IN THE CASE OF: BOARD DATE: 18 December 2008 DOCKET NUMBER: AR20080014049 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 that her discharge for unsatisfactory participation be voided and she be processed for separation due to physical unfitness. 2. The applicant states that while attending annual training with her U.S. Army Reserve (USAR) troop program unit (TPU), a tent pole struck her during a severe thunder storm, causing permanent damage to her left shoulder. She was diagnosed with a contusion and her arm was placed in a sling. 3. She details how she was not given any follow-up medical care for her injury and was ordered to deploy with her unit even though she was in great pain. She was finally seen by a military doctor who determined that she was unfit for duty from 2005 to 2006. She eventually received incapacitation pay (essentially, workman's compensation for the USAR) for the period June through December 2005. 4. The applicant believes that she should have been retained on active duty after her injury. She adds that because of a lack of medical treatment, her shoulder injury has worsened to a condition similar to tennis elbow, and has caused her mental, physical and emotional damage. 5. She also charges that the surgeon falsified and backdated a military document (Profile Sheet) to indicate that she was fit for duty from June 2005 through 2007. This was done to support the separation action initiated against her for unsatisfactory participation. 6. The applicant provides a list of documents which she lists in her application, excerpts from her military medical and personnel records, excerpts from her Department of Veterans Affairs (VA) medical records, incapacitation pay documentation, and her separation packet. CONSIDERATION OF EVIDENCE: 1. The applicant's military personnel records show that she initially enlisted in the USAR on 12 April 1980. She was involuntarily transferred to the USAR Control Group (Annual Training) on 15 July 1982 due to her unsatisfactory participation in her unit's training assemblies. She was assigned to another TPU on 1 November 1985, immediately reenlisted, transferred to the USAR Control Group (Reinforcement) on 20 December 1988, and was honorably discharged on 16 March 1992. An ARPC Form 606-E, memorandum for (the applicant), subject: Retirement Points for (the applicant), dated 10 March 1997 shows that for the period 21 March 1980 through 16 March 1992, the applicant only had three qualifying years of service (earned at least 50 retirement points) for retired pay. 2. On 24 May 2005, the applicant enlisted in the USAR in pay grade E-5. 3. On 13 June 2005, the applicant was treated for a contusion to her shoulder she incurred while on annual training. This occurred when the wind caused by a severe thunderstorm lifted a tent causing the center pole of the tent to fall on the applicant's shoulder. 4. On 21 February 2006, the applicant's treating physician wrote a treatment history/summary. In that document, the physician stated that when the applicant was initially treated for her injury, her left shoulder was stabilized in a sling and she was told to leave her arm in the sling until she saw her primary care physician, which she did not have at that time. As a result, she left the sling on for 2 months, using only her right arm and shoulder for everything, including heavy lifting. This resulted in her left shoulder being frozen in place (due to the immobilization) and right lateral epicondylitis (tennis elbow) and right shoulder pain due to over usage. In a follow-up appointment after physical therapy (a few months later), the applicant still had a great deal of pain in her right shoulder and elbow.  Subsequent examinations showed that the applicant's right elbow was more painful than her right shoulder, but neither was "100%." 5. On 28 February 2006, an e-mail was sent from the applicant's higher headquarters directing that the applicant be sent for a fit-for-duty evaluation. 6. On 5 May 2006, Ireland Army Community Hospital, Fort Knox, Kentucky, sent the applicant's commander a memorandum stating that the applicant needed to complete her remaining treatment plan. 7. On 3 February 2007, the applicant's higher headquarters command surgeon sent a memorandum addressing the applicant's medical status. In that memorandum the command surgeon stated that he had been involved with the applicant since the spring of 2006. He continued that the applicant was given "a very generous 6 months of incapacitation pay" and her injuries are considered relatively minor in nature with no subsequent fractures, hospitalizations, or in-depth medical care. All reasonable expectations and evidence on those injuries would not indicate that they would result in any further extensive disability. The command surgeon continues that although the VA has awarded the applicant a 40 percent disability, that rating does not preclude her from employment in her civilian or military careers. 8. The command surgeon adds that Ireland Army Community Hospital said that the applicant can work with some limitations, a view the command surgeon "wholeheartedly" concurred with. The command surgeon then stated that the applicant's incapacitation pay "was stopped well beyond a reasonable medical expectation of some recovery," and no more incapacitation pay will be approved for the applicant. 9. On 6 March 2007, the applicant was notified that she had missed the unit training assemblies (UTAs) conducted on 3 and 4 March 2007, that unless she submitted a request that was accepted to excuse her absence, those absences would be counted as unexcused. The applicant was also informed that if she accumulated 9 unexcused absences within a 1-year period, she would be declared an unsatisfactory participant and would be processed for separation. The applicant was notified on 7 May 2007 that she had missed UTAs conducted on 5 and 6 May 2007, and she was notified on 5 August 2008 that she had missed UTAs conducted on 2 and 3 August 2007. In her last notification the applicant was informed that she had accrued 26 unexcused absences within a 1-year period. 10. On 16 July 2007, the applicant's commander notified the applicant of his intent to recommend her separation due to unsatisfactory participation and of her rights in conjunction with that recommendation. 11. The record is unclear whether the applicant's case was considered by an administrative separation board. However, she was honorably discharged on 7 September 2008. 12. In the processing of this case an advisory opinion was obtained from the Office of The Surgeon General (OTSG). The OTSG stated that the applicant had rotator cuff tendinitis, which is a minor injury, but persistent, yet non-surgical. However, the OTSG stated that there was insufficient medical information to render a medical opinion. 13. The applicant was provided a copy of the advisory opinion and submitted a rebuttal. In that rebuttal the applicant amended her request to ask for her records to be corrected to show that she was retained on active duty from the date of her accident until a future date when she is released from medical treatment by her primary care physician. The applicant stated that in November 2006 her physician stated that he wanted her to have 12 additional physical therapy sessions scheduled by her unit, which they never did, and that he wanted to see her again in November 2007 for a final evaluation. She adds that the information contained in the memorandum from her higher headquarters command surgeon went against the fact that she was granted an extension of incapacitation pay by the command surgeon's office. The applicant concludes that an officer from the Judge Advocate General Corps told her that she should have been retained on active duty until she was returned to duty and, therefore, she believes that granting her request would in the interest of fairness. 14. In support of her rebuttal the applicant submits a DA Form 4187 (Personnel Action), dated 15 August 2005 which she signed but was not signed by an authenticating official, requesting she be given Active Duty Medical Extension (ADME); she submits three DA Forms 7574-1 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty), which certify the applicant was not fit to perform military duties from 2 January to 31 March 2006, and 25 April 2006 to 7 December 2006; a document showing that she was receiving physical therapy and was scheduled to stop the physical therapy on 17 November 2007; a printout showing what is required for packets being referred to a physical evaluation board (PEB); an excerpt from Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), which shows that reservists who are disabled in line of duty as a proximate result of performing duty while serving on annual training are eligible for specified benefits; and an Inspector General response to her which forwarded to her the higher headquarters command surgeon's response. 15. The VA rating decision submitted by the applicant shows that she was awarded a 20 percent disability rating for residuals, left shoulder contusion, with history of frozen shoulder; and a 20 percent disability rating for her right elbow and right tendon. 16. Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) applies to Soldiers of the USAR and the Army National Guard of the United States, including those serving on active duty under the provisions of Title 10. Paragraph 7-2a states that Soldiers who incur or aggravate an injury, illness, or disease while on orders for more than 30 days may elect to extend on active duty until treatment is completed. Chapter 2 states that Reserve Component (RC) Soldiers who incur or aggravate an injury, illness, or disease while participating in training may be treated in a medical treatment facility or be provided medical care elsewhere at Government expense. Soldiers are authorized follow up medical care for injury, illness, or disease incurred or aggravated in line of duty after completion of active or inactive duty training. 17. Department of the Army WTU Consolidated Guidance dated 14 March 2008, paragraph 2-7, states that in order to be extended on active duty under the Active Duty Medical Extension (ADME) provisions, a Soldier must have incurred or aggravated an in the line of duty service-connected injury, illness, or disease while in an inactive duty training (IDT) or non-mobilization active duty status and that medical care will extend beyond 30 days. The Soldier must be found by military medical authority to be unable to perform his or her MOS / AOC within the confines of a Medical Profile. A Department of the Army (DA) FORM 3349 – Physical Profile will be used to document this determination. The Soldier must be medically approved by the ADME Medical Review Board to enter the ADME program. 18. Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her 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 (MEBD). Those members who do not meet medical retention standards will be referred to PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. DISCUSSION AND CONCLUSIONS: 1. The OTSG stated that the applicant had rotator cuff tendinitis, which the OTSG said is a minor injury which is non-surgical. Therefore, it is doubtful that the medical treatment for the injury, if properly taken care of, would have extended beyond 30 days. As such, there is no reason to believe that the applicant would have been medically approved by the ADME Medical Review Board to enter the ADME program. 2. The applicant's ongoing physical problems were caused by her delay in seeing a doctor after her initial treatment for her injury. As such, the conditions which were disabling to the applicant were not her original injury. They were conditions which were caused by leaving her sling on too long and overusing her other arm during that time. While the applicant blames her unit for this delay, she must also take responsibility for her own wellbeing. The applicant has not provided any documentation to show that she requested authorization for follow-up medical care immediately following her initial injury. 3. The applicant appears to believe that she should have been considered incapacitated, and therefore excused from attending UTAs, as long as she was receiving therapy. This is not so. Many Soldiers performing active and inactive duty receive some form of physical therapy while still performing their military duties. 4. The applicant was determined to be physically fit to perform her normal military duties.   After that determination, she was required to attend UTAs. When she failed to attend UTAs, her absences were properly classified as unexcused. Once she accrued over 9 unexcused absences within a 1-year period, she was subject to discharge for unsatisfactory participation. 5. As such, the preponderance of evidence shows that the applicant was not eligible for retention on active duty under the ADME program, she was properly returned to a duty status and, when she failed to attend UTAs after that determination, she was properly discharged for unsatisfactory participation. 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 for correction of the records of the individual concerned. ________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) AR20080014049 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080014049 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1