RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070010216 


	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. John T. Meixell

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Scott W. Faught

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 that his medical unfitness status be revoked and he, in effect, be reinstated on active duty.

2.  The applicant states that he feels he was not properly briefed concerning applying for continuation on active duty (COAD).  He believes he can still be a valuable member of the Army as an instructor in his former military occupational specialty (MOS) of 21B (Combat Engineer).  Since his separation, he has worked in a civilian job that has vastly improved the range of motion, control, and overall use of his left hand.  The improvement of his hand has enabled him to fire a weapon again and improved fine motor skills that are required to completed skill level 3 tasks required of a 21B.  He realizes that he may be unable to be assigned to a deployable unit, but he feels that his leadership and skills learned after eight and a half years of service and as a veteran of Operation Iraqi Freedom would increase the knowledge passed to new Soldiers entering the 21B MOS.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); a DA Form 199 (Physical Evaluation Board (PEB) Proceedings); an Operative Report; a DA Form 3349 (Physical Profile); a Record of Inpatient Treatment; a memorandum for record (MFR) from the Cedar Bluff, AL, Police Department; and an undated letter of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 June 1996.  He completed basic training and advanced individual training and was awarded MOS 21B.  He completed basic airborne training.  

2.  The applicant arrived in Iraq on 5 September 2003.  

3.  On 5 February 2004, the applicant was injured by the explosion of an improvised explosive device.  All of the fingers on his left hand were amputated (either partially or completely) and he suffered large shrapnel wounds to his right leg.

4.  The applicant was promoted to Staff Sergeant, E-6 on 1 March 2004.

5.  On 22 November 2004, a Medical Evaluation Board (MEB) referred the applicant to a PEB for diagnoses of left hand, non-dominant side, partial or complete amputation of all digits; and germ cell cancer/testicular cancer, in remission, medically acceptable.  In item 15 of the DA Form 3947 (Medical Evaluation Board Proceedings), the applicant indicated that he did not desire to continue on active duty.  On 10 December 2004, he agreed with the MEB’s findings and recommendation.

6.  On 21 December 2004, an informal PEB found the applicant to be physically unfit for retention due to left hand, non-dominant side, partial or complete amputation of all digits.  Diagnosis 2 was determined to be medically acceptable. The PEB recommended the applicant be permanently retired with a 60 percent disability rating.  On 4 January 2005, the applicant concurred with the recommendation and waived a formal hearing.

7.  On 4 January 2005, the applicant signed a DA Form 5893-R (PEBLO Counseling Checklist/Statement) acknowledging that he had been counseled on identified checked items as they pertained to his disability evaluation.  Section III of this form indicated the applicant had been informed of the criteria and procedures for requesting COAD during the MEB process.

8.  On 10 April 2005, the applicant was released from active duty by reason of permanent disability and was placed on the retired list 11 April 2005.  He was given a reentry (RE) code of 4.  

9.  The applicant provided an MFR from the Cedar Bluff, AL Police Department.  The MFR indicated that the applicant helped train the reserve and active officers in the Department, and he fired several weapons (pistol, shotgun, and rifle) with accuracy and precision.  The applicant provided a letter of support from his first line supervisor, who stated the applicant’s work consisted of maintenance with the company and that he performed all tasks as well as any man with both hands.

10.  In the processing of the case, two advisory opinions were obtained.

11.  The Chief, Recruiting Policy Branch, Office of the Deputy Chief of Staff, G-1 noted that Army policy prohibits reentry of persons permanently retired by reason of physical disability but recommended that the applicant be reevaluated to further determine eligibility for reentry according to COAD standards.  He recommended that this case be reviewed by the proponent of Army Regulation 635-40 to further evaluate the applicant’s potential to continue to serve, to determine if he understood his rights regarding COAD, as well as whether he should be reinstated onto active duty.  If the medical board overturned their previous ruling, thus indicating the applicant is capable of performing in one of the Army’s occupational specialties, the applicant would be eligible to process for reentry.

12.  The Deputy Commander, U. S. Army Physical Disability Agency (USAPDA) noted that the applicant had indicated in item 15 of the DA Form 3947 that he did not want to continue on active duty and that he signed the DA Form 5893-R.  The Deputy Commander concluded that there were no errors or lack of administrative due process regarding any counseling of his rights.  However, he also noted that the Agency had no objections to the Army authorizing the applicant’s reentry into the active military service as an exception to policy or based upon a general finding of injustice.

13.  The two advisory opinions were provided to the applicant.  He indicated his agreement with the two recommendations.

14.  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.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  

15.  Army Regulation 635-40 states that to be considered for continuance on active duty, a Soldier must be (a) found unfit by a PEB because of a disability that was in the line of duty; (b) capable of maintaining one's self in a normal military environment without adversely affecting one's health and the health of others and without undue loss of time from duty for medical treatment; (c) physically capable of performing useful duty in an MOS for which he or she is currently qualified or potentially trainable; and (d) eligible due to (1) having        15 years but less than 20 years of total service; or (2) qualified in a critical skill or shortage MOS; or (3) disability is the result of combat.

16.  Pertinent Army regulations provide that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

17.  RE code 4 applies to persons not qualified for continued Army service, and the disqualification is not waivable.  

18.  Soldiers retired by reason of physical disability fall into this category.

19.  RE code 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.
20.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210. 

21.  Army Regulation 40-501 (Standards of Medical Fitness) states medical fitness standards cannot be waived by medical examiners or by the examinee.  Examinees initially reported as medically unacceptable by reason of medical unfitness when the medical fitness standards in chapter 2, 3, 4, or 5 apply may request a waiver of the medical fitness standards in accordance with the basic administrative directive governing the personnel action.  Upon such request, the designated administrative authority may grant such a waiver in accordance with current directives.  The Office of The Surgeon General provides guidance when necessary to the review and waiver authorities on the interpretation of the medical standards and appropriateness of medical waivers.  The Secretary of the Army is the waiver authority for accession.

22.  Army Regulation 40-501, chapter 2 (Physical Standards for Enlistment, Appointment, and Induction), paragraph 2-9b states absence of the distal phalanx of either thumb; absence of the distal and middle phalanx of an index, middle, or ring finger of either hand, irrespective of the absence or loss of little finger; and absence of more than the distal phalanx of any two of the following fingers:  index, middle finger, or ring finger of either hand; are causes for rejection for enlistment or appointment.

23.  Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), paragraph 3-12a states amputation of part or parts of an upper extremity equal to or greater than (1) a thumb proximal to the interphalangeal joint; (2) two fingers of one hand, other than the little finger, at the proximal interphalangeal joints; and (3) one finger, other than the little finger, at the metacarpophalangeal joint and the thumb of the same hand at the interphalangeal joint are reasons for referral to an MEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant suffered an injury while in Iraq that resulted in the partial or complete amputation of all digits of his left, non-dominant, hand.  As a result of this injury, he went through the physical disability processing system and was permanently retired by reason of physical disability.  He was properly given      RE code 4 based upon the reason for his separation.

2.  The available evidence of record indicates the applicant was counseled concerning COAD.  He indicated on the DA Form 3947 that he did not want to continue on active duty.  He provides no evidence to show he was improperly briefed.

3.  Nevertheless, USAHRC indicated that if the medical board overturned their previous ruling the applicant would be eligible to process for reentry.  USAPDA indicated they had no objections to the Army authorizing the applicant’s reentry into the active military service as an exception to policy or based upon a general finding of injustice.

4.  There is no evidence of an injustice; however, allowing the applicant to process for enlistment as an exception to policy appears to be an equitable resolution of the issue.

5.  The Secretary of the Army is the medical waiver authority for accession.  To prevent any undue problem with recruiting officials, it would be appropriate to change the applicant’s RE code to 3 (not qualified for continued Army service, but the disqualification is waivable) as an exception to policy.  Provided the applicant meets all other enlistment criteria, to include any other medical criteria, it would then be equitable to show that the Secretary of the Army granted him a medical waiver for any disqualifications arising out of Army Regulation 40-501, paragraph 2-9b.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__jtm___  __jrm___  __swf___  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.  amending his DD Form 214 to change, as an exception policy, his reentry code to 3; and

     b.  providing the applicant meets all other enlistment criteria, to include any other medical criteria, showing that the Secretary of the Army granted him a medical waiver for any disqualifications arising out of Army Regulation 40-501, paragraph 2-9b.

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 directly reinstating him in the Army 




___John T. Meixell____
          CHAIRPERSON




INDEX

CASE ID
AR20070010216
SUFFIX

RECON

DATE BOARDED
20071129
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.03
2.
108.00
3.

4.

5.

6.