually the same time as his discharge, rendering him unfit.

 The determination of the PEB as to the member's fitness for duty is not a purely medical judgment, unlike the evaluation of the MEBD. The PEB evaluates the member's physical fitness in light of the demands made on the member by the type of tasks his rank and duties require him to perform. A member may be suffering from a particular ailment, and therefore fail to meet Army medical retention standards, and yet still be capable of performing the tasks of his particular job. *fn5"

A member may be referred for physical evaluation under other circumstances [other than immediately following acute, grave illness or injury]. If so, evaluations of his performance of duty by his supervisors (letters, efficiency reports, or personal testimony) may provide better evidence than a clinical estimate by a physician of the member's physical ability to perform the duties of his office, grade, rank, or rating. Thus, if the evidence establishes the fact that the member adequately performed the normal duties of his office, grade, rank, or rating until the time he was referred for physical evaluation, he might be considered fit for duty. This is true even though medical evidence indicates his physical ability to perform such duties may be questionable.

 The informal PEB which heard plaintiff's case found him fit for duty, concluding that he had failed to overcome the presumption of fitness. At the hearing before the formal PEB on April 5, 1978 plaintiff testified, as he had contended before the MEBD and informal PEB, that his gastric condition had deteriorated dramatically in the six to eight months preceding his scheduled discharge. Plaintiff argued that the evidence of deterioration was sufficient under AR 635-40 § 2-2(b) to overcome the presumption of fitness. Questions by Army counsel and PEB members, however, elicited the fact that despite the claimed deterioration plaintiff had made no sick call between April, 1977 and January, 1978, the time of plaintiff's predischarge physical examination. PEB members also noted plaintiff's general appearance of good health and the fact that plaintiff was able to play golf and softball. Moreover, the record before the PEB disclosed that up to and including the period of alleged deterioration plaintiff's job performance was consistently rated as superior in his periodic evaluation reports. Based on the testimony at the hearing, ...

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