RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 September 2007
	DOCKET NUMBER:  AR20070002693 


	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

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Frank C. Jones, II

Member

Ms. Carmen Duncan

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 appearance before a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB), and the issue of a DD Form 214 (Certificate of Separation or Discharge from the Active Army) and service credit for the period 15 December 2003 through 15 August 2005.

2.  The applicant states, in effect, that he was unjustly discharged without being afforded the benefit of those boards although he was told by an unnamed noncommissioned officer (NCO) during mobilization Station Readiness Processing (SRP) that he could not deploy with his unit due to medical issues and to remain at the home station until medical issues were resolved.  He further states that he could neither deploy because of medical issues nor reenlist because he was in a "Mobilization" Code.  He concludes that he was later discharged without a DD Form 214. 

3.  The applicant provides a copy of military correspondence requesting assistance from office of the Inspector General (IG), a copy of DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers (also known as 15-6 investigation)), DA Form 2173 (Statement of Medical Examination and Duty Status), and copies of his medical records, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army on 3 January 1979 and was honorably discharged on 16 November 1981.  He later had a series of enlistments in the Alabama Army National Guard (ALARNG) and was issued a National Guard Bureau (NGB) Form 22 for each of the following periods:

	3 July 1985 through 2 July 1989, Honorable Discharge.

	30 October 1990 through 30 November 1991, Honorable Discharge.

	22 December 1995 through 1 May 1996, Honorable Discharge.

	31 December 1996 through 14 July 1997, Honorable Discharge.

	28 August 1998 through 22 January 1999, Honorable Discharge.



2.  On 23 January 1999, the applicant reenlisted in the U.S. Army Reserve for a period of 6 years.  Based on this reenlistment, the applicant's expiration term of service (ETS) date was 22 January 2005.  He was assigned to 498th Transportation Company (TC) with a home base of Mobile, Alabama.  The 498th TC is a subordinate company of the 375th Transportation Group.  The 81st Reserve Readiness Command (RRC), Birmingham, Alabama, is the higher headquarters of the 498th TC. 

3.  A first set of mobilization Orders were issued on 9 November 2003.  Department of the Army, 375th Transportation Group, Mobile, Alabama, Permanent Orders Number 03-313-00305, dated 9 November 2003, shows that the applicant was ordered to active duty as a member of his Reserve Component for mobilization in support of Operation Iraqi Freedom (OIF).  The applicant was ordered to report to the 375th Transportation Group, Mobile, Alabama, on 7 December 2003, and to Fort Stewart, Georgia, on 10 December 2003.

4.  Permanent Orders 03-313-00305, dated 9 November 2003, contained the following additional instructions: "If upon reporting for duty you fail to meet deployment medical standards (whether because of a temporary or permanent medical conditions), then you may be released from active duty, returned to your prior reserve status, and returned to your home address, subject to subsequent order to active duty upon resolution of the disqualifying medical condition.  If upon reporting to active duty, you are found to satisfy medical deployment standards, then you will continue on active duty for a period not to exceed the period specified in this order, such period to include the period (not to exceed 25 days) required for mobilization processing."

5.  A second set of mobilization Orders were issued on 26 November 2003.  Department of the Army, 375th Transportation Group, Mobile, Alabama, Permanent Orders Number 03-330-00066, dated 26 November 2003, shows that the applicant was ordered to active duty as a member of his Reserve Component for mobilization in support of Operation Iraqi Freedom (OIF).  The applicant was ordered to report to the 498th Transportation Company in Mobile, Alabama, on 15 December 2003, and to Fort Stewart, Georgia, on 18 December 2003.

6.  Permanent Orders 03-330-00066, dated 26 November 2003, also contained additional instructions that stated: "If upon reporting for duty you fail to meet deployment medical standards (whether because of a temporary or permanent medical conditions), then you may be released from active duty, returned to your prior reserve status, and returned to your home address, subject to subsequent order to active duty upon resolution of the disqualifying medical condition.  If upon reporting to active duty, you are found to satisfy medical deployment standards, then you will continue on active duty for a period not to exceed the period specified in this order, such period to include the period (not to exceed 25 days) required for mobilization processing."

7.  On 5 December 2003, the applicant started his SRP at the home station.  Section VIII (Medical) of the DA Form 7425 (Readiness and Deployment Checklist) indicated the applicant needed an over 40 physical.  Section IX (Dental) indicated that the applicant was Class "3", in need of dental treatment.  Records show that the DA Form 7425 was not validated at the home base or at the mobilization site.

8.  On 8 December 2003, the applicant indicated on the front page of the DA Form 7349 (Initial Medical Review-Annual Medical Certificate) that he had medical or dental problems since his last periodic physical examination.  The back page of the form was neither completed nor signed by the initial reviewer or the approving authority.  However, a physician indicated the applicant needed an over 40 physical and a dental exam.

9.  On 11 December 2003, the applicant was examined by the dentist and was found in need of dental treatment.  The dentist indicated the word "Undeployer" on the applicant's dental record and assigned him dental classification "4".  The chain of command, however, states that the dentist could not treat the applicant due to the applicant's high blood pressure.  The applicant claims that he returned to his unit and was told by an unnamed NCO that he was on medical hold.  

10.  There is no evidence in the applicant's available medical or dental records showing that the dentist was unable to treat the applicant as a result of having high blood pressure.

11.  There is no evidence in the available records that an unnamed NCO or any member of the applicant's chain of command placed him on medical hold or told him he was on medical hold.

12.  Department of the Army, 375th Transportation Group, Mobile, Alabama, Permanent Orders Number 03-345-00006, dated 11 December 2003, revoked Permanent Orders Number 03-313-305, dated 9 November 2003, (the first set of mobilizations Orders), pertaining to the applicant's mobilization. 

13.  Records show the applicant claims he hurt his back at the 498th TC motor pool while loading vehicles in preparation for deployment.  There is no evidence that the applicant informed the SRP personnel or his unit.  There is no evidence that the 81st RRC issued a medical hold order on the applicant.
14.  The applicant stayed at the home station while his unit (498th TC) was deployed.  The 375th Transportation Group was also deployed during the same time frame.  Records show that the applicant did not regularly report for duty at the 498th TC Rear Detachment.  Additionally, records further show that the applicant continued receiving full active duty pay and allowances even after his mobilization Orders were revoked and even though he did not deploy with his unit.

15.  Records show that on 12 January 2004, the applicant was examined at the Coast Guard Clinic, Mobile, Alabama, due to back pain.  He was examined again at the same clinic on 18 May 2004.  Records further show the applicant missed medical appointments on 28 September 2004, 27 October 2004, 24 February 2005, and 23 and 24 June 2005 at the Coast Guard Clinic. 

16.  Department of the Army, 375th Transportation Group, Mobile, Alabama, Permanent Orders Number 04-023-0007, dated 23 January 2004, revoked Permanent Orders Number 03-330-00066, dated 26 November 2003 (the second set of mobilization orders). 

17.  The applicant's records show that he was still a member of the 375th Transportation Company when Permanent Orders 04-023-007, dated 23 January 2004, revoked his mobilization order, signifying that the applicant was no longer mobilized or on active duty, presumably because he failed to meet deployment medical standards.

18.  The applicant's records do not show he performed any duties while his unit was deployed, although he continued to receive full active duty pay and allowances. 

19.  On 5 April 2005, the applicant sought medical help at a civilian emergency room due to chest pain.  The attending physician at the University of South Alabama Hospitals stated in his report that the applicant had intervertebral disease with central and left paracentral discal osteogenic material protruding centrally and impressing upon the nerve roots on the left at L5-S1 and L4-L5.

20.  On 14 April 2005 and 19 April 2005, Humana Military Healthcare Services approved and issued a referral for the applicant to be examined for back pain and symptoms of c spine radiculpaty. 



21.  On 25 April 2005, the attending physician at the University of South Alabama Hospitals issued an examination report indicating the applicant had diffused degenerative disc changes throughout the cervical spine, most prominent at 
C3-4, C4-5, and C5-6 levels.  He also indicated that there was mild bilateral neutral foramen narrowing at the C4-5 levels and that there was no evidence of disc herniation or canal stenosis.

22.  On 6 June 2005, the attending physician at the University of South Alabama Hospitals issued an examination report indicating the applicant failed conservative treatment.  The physician recommended lumbar laminectomy at the L4-5 levels. 

23.  On 7 July 2006, the attending physician at the Coast Guard Clinic issued the applicant a Standard Form (SF) 600 (Chronologic Records of medical Care) permanently limiting the applicant's activities to perform push-ups, sit-ups, run, 2.5 mile walk, bike, and swim.

24.  On 12 July 2006, the Administrative Officer of the 375th Transportation Group, Mobile, Alabama, forwarded a memorandum to the IG requesting resolution of the duty status and medical determination of the applicant.

25.  There is no indication in the applicant's records that the IG responded to the Administrative Officer's inquiry.

26.  Department of the Army, Headquarters, 81st Regional Readiness Command, Birmingham, Alabama, Permanent Orders Number 06-243-00059, dated 31 August 2006, honorably discharged the applicant from the USAR, under the authority of Army Regulation 136-178 (Enlisted Administrative Separations) effective 27 April 2006.  The additional instructions on the order stated that the applicant was held beyond normal discharge due to no fault of his.  There is no record that the applicant was issued a DD Form 214 for the period 15 December 2003 (the date he was mobilized) through 27 April 2006 (the date he was honorably discharged). 

27.  On 8 November 2006, unit commander completed and submitted the DA Form 2173, also known as the line of duty investigation, stating that the applicant's injury was incurred in the line of duty and that the applicant injured his back getting out of a car.  The commander further writes that the applicant developed pain in the middle of the lower back and also while sitting/standing.  The applicant also had numbness from hip to knee 2 times a day and frequent shooting and burning pains.

28.  In an advisory opinion, the Director of Health Policy and Services, Office of the Surgeon General, Falls Church, Virginia, dated 25 June 2007, recommended the applicant to be brought back on Active Duty (AD) for the purpose of Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).

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 MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

30.  Chapter 3 of Army Regulation 635-40 contains the policy and outlines the standards for determining unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.  

31.  Chapter 8 of Army Regulation 635-40 contains the rules and policies for disability processing of Reserve Component (RC) Soldiers.  It states, in pertinent part, that a RC Soldier will be referred for medical processing through the PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  It also specifies that this fitness determination is different from a LOD determination, which establishes only whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a casual relationship between the disability and the required military duty




32.  Army Regulation 600-60 implements and establishes operating procedures for the Physical Performance Evaluation System (PPES), and states in pertinent part that the PPES is a program designed to evaluate Soldiers who have been issued a permanent physical profile with a numerical designator of 3 or 4 under any physical profile serial code.  The PPES establishes the MMRB as an administrative screening board to determine if Soldiers have the physical ability   to satisfactorily perform in their specialty or branch worldwide and in a field environment.  Soldiers with temporary profiles and Soldiers with a permanent profile serial of 1 or 2 will not be referred to the MMRB.

33.  Army Regulation 40-3, chapter 7, provides for medical evaluation boards (MEBs), and are convened to document a service member’s medical status and duty limitations insofar as duty is affected by the member’s medical status.  Situations that require consideration by a MEB include those involving Reserve component personnel on active duty for training (ADT) or inactive duty for training (IDT), whose fitness for further military service upon completion of hospitalization is questionable, and those who require hospitalization beyond the termination of their tour of duty.  Consideration by a MEB also includes those involving a Reserve component member who requires evaluation because of a condition that may render him unfit for further duty.

34.  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.
 
35.  Chapter 2 of Army Regulation 635-5 (Separation Documents) states that the DD Form 214 will be prepared for Reserve Component (RC) Soldiers completing 90 days or more of continuous active duty for training (ADT) and for Army National Guard (ARNG) and RC Soldiers mobilized under sections 12301(a), 12302, or 12304, title 10, U.S. Code and ARNG Soldiers called into Federal Service under chapter 15, or section 12406, title 10, U.S. Code, regardless of length of mobilization, when transitioned from active duty.  A Soldier who reports to a mobilization station and is found unqualified for service will be excluded from this provision.  He or she will only receive a DD Form 220 (Active Duty Report). 

36.  Army Regulation 635-5, in effect at the time, governed the preparation of the DD Form 214.  This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The date the Soldier entered active duty status will be entered in Item 12a.  The last date of active duty will be entered in Item 12b.
37.  Section I of Army Regulation 635-5 states, in pertinent part, that the DD Form 214 will be prepared for Reserve Component (RC) Soldiers completing 90 days or more of continuous duty for training (ADT), Full-Time National Guard Duty (FTNGD), active duty for special work (ADSW), temporary tour of active duty (TTAD), or Active Guard Reserve (AGR) service.  The DD Form 214 will also be issued to RC Soldiers separated for cause or physical disability, mobilized, or when completing initial ADT that results in the award of a military occupation specialty (MOS) even when the period is less than 90 days. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to be brought back on active duty for the purpose of a medical evaluation board or physical evaluation board, that he is entitled to be issued a DD Form 214 for the period he was mobilized, and that his service for the mobilization duration be recognized as service credit.

2.  Evidence of record shows that the applicant's mobilization orders dated 26 November 2003 ordering him to report on 15 December 2003 were revoked on 23 January 2004, thus ending his mobilization status, presumably because the applicant failed to meet deployment medical standards as stated in the additional instructions of his mobilization orders.  He was, therefore, no longer on active duty.  Additionally, the applicant did not resolve the disqualifying medical condition and therefore was never issued a subsequent order to active duty. 

3.  The applicant's statement that he did not know his orders were revoked and thought he was on medical hold is not persuasive.  Evidence of record shows that he assumed he was on a medical hold order due to his disqualifying medical condition despite the absence of such order.  Additionally, there is no evidence and the applicant failed to provide sufficient evidence that he was told by any member of his chain of command that he was on medical hold.

4.  The evidence of record shows that the applicant received full active duty pay, to include basic pay and allowances as well as family separation allowance.  However, the applicant was not only neither deployed nor separated from his family, there is no record that he performed any significant duties during the period in question.  

5.  In view of the foregoing, there is no evidence that the applicant is entitled to be issued a DD Form 214 for the period 15 December 2003 through 15 August 2005.  However, to capture the period from 15 December 2003 through 23 January 2004 and in accordance with regulatory guidance, he is entitled to be issued a DD Form 220 to cover this period.

6.  Evidence of record shows that the applicant did not deploy and did not correct the disqualifying reason for his non-deployment.  Additionally, the applicant claimed that he hurt his back during unit load-out and sought medical treatment sporadically.  The commander who conducted the line of duty investigation as well as the attending physician wrote that the applicant hurt his back getting out of a car.  

7.  Evidence of record shows that the applicant's chain of command conducted a line of duty investigation that found the applicant's injury was in the line of duty.  Additionally, the Director of Health Policy and Services, Office of the Surgeon General, Falls Church, Virginia, recommended the applicant be brought back on Active Duty (AD) for the purpose of Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  Therefore, there is sufficient evidence to show that the applicant should have the opportunity to recreate an MEB and possibly a PEB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__lds___  __fcj___  __cd____  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 by:

	a.  Issuing the applicant a DD Form 220 for the period 15 December 2003 through 23 January 2004.

	b.  Offering the applicant the opportunity to undergo a physical evaluation to determine his fitness for retention in the Army reserve.

2.  The U.S. Army Human Resources Command, St. Louis, Missouri, should contact the applicant and arrange, via appropriate medical facilities, a physical evaluation and, if appropriate referral, to an MEB.

3.  The U.S. Army Human Resources Command, St. Louis, Missouri, is directed to use appropriate invitational travel orders (ITO) to accomplish the physical evaluation and, if appropriate, the MEB.

4.  In the event that a PEB becomes necessary, the applicant will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  

5.  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:

	a.  Issuing the applicant a DD Form 214 for the period 15 December 2003 through 15 August 2005.

	b.  Awarding him service credit for the period 15 December 2003 through 15 August 2005.




							Linda D. Simmons
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070002693
SUFFIX

RECON

DATE BOARDED
20070906
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
110.0400
2.
145.0000
3.

4.

5.

6.