IN THE CASE OF:	  

		BOARD DATE:	    12 August 2008

		DOCKET NUMBER:  AR20080000492 


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 general discharge from the New Hampshire Army National Guard (NHARNG) be voided; that he be reinstated to active duty; that he receive a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB); that his reduction to pay grade E-3 be revoked; and that he receive back pay. 

2.  The applicant states, in effect, that he was a National Guard Soldier on active duty.  He sought medical treatment for a torn tendon while on leave and was prescribed pain medication to which he became addicted.  He was subsequently reduced for failure to report for duty and was discharged for non-participation.  He was not medically evaluated.  There was no line of duty for his injury.    

3.  The applicant provides copies of a Memorandum, United States Army Medical Command, dated 12 December 2007 with enclosures A to T; Department of Veterans Affairs (VA) Rating Decision, dated 11 December 2007; VA Claim Decision dated 27 December 2007; VA Discharge Summary, printed 3 January 2008; and a Cambridge Health Alliance Discharge Summary, dated 6 December 2006.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel has not submitted any statement or additional evidence.



CONSIDERATION OF EVIDENCE:

1.   On 5 January 2004, the applicant, a member of the NHARNG, was ordered to active duty in support of Operation Iraqi Freedom.

2.  Personnel Action (DA form 4187), 1st Battalion, 172nd Field Artillery Brigade, NHARNG, dated 13 February 2004, promoted the applicant to the rank of specialist, pay grade E-4 with an effective date and date of rank of 
10 February 2004.

3.  On or about 27 February 2004, the applicant was deployed to Iraq for duty. 

4.  Records indicate that the applicant suffered an injury to his left ankle in July 2004.  There is no available Line of Duty (LOD).  The available records are unclear as to the date of the applicant’s return to the United States.

5.  On 1 September 2004, the applicant underwent a medical evaluation at the New England Baptist Hospital.  He had incurred, on or about 29 July 2004, an inversion injury to his left ankle at the same time that he had twisted his left knee. He suffered from chronic ongoing pain along the antero-lateral and postero-lateral left ankle.  On 3 September 2004, he was diagnosed with an acute tear of the peroneus brevis tendon, consistent with an inversion injury that would cause that tendon to split.  The applicant was placed in a walking cast and provided crutches for walking in order to immobilize the function of the peroneal tendons for a period of 4 weeks, followed by 2 weeks of physical therapy. 

6.  On 12 October 2004, the applicant received an approved leave request (DA Form 31) for ordinary leave during the period 14 October to 4 November 2004.

7.  On 4 November 2004, the applicant underwent peroneal surgery.  The brevis tendon was found dystrophic with a linear split centrally.  It was sutured.  The applicant was to put no weight on the injury for several weeks and to return after 2 weeks for suture removal.

8.  On 28 December 2004, DA Forms 31 were initiated for convalescent leave during the periods from 5 November to 5 December 2004; and from 6 December 2004 to 6 January 2005.

9.  On 8 January 2005, a doctor at the New England Baptist Hospital wrote a letter, addressed to whom it may concern, stating that the applicant's recovery was set back at least 1 month due to an inability to receive a physical therapy rehabilitation program.  This prevented his ability to return to any form of active duty status.
10.  On 28 January 2005, the applicant's commander approved and signed a Personnel Action (DA Form 4187) changing the applicant's duty status from present for duty to AWOL, effective 0800 hours, 24 January 2005.

11.  On 2 March 2005, the applicant's surgeon wrote that "the applicant had been unable to acquire a physical therapy regimen due to snafus of both communication and compliance with the administrative staff of the U.S. Armed Forces."  At the time, there was impending residual adhesion pain and stiffness of the left ankle due to a lack of postoperative physical therapy.  The surgeon further stated that an aggressive regimen of physical therapy was immediately necessary in order to avoid long-term and potentially catastrophic disability due to inappropriate rehabilitation.

12.  On 5 April 2005, the applicant was issued a Provisional Pass (DD Form 460) ordering him to proceed by the most direct route on the first available transportation from Fort Dix, New Jersey to Fort Knox, Kentucky. 

13.  A receipt, Carlson Wagonlit Travel, Fort Dix, New Jersey, dated 5 April 2005, shows that the applicant purchased a ticket for air travel from Philadelphia, Pennsylvania to Louisville, Kentucky, departing and arriving that same day.

14.  On 16 April 2005, the Special Assistant to the Commanding General, United States Armor Center, Fort Knox, Kentucky, sent an e-mail (electronic communication) requesting that another colonel (office unavailable) take a hard look at the applicant's case.  It stated that it did not make sense that a veteran back from Operation Iraqi Freedom would be AWOL or desert from his post-operative medical care.  It further stated that it appeared that mistakes were made out of ignorance, not malice, and trusting junior noncommissioned officers to follow through; and that there may have been people at Fort Dix who did not want to admit they failed in their tasks.  It commented, "We are working hard to retain good Soldiers, are we sure we want to destroy this young man's life?" 

15.  On 25 April 2005, the applicant was given his initial counseling at the Massachusetts Community Based Health Care Organization (MA CBHCO).   He was assigned to the MA CBHCO in a medical holdover (MHO) status in order for the unit to assist him with his medical treatment.  

16.  On 10 August 2005, the applicant was admitted to Walter Reed Army Medical Center (WRAMC), Washington, DC.  He was initially diagnosed with post traumatic stress disorder (PSTD) versus adjustment disorder.  He was admitted for observation and further evaluation after giving a confusing history in the emergency room (ER) concerning his medical care over the previous 6 months.  He had depressive symptoms in the ER.  His anxiety seemed to be mild in nature and related only to the specific situation of returning to Fort Dix, New Jersey.  Collateral information was obtained from Medical Holding at Fort Dix and from his National Guard unit in New Hampshire.  Based on interviewing and observing the applicant, as well as the collateral information, it was determined that the applicant had no mental illness and was in no need of further psychiatric treatment.  Due to his AWOL status, it was arranged for his command at Fort Dix, New Jersey, to come to WRAMC and take custody of him.  He was discharged on 12 August 2005.

17.  A Memorandum for Provider, WRAMC, dated 13 September 2005, indicates that the applicant was not issued a profile for his left ankle and was found fit to perform military duties.  He was cleared to return to duty and to be released from active duty.  It also indicated under "Treatment Plan (if not fit)" that he was to follow up with his surgeon at New England Baptist Hospital.  The form was signed by a United Stated Army Reserve major, medical doctor.

18.  On 23 October 2005, the applicant, now a private first class, pay grade E-3, was released from active duty due to completion of required active service and transferred to the 1st Battalion, 172nd Field Artillery Regiment, Lowell, Massachusetts.  He had completed 1 year, 10 months, and 5 days of creditable active duty during this period of service.  The narrative reason for separation was completion of required active service.  His characterization of service was honorable.  Item 12h (Effective Date of Pay Grade) of the applicant’s DD Form 214, shows a date of 7 February 2002.

19.  On 22 December 2005, the applicant was diagnosed with stenosing tenosynovitis peroneus brevis and longus tendon, left, [constriction and inflammation of a tendon sheath involving a short leg muscle and a long tendon] and underwent another surgery.  He was prescribed Percocet and Keflex four times a day for 3 days postoperative; to keep all weight off ankle and to return to the doctor after 7 days for follow-up evaluation.

20.  Orders 270-028, State of New Hampshire, dated 27 September 2006, discharged the applicant from the Army National Guard due to unsatisfactory participation, and transferred him to the United States Army Reserve (USAR) Control Group (Reinforcement), effective 27 September 2006.

21.  On 12 December 2007, the Senior Health Care Administrator, Directorate of Health Policy and Services, United States Army Medical command, Fort Sam Houston, Texas, stated in a memorandum to this Board and to the Commander, United States Army National Guard Bureau, that the applicant should receive a complete medical evaluation and be provided with the appropriate line of duty (LOD) documentation.  
22.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, Arlington Virginia.  Based on correspondence from the Office of The Staff Judge Advocate, Fort Knox, Kentucky showing that the applicant's duty status was erroneously reported as being absent without leave (AWOL), the advisory opinion recommended that he be reinstated back into the Army National Guard for proper medical and physical evaluations.  It further recommended that he receive back pay and allowances from the date of his separation to the date he is reinstated.  This recommendation was also based on the Chief Surgeon's Office, Army National Guard, recommendation to reinstate the applicant for the purpose of undergoing a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).

23.   On 18 April 2008, the applicant concurred with the advisory opinion.

24.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that Medical Treatment Facility (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 MFT for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.  It further provides that a Soldier whose normal scheduled date of non-disability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.  A Soldier determined unfit due to physical disability by the Physical Disability Evaluation System may be deferred from disability separation or retirement when it is determined that the Soldier can still serve effectively with proper assignment limitation.  It also states that the MTF commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation.  If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a MEB.  The MEB will recommend referral to a PEB those Soldiers who do not meet medical retention standards.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that the applicant was ordered to active duty as a specialist, pay grade E-4 and was subsequently released from active duty and transferred back to the NHARNG in the rank of private first class, pay grade E-3.  However, the circumstances and documentation regarding his reduction in rank and pay grade are not available for review.  Furthermore, Item 12h of his DD Form 214 shows his date of rank as 7 February 2002.  However, the evidence is insufficient upon which to base any determination of error or injustice.  

2.  The available evidence clearly shows that the applicant incurred an injury while on active duty and underwent corrective surgery at a civilian hospital.  However, there is no evidence showing that an LOD determination regarding this injury was ever completed.  Furthermore, there is no evidence showing that the applicant underwent an MEB or PEB prior to his release from active duty.  Also, there is an indication that he may have been released while still addicted to pain medication.  The available evidence does not support the applicant’s contention that he should be reinstated to active duty.  However, as a matter of equity, the applicant should be provided a complete medical examination to determine if he was qualified for severance pay or disability retirement.   

3.  The available evidence does not substantiate the applicant’s contention that his general discharge from the NHARNG should be voided.  However, if further medical evaluations show that he was incapable of performing his duties due to a prescription drug addiction, then the NHARNG should be informed of those circumstances and encouraged to review his discharge for non-participation. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X___  ___X____  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 him an travel order for the purpose of undergoing an MEB and PEB; and 
   
   b.  directing him, as a member of the USAR Control Group (Reinforcement) to report for a medical evaluation at the nearest available military medical treatment facility (MTF) to his present residence; and
   
   c.  providing MEB and or PEB findings and recommendations to the NHARNG and the USAR for their further action, as necessary. 
   
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 reinstatement to active duty, restoration of rank or back pay, or voiding of his discharge from the NHARNG.  




      _______ _   _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.



ABCMR Record of Proceedings (cont)                                         AR20080000492





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ABCMR Record of Proceedings (cont)                                         AR20080000492



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