RECORD OF PROCEEDINGS


	IN THE CASE OF:	     


	BOARD DATE:	    19 June 2007
	DOCKET NUMBER:    AR20060011117 


	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.


X

	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, that his record be corrected to show he completed his mobilization of 365 days with possible extensions; that he receive all awards he would have received had he remained mobilized; and that he be provided all pay and allowances due as if he had completed the mobilization.  

2.  The applicant states, in effect, that he was sent home for medical conditions that were improperly diagnosed without an examination having been completed.  He claims the hospital commander directed his release even though he had undergone a Military Occupational Specialty (MOS) Medical Retention Board (MMRB) that indicated a non-deployable condition, but he was not being deployed, he was being mobilized. 

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; 108th Division (Institutional Training) Orders Number 05-116-00051, dated 26 April 2005; Headquarters, 81st Regional Readiness Command Memorandum, dated 21 September 2003; Headquarters, 
108th Division Memorandum, dated 22 June 2003; Approval of MOS/Medical Retention Board Memorandum, undated; Physical Profiles (DA Form 3349); 
Pre-Deployment Health Assessments (DD Form 2795); Chronological Record of Medical Care (SF 600); Initial Medical Review-Annual Medical Certificate 
(DA Form 7349); Headquarters, United States Army Training Center and Fort Jackson Memorandum, dated 10 June 2005; Memorandum for Record, dated 
10 June 2005; United States Army Medical Department Activity Memorandum, dated 10 June 2005; Headquarters, United States Army Training Center and 
Fort Jackson, Orders Number 161-170, dated 10 June 2005; Active Duty Report 
(DD Form 220); Medical Reports; Internal Medicine Treatment Note, dated 22 July 2005; Statement of Medial Examination and Duty Status (DA Form 2173); Department of Veterans Affairs Rating Decision, dated 19 October 1999; Separation Document (DD Form 214); Noncommissioned Officer Evaluation Reports (DA Form 2166-8); Appointment of Investigating Officer Memorandum, dated 4 August 1997; and Report of Proceedings by Investigating Officer/Board of Officers (DA Form 1574).

CONSIDERATION OF EVIDENCE:

1.  On 21 September 2003, an MOS/Medical Retention Board (MMRB) was convened to determine the applicant’s ability to perform the duties of his MOS, in a worldwide environment, based on the physical limitations imposed by his physical profile.  

2.  On 21 September 2003, the MMRB recommended that the applicant be retained in his Primary Military Occupational Specialty (PMOS) and that he be assigned within the limitations imposed by his permanent physical profile.  The MMRB further indicated the applicant's physical profile will be coded C (limitations in running, marching, standing for long periods) and W (returned to duty at MMRB).

3.  The applicant's Official Military Personnel Record contains 108th Division (Institutional Training) General Orders Number 05-116-00051, dated 26 April 2005, which ordered him to active duty on 27 May 2005, in support of Operation Enduring Freedom. 

4.  On 2 June 2005, the applicant completed a Pre-Deployment Health Assessment (DD Form 2795).  On page 2, question number 8 (Do you currently have any questions or concerns about your health), the applicant noted his cholesterol and indicated he was on medication, had a permanent profile, and had previously undergone an MMRB.  After interviewing and examining the applicant, the nurse practitioner determined the applicant was deployable.  The applicant signed this document certifying that the responses on the form were true.

5.  On 2 June 2005, the Soldier's Readiness Processing (SRP) Site Physician completed an Initial Medical Review-Annual Medical Certificate (DA Form 7349). After reviewing the applicant's previous MMRB, he found the applicant unfit and recommended that he be released from active duty (REFRAD) under the provisions of paragraph 9-13 and 9-14, Army Regulation 40-501.  The Moncrief Army Community Hospital Commander concurred with the SRP Physician and recommended the applicant be REFRAD.

6.  On 10 June 2005, the SRP Site Physician completed a Pre-Deployment Health Assessment, in which he found the applicant non-deployable, and the Acting Garrison Commander requested the applicant be REFRAD.  In the request, the commander stated his justification and reason for the request was that the applicant had been found unfit for duty and non-deployable due to
non-radicular pain involving the cervical, thoracic, lumbosacral or coccygeal spine.  He further noted that the applicant had undergone an MMRB.  The applicant's REFRAD was approved and the applicant was accordingly REFRAD and returned to his Reserve unit, effective 16 June 2005, by reason of physical disability.  


7.  During the processing of this case, an advisory opinion was obtained from the Medical Policy Branch, Officer of the Deputy Chief of Staff, G-1, Department of the Army.  This official confirms the applicant was properly REFRAD and his case was processed in accordance with existing personnel policy guidance.  He further indicates the applicant's mobilization orders, which ordered him to active duty as a member of the Reserve Component unit stipulated that it was for the period indicated unless sooner released or extended.  He concludes by stating that the Army regulatory guidance was followed in the applicant's case and he was REFRAD accordingly.  

8.  On 18 May 2007, the applicant was provided a copy of the G-1 advisory opinion in order to have the opportunity to respond.  To date, he has failed to reply.  

9.  Army Regulation 40-501 (Standards of Medical Fitness) provides guidance on medical fitness standards for induction, enlistment, appointment, retention and related policies and procedures.  Paragraph 3-39 outlines causes for referral to a Medical Evaluation Board (MEB), which includes nonradicular pain involving radicular pain involving the cervical, thoracic, lumbosacral, or coccygeal spine, whether idiopathic or secondary to degenerative disc or joint disease, that fails to respond to adequate conservative treatment and necessitates significant limitation of physical activity.  

10.  Paragraph 9-13 of the version of the medical fitness standards regulation in effect at the time provided guidance on the transfer of Reservists who did not meet medical fitness standards.  It stipulated, in pertinent part, that Reservists who are found unfit may request continuance in an active status and the request among many other requirements must include a statement on how the rigors of active service could aggravate the conditions so that further hospitalization, time lost from duty, or a claim against the government might result.  Paragraph 9-14 provided guidance on the disposition of temporarily disqualified Reservists.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was improperly REFRAD and his request for all associated awards, benefits, and pay was carefully considered.  However, although the applicant had previously been processed through an MMRB at his Reserve unit in 2003, and was retained in an active Reserve status, during his pre-deployment screening in 2005, medical officials determined he suffered from a non-deployable medical condition and as a result, he was REFRAD and returned to his unit in accordance with applicable mobilization policy, as confirmed by the DA G-1.  Therefore, it would not be appropriate to provide the applicant awards, benefits and pay for active duty service he never performed.  
2.  The applicant is advised that he should pursue medical processing through USAR channels regarding the non-deployable condition from which he suffers to determine if he would be eligible for mobilization in the future.  During 
pre-deployment processing, medical officials are obligated by law and regulation to evaluate medically disqualifying conditions that exist, and to determine if the rigors of active service could aggravate the conditions so that further hospitalization, time lost from duty, or a claim against the government might result, and to release members who are determined to be unfit for physically unfit for active duty mobilization (deployment).  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  __X __  __X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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




INDEX

CASE ID
AR20060011117
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/06/19
TYPE OF DISCHARGE

DATE OF DISCHARGE
2005/06/16
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.