RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 July 2007
	DOCKET NUMBER:  AR20070000874 


	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. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. William Blakely

Member

Mr. David Haasenritter

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 a DA Form 2173 (Statement of Medical Examination and Duty Status) be prepared to show his 1991 back and knee injuries were incurred in the line of duty.  He also requests that the Physical Evaluation Board (PEB) Proceedings be corrected to show these injuries were duty-related.  

2.  The applicant states, in effect, that his medical records reflect that he injured his lower back and left knee while he was on active duty but the PEB determined that these injuries were not incurred in the line of duty.  He contends that the PEB did not have his complete medical records regarding the details surrounding his back and knee injuries at the time of review; therefore, the determination could not be rendered that his injuries did occur in the line of duty.  

3.  The applicant also states, in effect, that he injured his left knee while performing physical training in basic training in 1984 and that he re-injured his left knee in July 1991 while working in the motor pool.  He contends that in December 1990 during a medical screening he admitted to experiencing intermittent back pain but denied ever injuring his back or needing treatment for pain.  In March 1991, while serving on active duty in Saudi Arabia, he injured his lower back while lifting heavy tools out of a tank, he was transported to the hospital for evaluation and treatment, there was no diagnostic test performed, and he was placed on light duty and prescribed pain medication.   

4.  The applicant further states that he received a routine physical examination in November 2001 which identified the need for an orthopedic evaluation of his right hip, knee pain, and back pain.  He contends that he received an MRI on 
20 November 2001 which revealed significant abnormalities, that he submitted the results of the MRI to his command for further guidance and instruction, and that from that date he continued to perform duties as assigned with limitations at all drills and training events.  When his unit was called for deployment for Operation Enduring Freedom in August 2004 medical personnel revealed to him that he had injured his back and knee during Desert Storm which rendered him non-deployable.  He contends that he was scheduled for a PEB in March 2005, that he was found unfit for retention, and that he was honorably discharged from the Alabama Army National Guard and transferred to the Retired Reserve.

5.  The applicant provides service medical records; service personnel records; Department of Veterans Affairs (DVA) medical records and documentation; and the PEB Proceedings. 


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Alabama Army National Guard on 18 October 1983.  

2.  The applicant provided a service medical record, dated 1984, which shows he injured his left knee when he fell on the gym floor during basic training.  

3.  The applicant provided a DA Form 5181-R (Screening Note of Acute Medical Care), dated 13 December 1990, which states, in pertinent part, that the applicant complained of back pain for two years. 

4.  The applicant provided a DD Form 689 (Individual Sick Slip), dated 18 July 1991, which shows he sustained a “knee injury.”  This slip shows the medical officer indicated the injury was in the line of duty.

5.  The applicant provided a service medical record, dated 10 August 1991, which shows he was treated for lower back pain.  This medical record shows the applicant reported that he had been treated for the same condition in March 1991.  The medical records for March 1991 are not available.  

6.  The applicant provided a service medical record, dated 19 November 2001, which shows he was evaluated for low back pain and right knee pain and swelling.  This medical record states, in pertinent part, that “He states that as for his low back it has been bothering him since 1991 when he was in Saudi Arabia. He states he denies any noted injury, but he has multiple minor blows.” 

7.  On 4 March 2005, the applicant requested that his medical records be forwarded to a non-duty related PEB for a determination of his fitness to remain in an active military status.

8.  On 29 April 2005, a PEB found the applicant physically unfit due to multiple conditions (including low back pain and chronic knee pain) which led to a restrictive profile (no bending, lifting limitations) which were not commensurate with performing the duties of his primary military occupational specialty.  The case was adjudicated as a non-duty related case under the provisions of Department of Defense (DOD) Directive 1332.18 and DOD Instruction 1332.38.  The PEB recommended that the applicant’s disposition be referred for case disposition under Reserve Component (RC) regulations.  The applicant did not concur with the findings but waived a formal hearing.  

9.  On 17 May 2005, the PEB reviewed the applicant’s rebuttal to the PEB findings and determined that no change to the original PEB findings was warranted.  On 14 June 2005, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB’s findings and recommendation.

10.  On 7 November 2005, the applicant was honorably discharged from the Alabama Army National Guard for being medically unfit for retention. 

11.  In support of his claim, the applicant provided an undated statement from his assistant platoon sergeant during the Gulf War.  He attests that he and the applicant served in the Gulf War from 14 January 1991 to 30 July 1991, that in March 1991 the applicant hurt his lower back while trying to lift some very heavy tools out of a truck, and that the applicant was sent to the hospital.   

12.  USAPDA Policy/Guidance Memorandum Number 4 (Processing RC Nonduty-Related Cases), dated 28 February 2005, states, in pertinent part, that DOD Instruction 1332.38, definition E.1.20 (page 9), defines nonduty-reported (sic) impairments as:  “Impairments of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation.  Members with nonduty-related impairments are eligible to be referred to the PEB for solely a fitness determination but not a determination of eligibility for disability benefits.”  

13.  USAPDA Policy/Guidance Memorandum Number 4 states, in pertinent part, that the determination of whether a case is forwarded to the PEB as a nonduty-related case (as opposed to a duty-related case) rests with the RC.  The Soldier may not challenge this determination before the PEB.  

14.  USAPDA Policy/Guidance Memorandum Number 4 also states that RC Soldiers should only request referral to the PEB if they believe they can perform their duties despite their medical condition.  As a nonduty-related case, only the issue of fitness will be adjudicated by the PEB.  Issues relating to line-of-duty, permanent service aggravation, and entitlement to disability compensation will not be considered.  Whether a case comes into the Physical Disability Evaluation System as a duty-related case or a nonduty-related case is the decision of the RC chain of command.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that his medical records reflect that he injured his lower back in 1991 while he was on active duty, the 10 August 1991 medical record he provided shows that he was treated for lower back pain and that he reported that he was treated for the same condition in March 1991.  However, there is no medical evidence of record and the applicant provides none which shows he injured his back in March 1991.  Since there is no evidence to show his August 1991 treatment for back pain was related to any injury in March 1991, and not to his December 1990 report of “complained of back pain for two years,” there is insufficient evidence on which to correct his military records to show he sustained a back injury in 1991 that was incurred in the line of duty.  

2.  The applicant provided a DD Form 689, dated 18 July 1991, which shows he sustained a “knee injury” and the medical officer indicated that the knee injury was in the line of duty.  It is reasonable to presume that a line of duty investigation should have been conducted at that point and a determination would have been made that his knee injury was incurred in the line of duty.  However, it appears this was not done.  Therefore, it would be appropriate at this time to correct the applicant’s military records to show a line of duty investigation was conducted in 1991 and that it was determined his knee injury was incurred in the line of duty.            

3.  The applicant’s request that the PEB Proceedings be corrected to show his back and knee injuries were duty-related was noted.  However, the governing regulation states that the determination of whether a case is forwarded to the PEB as a nonduty-related case (as opposed to a duty-related case) rests with the RC.  The Soldier may not challenge this determination before the PEB.  It appears that the applicant’s RC command made a considered decision that, after successfully participating with his Army National Guard unit for 10 or more years after the 1991 injuries, the applicant’s conditions that resulted in his being found medically unfit for retention were not sufficiently related to those 1991 injures as to be processed as a duty-related case.   Therefore, there is no basis for granting the applicant’s request to correct his PEB to show his injuries were duty-related.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

JS_____  __WB____  __DH____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show a line of duty determination was conducted in 1991 and his knee injury was determined to be in the line of duty. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending his records to 
show he sustained a back injury in 1991 that was incurred in the line of duty or amendment of the PEB Proceedings.   



__John Slone___________
          CHAIRPERSON




INDEX

CASE ID
AR20070000874
SUFFIX

RECON

DATE BOARDED
20070718
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
124.0300
2.
124.0000
3.

4.

5.

6.