IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20070018571 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his improper release date from active duty in October 2003 (sic 8 November 2003) be changed to reflect the date of his medical board.  He also requests that he be awarded pay and benefits, such as severance pay, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show the appropriate years of service, and that he be awarded all awards and decorations that he is entitled to.

2.  The applicant states, in effect, that he was assigned to the 270th Military Police (MP) Company of the California Army National Guard (CAARNG).  On 15 March 2003, he was ordered to active duty in support of Operation Iraqi Freedom (OIF).  He injured his back in Kuwait, while preparing for a combat mission in Iraq.  Although he was injured, he worked 67 days straight due to short staffing until he could no longer perform his duties.  He was medically evacuated from Baghdad, Iraq, and sent to Fort Lewis, Washington, to receive medical treatment.  He was inappropriately released from active duty in October 2003.  He was told that his back would make a full recovery with physical therapy within 6 months.  It however, has progressively been getting worse.  

3.  He states that he was told by a physician at Madigan Army Medical Center (MAMC) at Fort Lewis that there was nothing left the Army could do for him, because it was not bad enough for him to be operated on.  He was sent back to his home station in Sacramento, California, where he immediately requested a transfer to the 170th MP Detachment.  In April 2004, he reenlisted for 3 years.  While he was preparing for CID (Criminal Investigation Division) school in January 2005, he was informed by letter that he was going to be medically boarded out of the Army for his back injury.  He was told by the CAARNG that he was not allowed to attend any of his weekend drills and that he was not eligible for active duty because he was not considered to be a medical holdover.  He was informed during his formal medical board hearing that he should have been on active duty Title 10 Orders since October 2003 as a medical holdover.  He was advised at that time to contact this Board upon receipt of his discharge documents so that he could be compensated for this error.  

4.  The applicant provides a copy of his medical evaluation board (MEB), a copy of his physical evaluation board (PEB), formal and informal, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service), and copies of additional supporting documents in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the California Army National Guard on 8 April 1998, for 6 years, with an established expiration term of service (ETS) of 7 April 2004.  On 1 April 2004, the applicant extended his service by 3 years.  His new ETS was 7 April 2007.  He was trained as a Military Policeman, in military occupational specialty (MOS), 95B.  He was promoted to sergeant (SGT/E-5) effective 3 October 2001.

2.  The applicant was ordered to active duty, under Title 10, Unites States Code (USC) 12302, on 15 March 2003 in support of OIF and Operation Enduring Freedom (OEF).  

3.  In June 2003, while serving in Iraq, the applicant injured his lower back.  He alleged to have worked for 96 straight days with progressively developing back pain and lower extremity symptoms before being evacuated out of the country.  He was found to have a herniated disk and did not return to deployment. 

4.  The applicant was issued a temporary profile of 111113, on 28 August 2003, due to low back pain, with an expiration date of 1 November 2003.  His profile assignment limitations were no ruck sack and no jumping; stooping and bending to tolerance, with no APFT (Army Physical Fitness Test).

5.  On 11 September 2003, Orders Number 254-008 were published by Headquarters, I Corps and Fort Lewis, attaching the applicant to the holding detachment, effective 26 August 2003, for the purpose of on-going medical treatment for demobilization.  The period of his attachment was until he completed medical treatment.
6.  The applicant was released from active duty, not by reason of physical disability, on 8 November 2003.  He was transferred to a troop program unit (TPU).  

7.  Item 12b (Separation Date This Period), of his DD Form 214, dated 8 November 2003, shows the entry "2003 11 08" (8 November 2003) and item 12c (Net Active Service This Period), shows the entry "0000 07 24" (7 months and 24 days). 

8.  Item 18 (Remarks), of the applicant's DD Form 214, shows that the applicant was ordered to active duty in support of OEF and OIF from 15 March 2003 to 8 November 2003 and served in an imminent danger pay area. 

9. Item 23 (Type of Separation), of the applicant’s DD Form 214, dated 8 November
2003, shows the entry, "Release From Active Duty," item 25 (Separation Authority), shows the entry "AR 635-200, CHAP 4," item 26 (Separation Code), of the applicant's DD Form 214, shows the entry "LBK," item 27 (Reentry Code) shows the entry "NA," and item 28 (Narrative Reason for Separation) shows the entry, "Completion of Required Active Service." 

10.  The applicant extended his enlistment on 1 April 2004 for 3 years with a newly established ETS of 7 April 2007.

11.  On 1 April 2004, the applicant was released from the 270th MP Company and was transferred to the CID Special Agent/170th MP Detachment. 

12.  On 28 December 2004, the Army Division, G1, Headquarters, CAARNG, prepared a memorandum, Subject:  Medical Determination/Physical Profile, with a suspense date of 15 February 2005.  The G1 stated that the State Surgeon had determined that additional civilian medical documentation was required before a medical determination or physical profile could be completed.  The G1 elaborated on the documentation that must be completed by the applicant’s primary care physician.  The GI indicated that the applicant would not perform any active duty service, ADSW (Active Duty Special Work), annual training, etc., and would not be allowed to travel from the date of the memorandum until he was medically cleared by the State Surgeon.  

13.  On 11 January 2005, the CAARNG, G1, requested that a fitness for duty evaluation be conducted on the applicant.

14.  The applicant was issued a permanent profile of 113111, on 2 March 2005, due to low back pain, (discogenic disc).  

15.  The applicant was discharged from the CAARNG on 1 August 2005, under honorable conditions, under the provisions of National Guard Regulation 600-200, chapter 8, paragraph 8-27f, for being an unsatisfactory participant.  He was transferred to the US Army Reserve (USAR) Control Group (Annual Training).

16.  On 29 March 2006, the Commander, CAARNG, 170th MP Detachment, prepared a memorandum, Subject:  Performance of the applicant.   The commander stated that the applicant joined the unit on 1 April 2004, after deploying to Iraq.  He incurred a noncombat related injury while on deployment. He was released from active duty on 8 November 2003 and was being treated for this condition.  He has two bulging disc’s in his lower back which was causing him to have numbness in his legs and feet.  Due to this condition, he was unable to take the Army Physical Fitness Test (APFT).  He was on a temporary profile which ended 1 November 2003.  When his temporary profile had expired, he was issued a permanent profile.  The commander stated that the applicant had served with honor and had been an integral part of the unit and had brought years of civilian police experience with him.  He stated, the applicant would no longer be able to perform his duties.  

17.  The applicant was honorably discharged from the USAR Control Group (AT [Annual Training]) effective 11 April 2006.

18.  On 20 October 2006, orders were published by the State Adjutant attaching the applicant to MAMC, Fort Lewis, for the purpose of an MEB, for 3 days, from 12 through 14 November 2006.

19.  On 14 November 2006, a narrative summary (NARSUM) was prepared based upon a physician directed referral.  The applicant was diagnosed as having chronic back pain, with L-5 disk herniation; migraine headaches; bilateral tinnitus; and subjective mild shortness of breath, status post spontaneous pneumothorax.  He was determined to meet Army retention standards for all diagnosed conditions with the exception of the chronic low back pain.  He recommended that the applicant appear before the PEB for further adjudication.

20.  On 12 December 2006, the applicant's case was considered by a MEB, at MAMC, Fort Lewis.  The MEB diagnosed the applicant as having chronic low back pain, with L-5 disk herniation which was medically unacceptable in accordance with Army Regulation 40-501.  He was also diagnosed as having migraine headaches; bilateral tinnitus; and subjective mild shortness of breath, status post spontaneous pneumorhorax, which met retention standards.  His ailments were ruled to have been incurred in line of duty (LOD) while he was entitled to base pay, except the migraine headaches.  His migraine headaches were the only ailment ruled to have existed prior to service (EPTS).  His chronic low back pain, with L-5 disk herniation, and migraine headaches were not deemed to have been permanently aggravated by service.  The MEB recommended that the applicant be referred to a PEB.  The applicant indicated that he did not desire to continue on active duty.  The findings and recommendations were approved on 13 December 2006.  The applicant agreed with the board's findings and recommendations on 28 December 2006.

21.  On 10 January 2007, the applicant appeared before an informal PEB.  He was diagnosed with chronic low back pain with onset in May 2003 while he was deployed to OIF.  Symptoms and profile prevented the duty performance of a military policeman.  Some of the conditions were determined to meet retention standards by the MTF (medical treatment facility).  The PEB found the applicant's condition to be not unfitting and therefore not ratable.  The PEB indicated that the PDES (Physical Disability Evaluation System) could only rate an illness or injury that was service incurred or permanently aggravated by military service and, by itself, would cause the Soldier to be separated or retired.  The applicant's PEB included a voting member from the Reserve Component.  The PEB found the applicant physically unfit and recommended a rating of 10 percent, with severance pay.  The PEB indicated that his separation was not based on a disability resulting from an injury received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LOD during a period of war as defined by law.  The PEB also indicated that the applicant's disability did not result from a combat related injury.  The applicant did not concur with the results of the PEB and demanded a formal hearing of his case on 11 January 2007.  

22.  On 22 January 2007, the applicant submitted his appeal.  He requested that counsel represent him at his formal PEB and disputed the disability percentage that he was assigned.  He elaborated on a few of the items that he was disputing, but inclusive of all items in dispute.

23.  On 26 January 2007, the President, PEB, prepared a memorandum for the applicant, Subject:  Appeal of PEB Informal Proceedings.  In his memorandum, the President, PEB, informed the applicant that the PEB received his election, dated 22 January 2007, in which he did not concur with the findings and recommendations of his informal hearing.  The President noted the personal statement but no new medical documentation.  The President stated that his appeal was carefully considered and his case reviewed.  The PEB adhered to the original findings and recommendations of the informal hearing.  The PEB believed that his case had been properly evaluated in accordance with Army Regulation 635-40 and current US Army Physical Disability Agency (USAPDA) policies.  

24.  The President stated that the PEB considered all relevant evidence in his case, to include the arguments presented in his appeal.  The President states that the PEB could only give him one rating for his back so it chose the highest one.  He was not rated for loss of range of motion as his limitations were not mechanical, but due to pain, and this would have given him a 0 percent rating.  The President states that he was not rated for spasm or guarding as they were not noted in his NARSUM.  If they had been noted, his rating would still have been 10 percent.  He was not rated for unfavorable ankylosis as he did not have it; his spine was not frozen allowing no movement at all.  Accordingly, he was given a 10 percent rating for localized tenderness which was noted by physical medicine on 24 November 2006.  

25.  On 1 March 2007, the applicant appeared before a formal PEB with counsel. The PEB found the applicant physically unfit and recommended a combined rating of 10 percent, with severance pay, if otherwise qualified.  The PEB adjourned on the same day.  The applicant concurred with the PEB recommendations on 11 March 2007.

26.  The applicant was honorably discharged from the CAARNG on 21 April 2007, under the provisions of National Guard Regulation (NGR) 600-200, chapter 8, paragraph 8-26j(1), for being medically unfit for retention. 

27.  There is no evidence of derogatory information contained in the available records.  There is no evidence the applicant was subjected to non-judicial punishment or courts-martial and that his commanders took action to deny him award of the Army Good Conduct Medal.

28.  In an advisory opinion, dated 19 March 2008, the Chief, Personnel Division, Departments of the Army and the Air Force, NGB, reiterated the applicant's request and statement.  The opinion recommended approval of the applicant’s request.  The opinion also elaborated on the regulations that supported its decision. 

29.  The opinion was forwarded to the applicant for his acknowledgement on 25 March 2008 and he concurred with the opinion on 28 March 2008.
30.  On 22 April 2008, his separation orders were amended to show that he was discharged in accordance with Army Regulation 635-40, paragraph 4-24b(3) and was entitled to separation pay in accordance with Title 10, USC 1174.

30.  Army Regulation 40-501 states the physicians who identify Soldiers with
medical conditions should initiated an MEB at the time of identification.  Physicians should not defer initiating the MEB until Soldier is being processed for non-disability retirement. 
31.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers), Chapter 1 states that the Reserve Component (RC) Incapacitation system is to compensate, to the extent permitted by law, members of the RC who are unable to perform military duties and/or who demonstrate a loss in civilian earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty.

32.  Army Regulation 635-40, chapter 2 states the MTF will provide a thorough and prompt evaluation when a Soldier’s condition becomes questionable in respect to physical ability to perform duty.  Unit commanders will ensure that any physical defects impacting on a Soldier’s performance of duty are reflected in the Soldier’s evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her officer, grade, tank, or rating.  Chapter 3 states that a Soldier whose normal scheduled date of non-disability retirement or separation occurs during the course of hospitalization or disability evaluation may, with their consent, be retained in the service until thy have attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system. 

33.  A Soldier determined unfit due to physical disability by a Physical Disability Evaluation System (PDES) may be deferred from disability separation or retirement when it is determined that the Soldier can still serve effectively with proper assignment limitation.  Chapter 4 states that the MFT commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation.  It appears that the Soldier is not medically qualified to perform duty, the MFT commander will refer the Soldier to a MEB Disability (MEBD).  The MEBD will recommend referral to a PEB those Soldiers who do not meet medical retention standards. 

34.  National Guard Regulation 600-200 governs procedures for enlisted personnel of the Army National Guard.  Paragraph 8-26 covers reasons, applicability, codes, and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG.  Paragraph 8-26j (1) provides for the separation of personnel who are found medically unfit for retention under the provisions of Army Regulation 40-501, chapter 3.  It also states to refer to Army Regulation 135-178, chapter 12.

35.  Army Regulation 635-5 governs the preparation of the DD Form 214.  It states, in pertinent part, that item 12b (Separation Date This Period) will be completed to show the Soldier's transition date.  This date may not be the contractual date if the Soldier is separated early, voluntarily extends, is extended to make up the lost time, or retained on AD for the convenience of the Government.  It states, in pertinent part, that item 12c will be completed to show the amount of service, computed by subtracting item 12a from 12b (Separation Date This Period). 

36.  The same regulation states that item 23 (Type of Separation) will be completed to show the appropriate type of separation.  Item 25 will be completed to show the correct separation authority from the regulatory or directive authorizing the separation.  

37.  Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator (SPD) "JFL," as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is
"disability, severance pay," and that the authority for discharge under this SPD is, "Army Regulation 635-40, chapter 4, paragraph 4-24b(3)." 

38.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JFL" has a corresponding RE code of "3."

39.  Human Resources Command Message (Date Time Group 17 March 2004) disseminated implementing instructions for award of the Global War on Terrorism Service Medal.  This award is designated for Soldiers who have participated in or served in support of Global War on Terrorism Operations outside of the designated area of eligibility determined for award of the Global War on Terrorism Expeditionary Medal on or after 11 September 2001 to a date to be determined.  All Soldiers on active duty, including Reserve Component Soldiers mobilized or National Guard Soldiers activated, on or after 11 September 2001 to a date to be determined having served 30 consecutive days or 60 nonconsecutive days are authorized this award.  

40.  Human Resources Command Message (Date Time Group 17 March 2004) disseminated implementing instructions for award of the Global War on Terrorism Expeditionary Medal for Soldiers who deploy abroad for service in the Global War on Terrorism Operations on or after 11 September 2001 to a date to be determined.  To be eligible for this award a Soldier must be mobilized with or assigned or attached to a unit participating in designated operations for 30 consecutive days or for 60 nonconsecutive days in the areas of eligibility designated, or must meet one of the following criteria: a) be engaged in actual ground combat against the enemy and under circumstances involving grave
danger of death or serious bodily injury from enemy action, regardless, of the time in the area of eligibility; b) while participating in the designated operation, regardless of time, is killed or wounded/injured requiring medical evacuation from the area of eligibility, or c) participate as a regularly assigned air crew member flying sorties for 30 consecutive days or 60 nonconsecutive days into, out of, within, or over the area of eligibility in direct support of Operations Enduring Freedom and/or Iraqi Freedom.  The message also states that under no condition will any Soldier in the United States receive this award. 

41.  Army Regulation 600-8-22 (Military Awards) provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

42.  The same regulation states that Active Guard Reserve (AGR) enlisted personnel serving on extended periods of active duty (other than for training) under titles 10 and 32, USC (United States Code) are eligible for award of the Army Good Conduct Medal for qualifying service beginning on or after 1 September 1982, provided no period of the service has been duplicated by
the same period of service for which the Soldier has been awarded the Army Reserve Components Achievement Medal.  The Army Good Conduct Medal qualification period may commence anytime during the 3 years immediately preceding the 1 September 1982 effective date provided no portion of service for the Army Good Conduct Medal is included in a period of service for which the Army Reserve Components Achievement Medal was awarded.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was ordered to active duty on 15 March 2003 in support of OIF and OEF.  He injured his lower back in June 2003 while serving in Iraq.  He was found to have a herniated disc and did not return to deployment.  He was issue a temporary profile due to low back pain.  He was assigned to the holding detachment and was later released from active duty on 8 November 2003 and transferred to a TPU.  While serving in a TPU, he extended his enlistment.  


2.  The G-1 stated that the State Surgeon had determined that additional medical documentation was required before a medical determination or physical profile could be completed.  A fitness for duty evaluation was conducted and the applicant was issued a permanent profile.  He was attached to the MAMC for the purpose of an MEB.  He appeared before an MEB and was diagnosed as having low back pain, with L-5 disk herniation, which was medically unacceptable in accordance with regulation.  

3.  The MEB recommended that he be referred to a PEB.  The informal PEB found the applicant physically unfit and recommended a combined rating of 10 percent, with severance pay.  The applicant nonconcurred with the PEB’s recommendation and demanded a formal hearing.  He appealed and appeared before a formal PEB.  Once again, he was found physically unfit and the PEB recommended a combined rating of 10 percent, with severance pay.  He concurred with the PEB's recommendations.

4.  The applicant was honorably discharged from the CAARNG on 21 April 2007, under the provisions of NGR 600-200, chapter 8, paragraph 8-26j(i), for being medically unfit for retention.

5.  The NGB recommends that the applicant’s records be corrected to show his separation date as 21 April 2007, to entitle the applicant to receive active duty pay and benefits for the period to which he was ordered to active duty [15 March 2003 through 21 April 2007, less that period for which he has already been paid active duty pay and allowances], to entitle him to receive severance pay for the same period, and to correct his DD Form 214 to reflect the appropriate awards for his service in OIF and OEF.

6.  The evidence shows that the applicant was ordered to active duty in support of OEF and OIF and was deployed to the imminent danger pay area from 15 March 2003 to 8 November 2003.  He is therefore eligible for award of the Global War on Terrorism Service Medal and the Global War on Terrorism Expeditionary Medal and to have these awards added to his DD Form 214.

7.  The applicant was not awarded the Good Conduct Medal.  Based on his date ordered to active duty, of 15 March 2003, and his honorable discharge date of 21 April 2007, which equated to 4 years, 1 month, and 7 days of active duty service, he was more than qualified for this award.  His records revealed no derogatory information.  He is therefore eligible for award of the Good Conduct Medal for the period 15 March 2003 to 14 March 2006.

8.  In the interest of justice and equity and based on the recommendations of the NGB, to grant him full relief, it would now be appropriate to correct the applicant’s records as recommended below.

BOARD VOTE:

___x____  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  showing the entry "2007 04 21" in item 12b (Separation Date This Period) of his DD Form 214; 

      b.  showing the entry "0004 01 07" in item 12c (Net Active Service This Period) of his DD Form 214; 

      c.  by awarding the applicant the Global War on Terrorism Service Medal; and the Global War on Terrorism Expeditionary Medal, and adding these awards to item 13 (Decoration, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), of his DD Form 214.

	d.  awarding the applicant the Good Conduct Medal for the period 15 March 2003 to 14 March 2006, and adding this award to item 13, of his DD Form 214;

	e.  showing the entry "10 percent Severance Pay" in item 18 (Remarks), of his DD Form 214;

	f.  showing the entry "Discharge" in item 23 (Type of Separation), of his DD Form 214;

	g.  showing the entry "AR 635-40, PARA 4-24B(3)" in item 25 (Separation Authority); 
	h.  showing the entry "JFL" in item 26 (Separation Code), of his DD Form 214; 

i.  showing the entry "3" in item 27 (Reentry Code), of his DD Form 214; 

	j.  showing the entry "Disability Severance Pay" in item 28 (Narrative Reason for Separation), of his DD Form 214; and

	k.  correcting his records to show that he is entitled to received active duty pay and benefits from 9 November 2003 to 21 April 2007, and to be paid severance pay based on his net active service, as computed by DFAS. 




       _   ___x___   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



























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