RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 February 2008
	DOCKET NUMBER:  AR20070005912 


	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. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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 his discharge for being medically unfit for retention be changed to a medical retirement.

2.  The applicant states that he was not allowed to attend the review board or to withdraw his request for early retirement after learning that he did not have enough years (of qualifying service for a Reserve retirement).  He was discharged without being afforded legal advice.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 28 May 2004 and 26 May 1994; a DA Form 2173 (Statement of Medical Examination and Duty Status); a SALUTE report; a DD Form 2807-1 (Report of Medical History), dated 10 February 2005; a DD Form 2808 (Report of Medical Examination), dated 10 February 2005; a DA Form 638 (Recommendation for Award), dated 1 January 2004; a DA Form 3349 (Physical Profile), dated 20 October 2005; a memorandum, dated 10 December 2005; and a letter, dated 25 February 2006.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant enlisted in the Army National Guard (ARNG) on 27 July 1998.  

2.  The applicant was ordered to active duty on 16 January 2003.  He arrived in Iraq on 11 April 2003.  On 13 November 2003, he was driving a truck that suffered an indirect hit from an improvised explosive device.  He provided a DA Form 2173 that shows he lost hearing in his left ear, his right ear became muffled, and he had ringing in both ears.  He also reported a slight headache and a dull pain inside his left ear.  His DD Form 214 shows he was awarded the Purple Heart, apparently for injuries received during this incident.  

3.  The applicant was awarded primary military occupational specialty (MOS) 88M (Motor Transport Operator) on 30 January 2004.

4.  The applicant departed Iraq on 13 April 2004.  He was released from active duty on 28 May 2004.

5.  In a 17 August 2005 memorandum, the District of Columbia ARNG (DCARNG) State Surgeon informed the applicant’s commander that the applicant was issued a permanent profile that indicated limitations in emotional stability and physical capacity and stamina.  It was determined he had a medical condition that did not meet medical retention standards.  It was recommended he be separated from the DCARNG.  He could appeal the findings and recommendation to the Physical Evaluation Board (PEB) for a physical fitness determination.  

6.  On 20 October 2005, the DCARNG gave the applicant a permanent physical profile of 311112 for medical conditions of sleep apnea/hypersomnolence (requires CPAP (Continuous Positive Airway Pressure)), obesity, and post-traumatic distress syndrome.

7.  In December 2005, the applicant transferred from the DCARNG to the Maryland ARNG (MDARNG).

8.  On 10 December 2005, the applicant completed an over-40 physical examination.  He provided a copy of the DD Form 2807-1 and annotated this document, “Final Medical Exam – Passed!”  This document noted that he suffered from numerous medical conditions including sleep apnea, hearing loss, and post-traumatic stress disorder (PTSD).  It noted that he was treated for his PTSD at Walter Reed Army Medical Center.  It also noted that he was receiving a 40 percent disability rating from the Department of Veterans Affairs (VA) for PTSD (30 percent), a back injury (10 percent), and sleep apnea (zero percent).

9.  The applicant provided a copy of a DD Form 2808, dated 10 December 2005. This document indicated that his physical profile was 211221; however, it is not signed by a reviewing officer/approving authority.

10.  On 22 January 2006, the MDARNG MOS Medical Review Board (MMRB) evaluated the applicant’s ability to perform the physical requirements of his primary MOS of 98G (sic).  Based upon a thorough review of his permanent profile and all other pertinent records and reports, the MMRB determined that the applicant would be medically retired from the MDARNG.

11.  The findings and recommendation of the MDARNG MMRB were apparently provided to the applicant on 24 January 2006.  He was evidently given              30 business days to appeal the MMRB’s decision.  It was apparently at this time that he was offered the options of “attaching new or previously unsubmitted medical documents and elect to have my case reevaluated by the State MMRB” or “requesting consideration for Early Reserve Retirement for Disabled Members based on the fact that I have 15 years or more of qualifying service.”  On           25 February 2006, the applicant elected consideration for early retirement.

12.  In a memorandum from the MDARNG MMRB Manager to the MDARNG Chief of Staff concerning a Congressional inquiry, the MMRB Manager stated that around March or early April 2006, the MDARNG contacted the applicant and informed him that he was short of the full 15 years of service he needed for early retirement.  The applicant was asked to provide documentation to verify his service.  The MDARNG never received any documents.  

13.  In an email dated 18 April 2006, Staff Sergeant P___, MDARNG, informed Master Sergeant W___, MDARNG, that after receiving everything from the DCARNG the applicant had only 13 years towards retirement.

14.  Orders dated 25 April 2006 discharged the applicant from the ARNG and as a Reserve of the Army due to being medically unfit for retention effective 30 April 2006.

15.  In a letter to the MDARNG dated 26 April 2006, the applicant requested a PEB.  He provided his 10 December 2005 physical examination and stated that he was being reclassified as a 96B (Intelligence Analyst).  He stated that he withdrew his premature agreement for early retirement on the grounds that he did not have an unsatisfactory PULHES for MOS 96B, he was fit for such service (in MOS 96B) to his country, and he had less than 15 years of service for a non-regular retirement.  His request was received on 26 April 2006; however, guidance was given to proceed with the discharge action.

16.  In the processing of this case, an advisory opinion was obtained from the National Guard Bureau.  The advisory opinion recommended disapproval of the applicant’s request.  It noted that the DD Form 2808 submitted by the applicant was “not signed by the applicant” (presumably meaning not signed by the reviewing officer/approval authority) and therefore was not a valid document.  It noted that no line of duty (LOD) claim had ever been submitted by the applicant.  It noted that Army Regulation 40-501 states that Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the U. S. Army Reserve Command, Regional Support Command, or the U. S. Army Human Resource Command, Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that caused the Soldier to not meet medical retention standards.

17.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He responded by providing additional documents (identified above).  He rebutted that he was discharged unfairly and without an opportunity to complete the time in service requirements for early retirement.  

18.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

19.  Army Regulation 635-40 states, in pertinent part, that when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of his or her grade or rank because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501.

20.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that Reserve Component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  The process was designed to give the Soldier with a nonduty related impairment the option of requesting a PEB solely for the purpose of fitness determination but not a determination of eligibility for disability benefits.

21.  Army Regulation 40-501, paragraph 3-33 states that anxiety, somatoform, or dissociative disorders, when (a) persistence or recurrence of symptoms are sufficient to require extended or recurrent hospitalization; or (b) persistence or recurrence of symptoms necessitate limitations of duty or duty in a protected environment; or (c) persistence or recurrence of symptoms result in interference with effective military performance; are causes for referral to a Medical Evaluation Board (MEB).

22.  The Diagnostic and Statistical Manual of Mental Disorders, 4th edition, classifies PTSD as an Anxiety Disorder.

23.  Army Regulation 40-501 states the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):     P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.    A physical profile of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect which may require some activity limitations.  A profile containing one or more numerical designations of "3" signifies that the individual has one or more medical conditions or physical defects which may require significant limitations.  The individual should receive assignment commensurate with his or her physical capability for military duty.

24.  Title 10, U. S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

25.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.  The individual must also meet the requirement of having performed the last 6 years of qualifying service in the Reserve Components as outlined in Title 10, U. S. Code, section 1331(a).  

DISCUSSION AND CONCLUSIONS:

1.  An error and/or an injustice occurred in this case.

2.  On 20 October 2005, the DCARNG gave the applicant a permanent physical profile of 311112 for medical conditions of sleep apnea/hypersomnolence (requires CPAP), obesity, and post-traumatic distress syndrome.  Based upon this profile, the MDARNG MMRB evaluated the applicant’s ability to perform the physical requirements of his primary MOS and, based upon a thorough review of his permanent profile and all other pertinent records and reports, the MMRB determined that the applicant would be medically retired from the MDARNG.


3.  It appears that, because the applicant was led to believe he qualified for a     15 year Reserve retirement, he elected not to appeal the MMRB’s decision but rather requested “consideration for Early Reserve Retirement for Disabled Members based on the fact that I have 15 years or more of qualifying service.”  

4.  In an email dated 18 April 2006, Staff Sergeant P___, MDARNG, informed Master Sergeant W___, MDARNG, that after receiving everything from the DCARNG the applicant had only 13 years towards retirement.  The applicant’s discharge orders were then issued on 25 April 2006, with an effective date of discharge of 30 April 2006.  

5.  On 26 April 2006, the applicant requested a PEB.  His request was received on 26 April 2006; however, guidance was given to proceed with the discharge action.

6.  As the advisory opinion noted, Reserve Component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  The regulation does not limit that eligibility to requests made prior to the date separation orders are issued.  

7.  Once the applicant requested a PEB, only a week after he was notified that he was not eligible for a 15-year Reserve retirement and almost a week before his discharge date, he should have been referred to a PEB for a fitness for duty determination.  The PEB could have determined the validity of the PULHES of 211221 noted on his 10 December 2005 DD Form 2808.  It was an injustice to deny him his regulatory right to a PEB.

8.  It also appears that an error was made in determining the proper channels for the applicant’s disability processing.

9.  The applicant’s permanent physical profile of 311112 was for medical conditions of sleep apnea/hypersomnolence (requires CPAP), obesity, and post-traumatic distress syndrome.  His DD Form 2807-1 noted that he was treated for his PTSD at Walter Reed Army Medical Center.  His service medical records are not available; however, it appears reasonable to presume that his PTSD was related to his active duty service in Iraq.  For that reason, he would have been eligible for referral to an MEB to determine if he was eligible for separation under the provisions of Title 10, U. S. Code, section 1203 or section 1201.

10.  It is recognized that the applicant’s current request for a medical retirement (and he presumably meant a 15-year Reserve retirement) contradicts his assertion in his 26 April 2006 letter to the MDARNG, wherein he stated he was fit for service to his country in MOS 96B.  However, he should be afforded the opportunity to have his medical fitness, at least concerning his PTSD, determined by an MEB/PEB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__wdp___  __rml___  __qas____  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 offering him the opportunity to undergo a physical evaluation to determine his fitness for retention in the Army:

     a.  by directing the Office of The Surgeon General to contact him and arrange, via appropriate medical facilities, a physical evaluation; and

     b.  if appropriate, by referral to an MEB and an informal PEB.

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the physical evaluation and, if necessary, the MEB and PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  Subsequent to a final determination by the Office of The Surgeon General concerning his fitness for retention in the Army (as relates to a condition or conditions incurred while on active duty), the individual concerned may reapply to this Board concerning referral to a nonduty related PEB or any other issues, as appropriate.

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 showing the individual concerned was medically retired. 




__William D. Powers___
          CHAIRPERSON




INDEX

CASE ID
AR20070005912
SUFFIX

RECON

DATE BOARDED
20080207
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
108.00
2.

3.

4.

5.

6.