PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 21 May 2002
         DOCKET NUMBER: AR2001064467


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Jennifer L.Prater		Chairperson
Mr. Thomas Lanyi		Member
Ms. Barbara J. Ellis		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his records appear before a Medical Evaluation Board (MEB) based on his permanent profile and that he be retired by reason of physical disability.

3. The applicant states that, based on his medical records and permanent profile, he should warrant an MEB and retirement by reason of physical disability.
In 1999, he was seen by an orthopedic surgeon at Weed Army Community Hospital for a problem with his right hand/arm and shoulder caused by a recurring problem from a previous shoulder surgery. He contacted his branch and spoke with officials who informed him to request a deferment/deletion from assignment and to forward all relevant documents to his branch manager. He again spoke with his branch manager in March 1999 in reference to his request and medical condition and was informed to submit a DA Form 4187 (Personnel Action Request) to request assignment to Fort Lewis, Washington. He submitted his request in April 1999 and was informed that his assignment would be delayed for 60 days (July 1999). He requested that he be deleted due to pending follow-ups, Magnetic Resonance Imaging’s (MRIs), consultations, and surgeries. He was informed to accept the assignment or sign a Declination of Continued Service (DCSS). Due to his health, he chose to sign a DCSS in July 2000. In September 2000, his right hand was operated on to cure the problem of his finger going numb. He received convalescent leave (CLV) and a 90-day profile. Prior to expiration of his profile, he was seen for his shoulder and was issued a profile which limited his functions. In May 2001, he was sent to Balboa Naval Hospital in San Diego, California for a consultation with an orthopedic surgeon experienced in sports medicine. After his consultation, it was determined that an acromioclavicular (A/C) (pertaining to the acromion (the outward extension of the spine of the scapula, forming the point of the shoulder) and clavicle (the collar bone)) joint reconstruction should be performed. This procedure was completed in June 2001 which resulted in 21 days CLV and issuance of a permanent profile on 6 July 2001. After receipt of his permanent profile, he was instructed to see
Mr.----- in reference to a MEB and review for a possible medical retirement. He presented Mr.----- a copy of his profile and inquired about the date of his expiration of term of service (ETS). He was informed that his ETS was 12 July 2001. He was also informed that he would have to voluntarily extend for 60-90 days to complete an MEB. He informed Mr.----- that he had signed a DCSS. He called personnel at Fort Irwin and asked if he could extend for 60-90 days to meet the requirements of a MEB and was informed that he was ineligible regardless of the situation. He was kept from appearing before an MEB and was not afforded the opportunity to attend any type of rehabilitation. He informed the Nevada State Inspector General’s (IG) Office of this matter and was informed to contact his personnel office for assistance. In support of his application, he submits copies of his medical records, a copy of his permanent profile, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).


4. The applicant’s military records show he enlisted on 9 July 1982 as a cavalry scout.

5. On 16 December 1996, the applicant injured his right shoulder while playing flag football during physical training. He was diagnosed as having a right shoulder acromioclavicular (A/C) joint separation. He was seen on several occasions by medical authorities and was issued several profiles pertaining to his condition.

6. On 18 April 2000, the applicant was seen by a civilian physician for complaints of numbness and tingling into his fingertips on his right hand. The
findings suggested mild/early right carpal tunnel syndrome (hand and wrist problem arising from repetition of certain movements).

7. The applicant was alerted for overseas assignment to Korea. He was advised on the options available to acquire sufficient remaining service to satisfy his commitment and refused to take the necessary action to meet the length of service. He was also advised of the effects and acknowledged receipt on 5 June 2000.

8. On 12 October 2000, the applicant underwent surgery for his right carpal tunnel and was issued a temporary profile for his condition.

9. On 5 June 2001, the applicant underwent right A/C joint reconstruction surgery for his ongoing right shoulder pain.

10. On 6 July 2001, the applicant was issued a permanent physical profile of 131111 due to his right shoulder pain with assignment limitations of no lifting in excess of 15 pounds. This profile was signed by a profiling officer, an orthopedic surgeon, who did not recommend the applicant for MEB or any form of physical disability processing prior to his discharge.

11. The applicant was honorably discharged on 12 July 2001, under the provisions of Army Regulation 635-200, paragraph 16-4, due to non-retention on active duty. He had completed 19 years and 4 days of creditable service.

12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 16 covers discharges caused by changes in service obligation. Paragraph 16-4 applies to non-retention on active duty. It states, in pertinent part, that soldiers denied or ineligible for continued active duty service
may be separated upon request, due to a locally imposed bar to reenlistment and who refuse to take action to meet remaining military service requirements by signing a DA Form 4991. The service of personnel separated under this paragraph will be characterized as honorable.

13. Army Regulation 40-501, chapter 7, physical profiling, provides that 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 their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower
extremities, H-hearing and ears, E-eyes, and S-psychiatric. 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. 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.

14. Paragraph 7-6 of the same regulation states that commanders of Army medical treatment facilities (MTFs) are authorized to designate one or more physicians, dentists, optometrists, podiatrist, audiologist, nurse practitioners, and physicians assistants as profiling officers. Physicians have no limitations. Changing from or to a permanent numerical designator of “3” or “4” requires a physical profile board (PPBD).

15. Paragraph 7-8 states that PPBDs will be appointed by the MTF commander and will normally consist of two qualified physical profiling officers, one of whom must always be a physician. In addition to the two profiling officers, the approving authority must sign the permanent profile, which is always a physician. Permanent revision of a soldier’s physical profile from or to a numerical designator “3” or “4”, return to duty of a soldier hospitalized over 6 months, when directed by the appointing authority in cases of a problematical or controversial nature requiring temporary revision of profile, and upon request of the unit commander require consideration of a PPBD.

16. Paragraph 7-11 states that the DA Form 3349 will be used to record both permanent profiles and temporary profiles. Permanent “3” and “2” profiles requiring major assignment limitations(s) require signatures of a minimum of two profiling officers. In exceptional cases, as required, a third officer will also sign. Temporary profiles not requiring major assignment limitations require only the signature of one profiling officer. The approval authority will be designated by the MTF commander and the approval authority for permanent “3” or “4” profiles must be a physician and is usually the Deputy Commander for Clinical Services (DCCS). The disposition of the permanent profile by the MTF is as follows: 1) original and one copy to the unit commander; 2) one copy to the military personnel officer (MILPO); 3) one copy to the soldier’s health record; and
4) one copy to the clinic file.

17. Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program. Chapter 4 of the regulation provides for reenlistment, extensions of enlistment, and DCSS. Paragraph
4-6 states, in pertinent part, that a service remaining requirements (SRR) is a Headquarters, Department of the Army (HQDA) prerequisite for a soldier to have a specified amount of remaining contractual service in order to meet their assignment instructions. Soldiers are required to reenlist and /or extend their enlistments to meet these requirements. Action will be taken within 30 days of notification of an SRR or individuals may elect discharge, extend their current enlistment, or decline continued service.

18. Paragraph 4-9 applies to reasons for extensions of enlistment. Requests for extension of enlistment described in this regulation may be approved for the following reasons. Upon receipt of the approved DA Form 3340-R and verification of eligibility, the servicing Career Counselor will obtain an extension control number (ECN) from Commander, PERSCOM, via the RETAIN system. The ECN will be entered on the soldier's DA Form 1695. Extensions for purposes other than those listed in this paragraph will be evaluated by the soldier's immediate commander, approved as outlined, and accomplished only when the soldier is within the reenlistment eligibility window and will not exceed a cumulative total of 12 months on any one enlistment, unless otherwise specified. Extensions are not authorized once the soldier is within 3 months of scheduled ETS, except when prior approval has been obtained from the Commanding General (CG) of the Total Army Personnel Command (PERSCOM).

19. Paragraph 4-9(g) states that individuals pending a personnel action pertaining to military occupational specialty (MOS) reclassification, reassignment, evaluation by the Physical Performance Evaluation System, joint domicile (either spouse), or similar situation may be extended, if otherwise qualified, to await determination. Extension will not exceed 3 months and must be accomplished during the reenlistment window.

20. Paragraph 4-9(m) states that soldiers may extend, whether or not they are reenlistment or extension qualified. Soldiers who have a locally imposed bar to reenlistment approved below HQDA, may extend if they are within 90 days of their expiration of term of service (ETS) and in, or projected to be in, medical hold status past their ETS. Medical confirmation is required and will include the approximate amount of time past ETS required for completion of treatment and/or release from medical hold status as determined by competent medical authority. Extensions may be granted for days or a combination of months and days. Subsequent extensions are authorized as determined by medical authority and this regulation.



21. 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/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

22. Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reasons other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration
of physical condition, occurring immediately prior to, or coincident with separation, rendered the member unfit.

CONCLUSIONS:

1. The evidence of record shows that the applicant injured his right shoulder and was diagnosed as having a right shoulder A/C joint separation, was seen on several occasions by medical authorities, and was issued several temporary profiles.

2. The applicant was seen by a civilian physician for complaints of numbness and tingling into his fingertips on his right hand and was diagnosed as having right carpal tunnel syndrome. He was alerted for overseas assignment to Korea and requested assistance on his options due to his medical condition. He was informed to request a deletion/deferment and to request reassignment.

3. The applicant’s assignment was delayed for 60 days and he requested that he be deleted due to follow-ups on his medical condition. He declined his assignment to Korea and chose to sign a DCSS due to his health.

4. The applicant underwent surgery for his right carpal tunnel and was issued a temporary profile for this condition and for his right A/C joint reconstruction. He
was issued a permanent physical profile of 131111 on 6 July 2001.

5. The applicant inquired about the date of his ETS and was informed that he would have to extend 60 to 90 days to complete an MEB. He asked his
personnel officials if he could extend to meet the requirements of an MEB and was informed that he was ineligible.

6. The Board notes that in accordance with Army Regulation 601-280, chapter
4, paragraph 4-9(g) and 4-9(m) the applicant was entitled to be extended under certain circumstances. Medical confirmation was required, the approximate amount of time past ETS required for completion of treatment and/or release would be determined by competent medical authorities, and that extensions may be granted for days or a combination of months and days.
7. The Board also notes that only one profiling officer signed the applicant’s profile. According to Army Regulation 40-501, chapter 7, the applicant’s profile should have been signed by two or more physicians and approved by the MTF commander. There is no evidence in the available records to show that this action was completed.

8. The Board notes that the applicant’s injury was service connected and that
he was not provided the opportunity to appear before an MEB. The Board recommends that the applicant be referred to a military medical treatment facility for a medical examination for determination of his fitness for duty. In the interest of justice, and based on the preponderance of evidence and his time in service of 19 years and 4 days, recommend that his case appear before an MEB for further determination.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected:

a. by referral to a military medical treatment facility for a medical examination for determination of his fitness for duty; and

         b. that if found not medically qualified for retention based on service connected injury, that he be referred to an MEB/PEB for appropriate further evaluation and medical disability processing.

BOARD VOTE:

__jp____ __tl___ __be______ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Jennifer L. Prater___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001064467
SUFFIX
RECON
DATE BOARDED	20020521
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20010712
DISCHARGE AUTHORITY	AR 635-200. C, 16
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 177
2.
3.
4.
5.
6.