RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 16 August 2007
DOCKET NUMBER: AR20060014353
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.
Ms. Catherine C. Mitrano
Director
Mrs. Victoria A. Donaldson
Analyst
The following members, a quorum, were present:
Mr. William D. Powers
Chairperson
Mr. William Blakley
Member
Mr. Donald L. Lewy
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 to be placed back on Title 10 status (Active Guard Reserve) while he is recovering from his injuries.
2. The applicant states that Tricare was slow in responding for a second opinion when the original neurosurgeon stated that no further care was needed. The applicant continues that when the second opinion was completed it was found that a bone spur and cartilage has grown over the plate implanted by the first neurosurgeon. The applicant further stated that immediate neurosurgery was needed to correct the situation. The applicant contends that he was retired three days after the second opinion and that the second surgery occurred ten days after his discharge.
3. The applicant provides 15 pages of medical documentation in support of this application.
CONSIDERATION OF EVIDENCE:
1. Records show that on 27 January 2005 the applicant sustained a lower back, left elbow, and left knee injury in the line of duty while stationed in Iraq.
2. The applicant was discharged from the Alabama Army National Guard on 9 September 2006 and transferred to the Retired Reserve.
3. The applicant's records contain a Department of Veterans Affairs (DVA) rating decision, dated 19 December 2006. The DVA decision shows that the applicant was awarded 100 percent for service-connected post-traumatic stress disorder, sleep apnea, headaches, tinnitus, cervical disk disease (claimed as a neck injury), and a lumbosacral strain.
4. An advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau for consideration with this application. The Chief, Personnel Division recommended disapproval of the application.
5. The Chief, Personnel Division opined that the National Guard Bureau Line of Duty Section shows the applicant was found to be medically unfit for retention in accordance with Army Regulation 635-40 and was approved for 100 percent disability from the DVA. The Chief, Personnel Division further stated that the applicant was medically retired on 9 September 2006 and is receiving full disability entitlements.
6. The Chief, Personnel Division provides that paragraph 3-7 of Army Regulation 635-40 states that a Soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with their consent, be retained in the service until they have attained maximum hospital benefits and completion of disability evaluation.
7. The applicant was provided a copy of the advisory opinion for review and rebuttal. The applicant did not provide a written response to the advisory opinion.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he should be returned to Title 10 status until the completion of his recovery was carefully considered and determined to be without merit.
2. The applicants injuries were determined to be incurred in the line of duty and he was found to be unfit for retention based on his injuries. The applicant was separated appropriately and he was transferred to the Retired Reserve.
3. Evidence shows that the applicant was determined to have a 100 percent disability rating by the DVA and is receiving entitlements based on that rating.
4. Based on the foregoing, the applicants disability evaluation was completed and he was separated appropriately. There is no evidence in the available records and the applicant has not provided sufficient evidence which shows that his disability processing was not completed in accordance with applicable regulation or that he has not received benefits and or medical treatment entitled as a result of his disability.
5. Therefore, there is basis to grant the relief requested in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
_DLL____ _WDP __ __WB___ 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.
__William D. Powers__
CHAIRPERSON
INDEX
CASE ID
AR
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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