APPLICANT REQUESTS:  In effect, that his discharge from the ARNG be voided and that he be reinstated in his unit.

APPLICANT STATES:  It was not his fault that he could not attend drills with his unit.  He was ordered not to attend any drills by his commander because of his line of duty injury.  After he stopped attending drills, he was discharged for medical disqualification upon the advice of the ARNG State Surgeon even though he had been found physically fit to perform his duties by a physical evaluation board (PEB).

EVIDENCE OF RECORD:  The applicant's military personnel and medical records show:

He enlisted in the ARNG in pay grade E-1 on 17 November 1977, served continuously through extensions of his enlistment, and was promoted to pay grade E-6.

On 21 June 1987, while on annual training with his unit, the applicant was admitted to a civilian hospital complaining of abdominal pain.  He reported that he had fallen over a chair three days before his admission, hitting his lower back.  He thought that he had only twisted his ankle at the time of injury, but was later found in his tent in a semi-unconscious state, prompting his hospitalization.  The applicant received follow-up medical care and incapacitation pay (full military pay and allowances given to reservists and guardsmen who are disabled in line of duty) due to injuries he incurred in that accident.

On 5 February 1989 the applicant, then promoted to pay grade E-7, while performing a weekend drill, was a passenger in a military vehicle which had pulled off the road to engage its four-wheel drive system due to icy conditions when a tractor trailer hit the vehicle in which he was a passenger from behind.  The impact threw him forward causing him to strike the radio mount in the rear seat of the vehicle, injuring his ribs, cutting his hand, and causing bruises all over his body.  The applicant received follow-up medical care and incapacitation due to that injuries he incurred in that accident.

On 30 May 1991 the applicant was traveling to his ARNG center to perform a scheduled Additional Training Assembly.  While stopped at a light, his privately owned vehicle was struck in the rear by another automobile.  The applicant received follow-up medical care and incapacitation for injuries he incurred as a result of that accident.

On 10 August 1992 the applicant was given a permanent physical profile and referred to a medical evaluation board (MEB).  The MEB found the applicant to have musculoskeletal low back pain with right lower extremity sciatica (pain radiating from the back into the buttock and into the lower extremity along its posterior or lateral aspect) and referred him to a PEB.

On 16 December 1992 an informal PEB convened and determined that the applicant was physically unfit due to musculoskeletal low back pain with right lower extremity sciatica, and recommended that he be discharged with severance pay, rated 10 percent disabled.  The applicant disagreed with those findings and recommendation and demanded a formal hearing.

Accordingly, on 28 January 1993 a formal PEB convened which determined that the applicant was fit for duty with profile limitations.

The applicant was then returned to duty, serving as a food service noncommissioned officer.

On 10 October 1993 the applicant’s commander submitted a recommendation that he be discharged from the ARNG.  His commander stated that the applicant was given a trial period to attend drills and annual training to determine whether he could perform his duties within the confines of his profile limitations.  His commander stated that the applicant’s performance during the trial period had been less than satisfactory and his physical profile restricted his ability to perform his occupational specialty or any other occupational specialty within the unit.  His commander concluded that the applicant’s physical profile precluded him from being a mobilization asset.  That request was forwarded by the State Adjutant General to the unit’s servicing medical department activity.  In response to that request, the applicant was examined, diagnosed as having chronic low back pain, and had his permanent physical profile reaffirmed.  

On 10 October 1994 the applicant reported to a military hospital emergency room complaining of acute back pain.  He was diagnosed as having acute intractable low back pain, superimposed on a history of chronic low back pain.  The physician treating the applicant opined that the chronic nature of his back pain was probably due to his admitted noncompliance with his prescribed exercise program and his obesity.  The applicant was admitted to the hospital for 2 days of strict bedrest which was followed by gradual mobilization, intensive back rehabilitation and an aerobic conditioning program.

The applicant’s unit commander then notified him that he was not to attend any training with the unit until he submitted a medical certificate attesting that he was not experiencing any further acute back pain.  His unit commander then submitted another request through the ARNG chain of command for a determination to be made concerning his medical qualification for continued assignment to his position.

On 10 April 1995 the applicant was notified that a State Medical Duty Review Board (MDRB) had been convened which determined that he did not meet the medical retention standards of Army Regulation 40-501, chapter 3.  He was allowed 30 days to submit matters in his own behalf before final action was taken in his case.  In that notification he was also informed that since he had over 15 years of qualifying service, he would be issued a notification of eligibility for retired pay at age 60 if he were to be separated for medical disqualification.

The applicant submitted a letter in his own behalf contesting the MDRB’s finding, mainly stating that the MDRB had no authority in his case since he was found fit for duty by a PEB.  His appeal was denied and he was honorably discharged on 1 August 1995 by reason of medically disqualification for retention in accordance with National Guard Regulation 600-200, paragraph 8-26y.
National Guard Regulation 600-200, paragraph 8-26y provides for the discharge of guardsmen under the provisions of Army Regulation 135-178, paragraph 12-1, when the guardsman is determined medically disqualified.  This paragraph states that if the disqualifying medical condition was incurred in line of duty, the regulation governing medical boards applies.

Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel in the USAR.  Paragraph 12-1 prescribes the procedures for separating members for medical disqualification.  This paragraph requires a member who is determined to be medically disqualified for retention to be discharged or transferred to the USAR Control Group (Retired) (regardless of years of service), unless the member requests, and is granted, a waiver of the medical defects.

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 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.  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 perimeters 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.
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 performing active or inactive (weekend drill) duty.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant was determined to be medically disqualified by an MEB which then referred him to a PEB.  While the PEB determined that he was physically fit to perform his duties with that medical disqualification, that determination did not alter the applicant’s permanent physical profile limitations.  However, since he had never been mobilized or deployed with his medical disqualification, the PEB could not determine by his military records a demonstrated ability to perform his duties under field conditions in world-wide deployment areas.  His commander, however, had to consider his ability to deploy, especially since the applicant was occupying a key position of a senior noncommissioned officer within his unit.

2.  When it appeared to the applicant’s commander that the applicant’s ability to mobilize and deploy in the event of war or national emergency was questionable, he properly referred him to a State MDRB.

3.  Because of the differences of purpose in the PEB and the MDRB, it is proper for an MDRB to find a guardsman medically disqualified after the same guardsman is found fit for duty by a PEB.

4.  The Board notes that the applicant was provided follow-up medical care and incapacitation pay as needed and was issued a notification of eligibility for retired pay at age 60.  The Board is satisfied that the ARNG provided the applicant all the benefits provided for by law for his service related injuries and, by issuing to him a notification of eligibility for retired pay, have provided him with a return for his years of service in the ARNG over and above his pay and his satisfaction of serving his State and country.

5.  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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director