RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 August 2007
	DOCKET NUMBER:  AR20070000171 


	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

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. Bernard P. Ingold

Chairperson

Mr. Thomas M. Ray

Member

Mr. Gerald J. Purcell

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, that he be granted a 20-year retirement. 

2.  The applicant states, in effect, that he completed 10 years, 8 months, and 4 days of net active service in the Puerto Rico Army National Guard (PRARNG), and 9 years, 1 month, and 1 day of Regular Army service, for a total of 19 years, 9 months, and 5 days of net active service.  He was discharged from active duty but was not retired.  He states that he was informed by personnel from Fort Buchanan, Puerto Rico, personnel office, that they could not do anything until he arrived at Fort Jackson, South Carolina, US Army Transition Point, in reference to retired status.  At Fort Jackson, he was informed that it was too late.  He really did not understand - he was qualified for retirement.

3.  The applicant provides a copy of his NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service), a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his separation orders, a copy of his NGB Form 23 (Army National Guard Retirement Points History Statement), a copy of his ARPC Form 249-2-E (Chronological Statement of Retirement Points), and a copy of his Enlisted Record Brief (ERB), in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the PRARNG on 20 November 1985, and was trained as a light weapons infantryman, in military occupational specialty (MOS), 11B.  He was advanced to pay grade E-4 effective 9 November 1993.  He served until he was honorably separated from the PRARNG on 23 July 1996.  He had completed 10 years, 8 months, and 4 days of service in the PRARNG.

2.  The applicant enlisted in the Regular Army on 24 July 1996, in MOS, 31B, Military Policeman (MP), in pay grade E-1.  He was promoted to pay grade E-4 effective 1 June 1998. 

3.  On 17 August 2004, the applicant was given a physical examination.  He was diagnosed as having major depression and chronic low back pain.  He was issued a physical profile of 113113.  



4.  On 19 August 2004, the commander prepared a memorandum for the Commander, Headquarters, Attn:  Enlisted Strength Management, Fort Buchanan, Puerto Rico, Subject:  Commander’s Evaluation for MEB (medical evaluation board).  The commander stated that the applicant was informed that an MRB (medical retention board) would evaluate his ability to perform in his PMOS (primary MOS) based on the limitations imposed by his permanent physical profile.  The applicant met the height and weight standards of Army Regulation 600-9.  He was 72 inches and 218 pounds.  He passed his APFT on August 2002 with a score of 60.  Due to his profiles, he had not taken a record APFT in over 24 months.  He had been assigned to the company for approximately 5 years.  During this time, his performance as an MP had been outstanding.  However, his profile prohibited him from conducting his duties to the extent the MP Corps demanded.  Because of his profile, he was restricted from performing duties in the MTOE (Modified Table of Organization and Equipment) unit and at his own skill level.  In his opinion, the commander stated that there was no doubt the applicant could not physically perform his duties within the MP Corps world wide deployable mission.

5.  On 29 November 2004, an MEB Psychiatric Addendum was prepared at the United States Army Health Clinic, Fort Buchanan, Puerto Rico.  The applicant was diagnosed as having major depressive disorder versus adjustment disorder with depressed mood as manifested by patient isolation, having crying episodes, decreased sleep, feeling anxious, feeling irritable, and having problems with memory.  Precipitating Stressors; having been charged with criminal Federal charges that were later dropped.  His predisposition was unknown; his impairment for further military duty was marked; and his impairment for social and industrial adaptability was mild.  His condition was considered to have been incurred in the Line of Duty (LOD), did not exist prior to service, and service aggravation was not applicable.

6.  The attending psychiatrist recommended that the applicant be referred to a physical evaluation board (PEB) for determination of fitness for duty as he failed to meet retention standards in accordance with Army Regulation 40-501, chapter 3, paragraph 32b and c.  The personal appearance of the applicant before a PEB and disclosure of information to him from this report would not be deleterious to his physical or mental health.  He had the capacity to understand and to participate in PEB proceedings.  At the time, the applicant did not pose a danger to himself or others.




7.  On 6 December 2004, a finalized narrative summary was prepared by the applicant's attending physician, at the USA Health Clinic, Fort Buchanan.  The applicant was diagnosed as having low back pain status-post laminectomy, moderate/constant and major depressive disorder.  The physician recommended that the applicant appear before a PEB for determination of fitness for duty as he failed to meet retention standards in accordance with Army Regulation 40-501, chapter 3, paragraph 41e. 

8.  On 7 December 2004, the applicant was issued a permanent profile of 113113 due to low back pain and major depression disorder, with no APFT (Army Physical Fitness Test). 

9.  On 16 December 2004, the applicant was counseled regarding his 15 years or more but less than 20 years of service.  He was provided a copy of the 7 August 2002, memorandum, Subject:  Counseling of Soldiers with 15 years of Service, from the PEB, Fort Sam Houston, Texas.  The memorandum stated that due to the discontinuance of the Temporary Early Retirement Authority (TERA), it was highly possible that Soldiers with 15 years of service (but less than 20) could be separated from the Army with severance pay after undergoing a PEB.  He acknowledged receipt of this counseling by affixing his signature to this memorandum.

10.  On 17 December 2004, the applicant's case was considered by an MEB.  The MEB diagnosed the applicant as having low back pain status-post laminectomy, moderate/constant and major depressive disorder vs adjustment disorder.  The applicant did not present views in his own behalf.  His ailment was ruled to have been incurred in the LOD, while he was entitled to base pay, and did not exist prior to service (EPTS).  The MEB determined that he failed to meet retention standards in accordance with Army regulation 40-501.  The applicant did not desire to continue on active duty.  The findings and recommendations of the MEB were approved on 20 December 2004.  He agreed with the MEB's findings and recommendation on 21 December 2004.  He was referred to a PEB. In item 30 (Continuation), of his MEB proceeding, the entry "I certify that this medical board accurately covers all of my medical conditions, that all health records pertaining to my case have been turned over to the proper authorities and that I have been counseled in accordance with C-6 (chapter 6), AR 635-40."  His signature was also entered in the "Continuation" block.  

11.  On 27 January 2005, he extended his enlistment for 3 months.   A new ETS (expiration of term of service) of 24 May 2005 was established for him.


12.  On 1 February 2005, the applicant appeared before an informal PEB.  He was diagnosed as having major depressive disorder and low back pain.  The PEB concluded that the applicant’s medical condition prevented reasonable performance of duties required by grade and specialty.  The PEB indicated that the applicant had applied for continuance of active duty (COAD).  The PEB found the applicant physically unfit and recommended a combined rating of 20 percent and separation with severance pay, if otherwise qualified.  The PEB indicated that his separation was not based on a disability resulting from an injury received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in LOD (Line of Duty) during a period of war as defined by law.  

13.  The applicant nonconcurred with the results of the informal PEB on 10 February 2005.  He indicated he desired a formal hearing without personal appearance, he indicated that he would provide a statement identifying his disagreement, and he requested representation by counsel.

14.  On that same day, the applicant provided his statement.  He stated that he did not agree with the recommended disability percentage of 10 percent for his back.  He injured his back during an arrest in the LOD while he was stationed as an investigator in Fort Clayton, Panama, in 1998.  During this whole process, and during and after his back operation, huge anomalies occurred.  He was illegally operated on by a foreign doctor without the approval of a military doctor or liaison and who removed a disk (lumbar area) without an MRI or X-rays, which they took after the operation.  A few days later a nurse told him that she overheard a conversation between the doctor and his assistant and she quoted, "that is better to operate on him because the "gringos" pay more for that kind of operation."  He stayed in the hospital for at least 3 weeks without feeling his legs. It was a stressful experience for his family.  The OIC (officer in charge) was relieved of his duties and from the military due to non compliance of standard procedure.  In conclusion, he stated that for this reason, his whole military career went down the drain and that his PEB and medical documentation should be reconsidered.

15.  On 17 February 2005, the President, PEB, Fort Sam Houston, Texas, prepared a memorandum for the Commander, Dwight David Eisenhower Army Medical Center (DDEAMC), PEBLO (PEB Liaison Officer), Fort Gordon, Georgia, Subject:  Rebuttal of PEB Findings.  In his memorandum, the President stated that he had reviewed the applicant's rebuttal to the informal PEB findings.  He found that no change to the original findings was warranted.  The applicant's rebuttal contained no new objective medical or performance evidence which would warrant any change in his disability rating.

16.  On 18 February 2005, the applicant requested to change his election FWOA (formal without appearance) and be present during his formal hearing.  He believed this change would be beneficial to his case. 

17.  On 1 March 2005, the Chief, PAD (patient administration division), Headquarters, Dwight David Eisenhower Army Medical Center, Fort Gordon, requested that TDY (temporary) orders be published, pertaining to the applicant, for a formal hearing at the PEB, Fort Sam Houston, on 4 March 2005.  
He was scheduled to meet with legal counsel on 3 March 2005.

18.  On 1 March 2005, the applicant's counsel requested a one-week extension because the applicant was unable to secure TDY orders from his unit for his trip to Fort Sam Houston so that he could be present at his formal PEB.  The President, of the PEB, approved his request on 2 March 2005.

19.  On 10 March 2005, the applicant concurred with the original results of the informal PEB conducted on 1 February 2005, and waived a formal hearing of his case. 

20.  The applicant submitted a request, which is undated, for continuance on active duty (COAD) to the Commander, Army Human Resources Command (AHRC)-Alexandria, PDB (Physical Disability Branch).  He stated that if he was determined unfit because of physical disability, he hereby applied for COAD, and applied for assignment to duties so that he was able to perform within the limitations imposed by his physical disabilities.  He indicated that he had 15 years of total service but less than 20.

21.  On 21 March 2005, the President, PEB, prepared a memorandum for the Commander, USAPDA (USA Physical Disability Agency), Walter Reed Army Medical Center, Washington, DC, Subject:  Continuance of Disabled Persons on Active Duty [the applicant].  The President stated that the finding of unfit was approved and the case was forwarded for consideration of the applicant to remain on active duty as an exception to policy under the provisions of Army Regulation 635-40, chapter 6.  The President recommended that the request be denied due to the physical impairment(s) described on the PEB proceedings and in available medical records.  The President further stated that current impairment prevented the reasonable performance of duties required of the applicant's grade and military specialty.



22.  On 28 March 2005, the Chief, Operations Division, PDA, WRAMC (Walter Reed Army Medical Center), prepared a memorandum through the Commander, AHRC-Alexandria, for the Career Branch Chief, Military Police Career Management Branch, Subject: COAD of a Disabled Soldier [the applicant].  The PDA official stated that the applicant's request was forwarded for consideration as an exception to policy under the provisions of Army Regulation 635-40, chapter 6-10.  The PDA official requested expeditious processing due to statutory and regulatory guidance pertaining to the permissible processing time authorized for disability cases.  

23.  The applicant's career branch completed a TAPC-PD Form 28 (Request for COAD) for the Chief, Operations, PDA, WRAMC.  The COAD analyst, retention management branch, and the career branch manager recommended that the applicant be released from active duty with 20 percent severance pay.  

24.  On 11 April 2005, the Chief, Operations, PDA, WRAMC, prepared a memorandum for the Commander, DDEAMC, PEBLO, Fort Gordon, Subject:  COAD [the applicant].  The PDA official informed the commander that the applicant's request was not favorably considered.  

25.  The applicant's NGB Form 23B, dated 29 April 2005, shows that he had completed 10 years, 8 months, and 4 days, of qualifying service for retirement purposes.  

26.  The applicant was honorably discharged on 24 May 2005, under the provisions of Army Regulation 635-40, paragraph 4-24B(3), physical disability, with severance pay, in the pay grade of E-4, and was given a 20 percent disability rating.  He completed 9 years, 1 month, and 1 day, of net active service this period.  He was paid severance pay in the amount of $35,240.40.  

27.  The applicant's Summary of Retirement Points, dated 11 February 2006, shows that he had completed over 19 years, 6 months, and 5 days of qualifying service for retirement pay purposes.

28.  On 13 August 2007, the United States Army Human Resources Command (AHRC)-St. Louis prepared another Summary of Retirement Points which shows that he completed 19 years, 6 months, and 6 days of qualifying service for retirement pay purpose. 



29.  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 AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

30.  Physical evaluation boards 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.

31.  Chapter 6, of Army Regulation 635-40, pertains to continuation on active duty of unfit Soldiers.  It states that Soldiers who have been determined unfit by the PDES (Physical Disability Evaluation System) may be continued on active duty as an exception to policy.  The Secretary of the Army (SA), or their designee, may involuntarily continue Soldiers determined unfit by the PDES in consideration of their service obligation or special skill and experience.  A COAD will be approved for any period of time up to the last day of the month in which the Soldier attains 20 years of active federal service for purposes of qualifying for length of service retirement.  

32.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 of that regulation sets policies and procedures for voluntary retirement of Soldiers because of length of service.  

33.  Paragraph 12-3 pertains to general provisions of laws governing retirement.  It states, in pertinent part, that years of service for retirement are computed by adding all AFS in the Armed Forces and service computed under Title 10, United States (US) Code, Section 3925.  For Regular Army, ARNGUS, and USAR Soldiers retiring from an AD status, the date of retirement is the first day of the month in which the Soldier is released from AD.  For ARNGUS and USAR Soldiers not on AD, the date of retirement is the first day of the month following the month in which retirement orders are issued. 
34.  Paragraph 12-4, implements Title 10, United States (US) Code, section 3914 which governs 20-year retirement by a Soldier of the Regular Army, the Army National Guard of the United States and the U.S. Army Reserve.  In pertinent part, the regulation provides that a request for retirement may be submitted by a Soldier who has completed 20 years, but less than 30 years, of AFS in the U.S. Armed Forces.  Approval of the request for retirement will be at the discretion of the Secretary of the Army.

35.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified
and if they so request, will be transferred to the Retired Reserve.

36.  Chapter 6, of the same regulation, pertains to transfer to and from the Retired Reserve.  Paragraph 6-1 of Army Regulation 140-10 pertains to eligibility. Subparagraph 6-1a(2) states that eligibility Soldier must request transfer if they have completed a total of 20 years of active or inactive service in the US Armed Forces.

37.  The term "good years" is an unofficial term used to mean years in which 
50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was determined medically disqualified for retention and was physically unfit to perform his duties.  His medical condition prevented reasonable performance of duties required by his grade and specialty.

2.  The applicant desired to continue on active duty, after his informal PEB, and applied for assignment to duties that he was capable of performing within the limitations imposed by his physical disabilities.

3.  The applicant’s request for continuation on active duty, as an exception to policy, was properly considered and denied.  This would appear reasonable because his current impairment(s) prevented the reasonable performance of duties required of his grade and specialty and he would have required over 10 more years of active duty to qualify for a regular retirement.  



4.  In summary, the applicant had completed 10 years, 8 months, and 4 days of qualifying service, in the PRARNG, and 9 years, 1 month, and 1 day of total active service, for a total of 19 years, 6 months, and 6 days of qualifying service which was less than 20 years necessary for the purpose of qualifying for non-regular retirement.  His summary of retirement points was updated by AHRC-St. Louis to show that he had completed 19 years, 6 months, and 6 days of qualifying service for the purpose of qualifying for a non-regular retirement.  His request to remain on active duty was denied for reasons which took both the Army’s and the applicant’s best interest into consideration.  As such, the evidence supports the conclusion that the applicant was properly discharged on 24 May 2005, for disability, with severance pay.  

5.  The evidence shows that the applicant concurred with the recommendation of the PEB to be discharged and his COAD, which was denied, prevented him from remaining on active duty to complete 20 years of service for a Regular Army retirement.  Therefore, there is no basis for granting the applicant's request.

6.  It is noted that on a non-regular Army retirement, he would not have received any benefits until he was age 60 (2028).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___BI___  __GP____  ___TMR_  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.




_____Bernard P. Ingold_______
          CHAIRPERSON
INDEX

CASE ID
AR20070000171
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070830
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20050524
DISCHARGE AUTHORITY
AR 635-40, para 4-24B(3)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
136
2.

3.

4.

5.

6.