2.  The applicant requests that he be medically retired.

3.  He states that he was severely injured in an automobile accident while he was on active duty in support of Operation Desert Storm.  Upon completion of his inpatient care, he was released from the hospital and returned to his reserve unit.  Personnel at his unit then pressured him to sign papers consenting to being discharged because he could no longer perform his duties.  Thereafter, he was discharged without any benefits for his injuries, and was not even issued a DD Form 214, Certificate of Release or Discharge from Active Duty, for the period he was on active duty.

4.  The applicant’s counsel contends that the applicant was injured in line of duty while he was on active duty in support of Operation Desert Shield/Storm, that his injuries were of such severity as to warrant consideration by a medical evaluation board (MEB), that the military physicians treating him recommended that an MEB review his case and, contrary to that recommendation and Army regulations, he was administratively discharged without benefits and without being considered by an MEB.  In addition, the applicant was not counseled concerning his options regarding his disability as required by Army regulations.  Counsel concludes that the applicant should have been medically retired or, in the alternative, that his administrative discharge be corrected to a discharge for medical unfitness, rated disabled, with severance pay.  Counsel adds that the applicant should also be given credit for completing 20 qualifying years of service for retired pay and issued a retired military identification card.

5.  In support of his request he submits copies of civilian and military treatment records and excerpts from his military record as pertains to the events surrounding his disability.

6.  The applicant’s military personnel and medical records show that on 29 January 1990 the applicant immediately reenlisted for 6 years in pay grade E-5 in the USAR.

7.  On 27 September 1990, while serving as a graves registration specialist in pay grade E-6 in a USAR unit, the applicant was ordered to active duty in support of Operation Desert Shield.

8.  On 25 January 1991, while returning home for the night from his unit in Puerto Rico, he was a passenger in a vehicle involved in an automobile accident.  He was admitted to a Veterans Administration (VA) hospital and treated for blood in his abdominal cavity, a lacerated forehead, a tear to his small bowel, a transection (cut) of his sigmoid colon, and bilateral pelvic fractures.  He was placed in the intensive care unit for 8 days and was released from the hospital on 8 February 1991.

9.  Thereafter, he was evaluated by military physicians at Fort Buchanan Medical Treatment Facility who referred him to Eisenhower Army Medical Center (AMC), Fort Gordon, Georgia, where he was admitted on 31 March 1991.  He received physical therapy at Eisenhower AMC and was released on 6 April 1991.  He was readmitted on 16 April 1991 for elective surgery in conjunction with his injuries and was released on 7 May 1991.

10.  The applicant was counseled in writing on the advantages of remaining on active duty after his unit demobilized.  The applicant requested to be retained on active duty.  That request was granted and the applicant was retained on active duty.

11.  The applicant was placed on convalescent leave for most of the time he was retained on active duty when he was not being treated on an inpatient basis.  During that time he was given extensive follow-up medical care and intensive physical rehabilitation therapy.  His treatment included tests on his range of motion.

12.  In an examination record dated 23 August 1991, it is stated that the applicant was using an exercise bicycle at home and was walking as part of his physical therapy.  The physician stated that all of the applicant’s injuries and problems related to the accident were improving.  On a progress note dated 12 September 1991 it was stated that the applicant’s pelvic bones were healed.  On 25 September 1991 the applicant was given a retention physical examination and was found medically qualified, with a temporary “2” profile designator (indicating a minor medical defect which does not normally require assignment limitations but may require duty limitations) for his lower extremities.  As a result of that examination, he was medically cleared for release from active duty. 

13.  Accordingly, on 26 October 1991 the applicant was honorably released from active duty and returned to his status as a drilling reservist.  His records contain a DD Form 214 for that period of active duty.

14.  On 4 December 1991 the applicant was examined and found to be healed, but was given a temporary “3” profile designator (might require assignment limitations) for residual pain.

15.  On 23 May 1992 the applicant was again examined, complaining of pain and sexual discomfort.  The treating physician did not find anything wrong with him and directed that he be returned to his unit without duty limitations.

16.  On 7 August 1992 the Command Surgeon, USAR Forces, Puerto Rico, directed that the applicant be given a temporary “3” physical profile designator for his lower extremities.  That assessment was based solely on a review of the applicant’s treatment records.

17.  On 17 October 1992 the applicant was given another retention physical examination at a USAR hospital unit.  He was initially given “2” profile designators for his overall physical condition, his lower extremities, and his hearing.  The examining physician then changed the “2” designator in overall physical condition to a “3” designator, stating that the applicant was medically disqualified for retention, and recommended an MEB consider his case.

18.  The applicant’s unit commander then notified him that he was recommending his administrative separation due to medical unfitness, and of his options in that type of separation.  Based on those options, the applicant chose to be discharged.

19.  Accordingly, the applicant was honorably discharged on 28 May 1993 under the provisions of Army Regulation 135-178, paragraph 12-1, for non-service related disability, without being rated for his disability or being given severance or retired pay for any medical condition.

20.  Subsequently, the applicant’s discharge was revoked and he was transferred to the USAR Control Group (Retired) effective the same date as his discharge, 28 May 1993, under the provisions of Army Regulation 135-178, paragraph 12-1.

21.  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.

22.  Army Regulation 635-40 provides that those members who do not meet medical retention standards will be referred to a physical evaluation board to determine whether they are unfit to be retained in the Army and, if so, to determine the percentage of disability to be awarded.  This regulation also provides that only unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

23.  Army Regulation 635-40, paragraph 7-2, provides for the placement of an individual on the Temporary Disability Retired List (TDRL) for a maximum period of 5 years (title 10, United States Code, section 1210) when it is determined that the individual’s physical disability is not stable and may heal sufficiently for the individual to return to 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. 

24.  Title 10, United States Code, chapter 61, provides permanent 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.

25. Army Regulation 135-381 and title 37, U.S. Code, section 204, provide for continuation of pay and allowances under certain circumstances to reservists who are disabled in line of duty as a direct result of the performance of their duties.

26.  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’s bowel injuries were not medically disqualifying and would not warrant having his case considered by an MEB.  However, the latest medical examination conducted on the applicant showed him to have continued pain and limited range of motion as a result of his bilateral pelvic fractures, conditions which were medically disqualifying and requiring consideration by an MEB.  The OTSG recommends the applicant be given an MEB.

27.  Also obtained in the processing of this case was an advisory opinion from the Department of the Army Review Boards Agency (DARBA) Medical Advisor.  The DARBA Medical Advisor stated that the applicant should have been considered by an MEB prior to his separation and that his referral to an MEB could have resulted in his being placed on the TDRL.  The Medical Advisor recommends that the applicant be referred to an MEB.

CONCLUSIONS:

1.  The applicant’s medical qualifications and physical fitness appear to have been doubtful both when he was released from active duty and when he was separated from the USAR.

2.  It is apparent from the evidence of record and the advisory opinions that the applicant should have been considered by an MEB and final disposition made based on the findings of the MEB.

3.  While there is an obvious error and injustice in this case, the method of resolution is hampered by insufficient documentation to establish a permanent disability rating for the applicant and by statutory limitations, the most prominent being the 5-year limitation for a soldier to be placed on the TDRL.

4.  The Board is of the opinion that the applicant should be financially compensated from the date of his injury and should have that compensation either made permanent or terminated by a physical evaluation board (PEB).  The most appropriate vehicle for accomplishing that would be to place the applicant on the TDRL on the day following his release from active duty on 26 October 1991.  However, as aforementioned, placement of a soldier on the TDRL is limited to a 5-year duration.

5.  As such, the Board must accomplish its intent by showing that the applicant received incapacitation pay from the day following his release from active duty until his discharge on 28 May 1993, and that he was placed on the TDRL on 29 May 1993.

6.  In that fashion, the Board may also correct the applicant’s records to show that he was assigned to the TDRL from that date and have him scheduled for an MEB and PEB within the 5 year statutory limit.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by showing that the individual concerned was awarded incapacitation pay from 27 October 1991 to 28 May 1993;

	b.  by showing that he was transferred to the TDRL, rated 50 percent disabled, on 29 May 1993 and has remained assigned to the TDRL from that date; 

	c.  by paying to him the incapacitation and retired pay the foregoing corrections would entail; and

	d.  by scheduling him on a priority basis for an MEB and a PEB and making final disposition on his case by either returning him to duty or by separating him for physical unfitness, rated disabled.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON