RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 3 April 2007 
	DOCKET NUMBER:  AR20060010710 


	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. Gerard W. Schwartz

Acting Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



Member
	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, separation from active duty (AD) on 30 April 2004 with a medical discharge. 

2.  The applicant states, in effect, he should have been released from AD via a medical board with a medical discharge.  He also states that he was released from active duty (AD) medical hold on 30 April 2005, not by reason of physical disability.  On 1 December 2006, he was released from the Army Reserve because of a medical disability.  He should not have been released from AD without a Medical Evaluation Board (MEB).  The release was against his doctor's orders and if he was to be released at that point he should have been released with a medical discharge.  All paperwork was given to the medical holding company, so his doctor's wishes were known.  The Army paperwork states that he was cleared for full duty by Orthopedics and his paperwork shows otherwise.  The Army paperwork also states that he was to be released pending completion of physical therapy (PT) once again the paperwork stated that he had not completed PT. 

3.  The applicant provides copies of his AD orders, his Statement of Medical Examination and Duty Status, his report from his Orthopedic Physician Assistant, his 2002 Standard Form (SF) 600 (Chronological Record of Medical Care), his Patient Needs & Health Assessment form, his 2004 SF 600, his DA Form 3349 (Physical Profile), a Commander's Performance Statement, his Optional Form 275 (Medical Record Report), his assignment orders, his AD retention orders, his AD separation orders, his DD Form 214 (Certificate of Release or Discharge from AD), his Physical Disability Separation memorandum, and his discharge orders, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the United States Army Reserve (USAR), in pay grade E-1, on 11 August 1998, for 8 years.  He was promoted to pay grade E-4 on 1 July 2001.

2.  The applicant was ordered to active duty in support of Operation Enduring Freedom, on 15 March 2003, for 365 days.

3.  The applicant was reassigned to Holding Detachment on 23 April 2004, for the purpose of medical reasons.  On 1 May 2004, the applicant was issued orders extending his mobilization.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 June 2004, shows the applicant was admitted to the hospital on 31 March 2004, for a vehicle accident in which he suffered a broken right patella (kneecap). The medical opinion was the injury was incurred in the line of duty.

5.  Orders Number A-06-405647, dated 15 June 2004, were issued retaining the applicant on active duty to participate in a Reserve Component medical holdover medical retention processing program for completion of medical care and treatment.  

6.  Permanent Orders Number 174-004, dated 22 June 2004, were issued assigning the applicant to the California Community Based Health Care Organization (BHCO) to receive medical care and treatment for 179 days.  Orders Number A-06-405647A01, amended this period of active duty to 358 days.  

7.  A SF 600, dated 31 March 2005, states that the applicant was involved in a motor vehicle accident on 31 March 2004 in which he sustained a fractured right patella.  Two vertical pins and a figure 8 wire were placed in his knee immobilizer.  He was cleared for full duty by orthopedics and had completed he physical therapy program.  He was able to be released from active duty (REFRAD) at that time.

8.  The applicant's Patient Needs & Health Assessment form, dated 13 April 2005, notes "REFRAD pending completion of PT."

9.  A document dated 28 April 2005, shows the applicant returned to duty on that date and was doing well.  However, he was still not yet ready to return to full duties. A profile restriction was completed for him to take to his commanding officer for definitive recommendation.

10.  The applicant was REFRAD on 30 April 2005, under the provisions of Army Regulation 635-200, Chapter 4, at the completion of required active service.  The DD Form 214 states the applicant was retained on active duty for medical retention processing effective 15 June 2004.  The applicant was transferred to a Reserve unit.

11.  Medical notes from the applicant's Orthopedic Physician Assistant, dated 25 May 2005, states the applicant was a 25 year old Reserve demobilized in April 2005 who was seeking a second opinion for a MEB of his knee injury, it was recommended the Army accomplish a MEB, because the injury occurred on AD.

12.  An undated SF 600 shows the applicant was injured in Iraq on 31 March 2004, when he was rear-ended while standing outside his vehicle.  PT was ordered for 6 weeks, PT was put on hold and applicant completed exam for care of increased pain in right knee on 26 August 2004.  Pins were removed from his right knee without incident on 15 September 2004.  The applicant was placed on convalescent leave from 16 September to 30 September 2004.  He completed follow-up post-op examination on 4 October 2004 and PT was resumed.  On 28 January 2005, the applicant complete PT for post-op pin removal to right knee and had surgery to repair left middle finger laceration.  Recovery uneventful and he received occupational therapy.  On 3 February 2005, the applicant completed follow-up visit with his Orthopedic Surgeon.  He was to continue with additional PT from 9 February to 10 May 2005.  REFRAD was pending completion of PT and receipt of optimal benefit summary.

13.  The applicant was issued a permanent profile of 113111, on 18 July 2005, due to right knee pain.  The profile stated the applicant needed a MEB/Physical Evaluation Board (PEB).  His assignment limitations were no impact activities such as jumping; no running; no formation running; no ruckmarching or marching of any type; no prolonged standing, maximum time per episode 30 minutes without 5 minutes rest; no lifting or carrying, maximum weight 20 pounds; upper and lower body weight training at own pace and tolerance; and no sit-ups.

14.  A Report of Medical Examination, dated 29 July 2005, stated the applicant underwent an examination for the purpose of a medical board.  

15.  A Medical Record Report, dated August 2005, from a family practice physician, provided a narrative summary and directed a MEB for the applicant due to the chief complaint of right patellar pain.  The physician concluded that the applicant did not meet retention standards per Army Regulation 40-501, Chapter 3, paragraph 3-14b.  Referral to a PEB was recommended.

16.  In a Commander's Performance Statement, dated 12 August 2005, the applicant's commander stated that he had been informed that the applicant would be evaluated by a PEB to determine his ability to perform in his primary military occupational specialty (MOS) 31B due to the limitations imposed by his condition.  The applicant's condition stemmed for a broken patella, knee cap.  The Soldier was serving on active duty in a combat zone when he was involved in a vehicle accident which caused the condition.  Because of complications of the injury, the PT and medications given had not been helpful.  The Soldier was no longer able to perform his duties.  Correctional tasks he was unable to perform included, but were not limited to the following:  conducting frisk searches (bending, squatting), conducting strip searches (bending, squatting), conducting shakedown searches (bending, squatting, lifting), escorting prisoners (maintaining control of prisoners, running), responding to disturbances (physically separating prisoners fighting), restraining prisoners (physically moving a prisoner using force), applying hand and leg irons (bending, squatting), defending himself/defending others (using physical force), and the limitations listed on his profile.  The Soldier walked with a slight limp and complained of pain after completing the duty day.  The commander strongly recommended the applicant be separated from the Army based upon his physical restrictions and profile.

17.  A certificate from the records custodian, dated 31 August 2005, certified that the applicant was scheduled to be separated from the service on 10 August 2006.

18.  On 4 October 2005, the applicant appeared before a MEB and did not present views in his own behalf.  The MEB considered the applicant's condition of chronic knee pain status post patella fracture.  The MEB found the applicant unfit for duty in accordance with Army Regulation 40-501, paragraph 3-14b, and recommended forwarding of the case to the PEB for further disposition.

19.  On 20 December 2005, the applicant concurred with the findings and recommendations of the MEB.

20.  On 9 January 2006, a PEB convened and considered the applicant's condition of chronic right knee pain secondary to patellar fracture caused by a motor vehicle accident in Iraq.  Status post operative repair with residual pain that prevented full duty and Soldier function due to pain and profile restrictions.  The PEB noted that the applicant was unable to fully function as a military police officer according to the command.  He had no significant loss of motion or joint instability.  The Solider returned to drilling status during recovery but never improved enough to return to duty.  The Soldier was considered unfit when he left active duty.  Rated for pain, slight, frequent.  

21.  The PEB also noted that the applicant's functional limitations in maintaining the appropriate level of mobility, caused by the physical impairments recorded, made him medically unfit to perform the duties required of a Soldier of his rank and primary specialty.  The PEB recommended a disability percentage rating of 10 percent and that the applicant be separated with severance pay, if otherwise qualified.  The membership of the PEB considering the case included a voting member from the Reserve Components.  

22.  On 9 January 2006, the applicant, after conferring with his legal counsel, concurred with the findings and recommendation of the PEB held on 28 December 2005.

23.  A Physical Disability Separation memorandum, dated 20 January 2006, advised the Commander, 341st Military Police Company, San Jose, California, that Order Number D017-03, dated 18 January 2006, authorized the applicant's discharge with severance pay.  Action would be taken by the unit to ensure the Soldier was paid severance pay provided the Soldier had complete at least 6 months combined service.  The Soldier was credited with 3 years, 11 months, and 23 days of combined service and 7 years, 4 months, and 19 days of service for basic pay, as of 18 January 2006.

24.  The applicant was discharged from the USAR on 18 February 2006, with disability severance pay in the grade of sergeant based on 3 years, 11 months, and 23 days service.  He was discharged with 10 percent disability from a combat related injury.

25.  Army Regulation 635-200, Chapter 4, prescribes the policies and procedures for the separation of enlisted Soldiers for expiration of service obligation.  Chapter 4 specifies that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.  

26.  Army Regulation 40-501 provides policy on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 3 lists the various medical conditions and physical defects that may render a Soldier unfit for further military service.  Paragraph 3-4 pertains to general policy.  It states that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the service.  It also states that physicians are responsible for referring Soldiers with conditions listed in this chapter to an MEB.  It is crucial that MEBs are complete and reflect all of the Soldier's medical problems and all physical limitations the Soldier has.  Determination of fitness or unfitness will be made by a PEB.  The PEB, under the PDA (Physical Disability Agency), will consider the results of the MEB, as well as the requirements of the Soldier's MOS in determining fitness.
Army Regulation 40-501, Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), gives the various medical conditions and physical defects which may render a Soldier unfit for further military service.

27.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, Chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.

28.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

29.  Army Regulation 635-40 also states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant entered on active duty for one year in support of Operation Enduring Freedom on 15 March 2003.  On 31 March 2004, he was admitted to the hospital as a result of a vehicle accident and suffered a broken right kneecap.  On 23 April 2004 and 22 June 2004, he was extended on active for medical care and treatment, with REFRAD upon completion of his treatment.

2.  The applicant was REFRAD on 30 April 2005,at the completion of required active service.  His DD Form 214 also noted that he was retained on active duty for medical retention processing.  

3.  The applicant was transferred to a Reserve unit.  On 18 July 2005, he was issued a permanent profile of 113111, due to right knee pain, and recommended for a MEB/PEB.  The applicant was found physically unfit for further duty by a MEB and PEB under the Reserve Components.  He concurred with the findings and recommendations of each board.  He was honorably discharged from the USAR on 18 February 2006, with 10 percent disability from a combat related injury, with entitlement to severance pay.

4.  In view of the circumstances in this case, the applicant was not entitled to a physical disability discharge from active duty based on regulatory authority.  The applicant was appropriately continued on active duty for treatment.  Based on his continued medical condition, he was processed through the physical disability system as a Reserve Components Soldier.  He was separated from the USAR by reason of physical disability, with severance pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SP___  __JI ____  __QAS___  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.




      _________
                CHAIRPERSON




INDEX

CASE ID
AR20060010710
SUFFIX

RECON

DATE BOARDED
20070403
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060010710


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508