IN THE CASE OF:	  

		BOARD DATE:	  	  13 January 2009

		DOCKET NUMBER:  AR20080001222 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be allowed to appear before a formal Physical Evaluation Board (PEB).  

2.  Counsel gives a brief summary of the applicant's personal history and military history.  He also gives a case history of the circumstances surrounding the applicant's medical conditions which began in January 2003 to the date he was discharged from the Army in July 2006.  

3.  Counsel alleges that the applicant was demobilized and sent home without receiving proper treatment of his injuries.  Counsel states that, since the Army failed to properly treat the applicant's injuries, he was found unfit for duty.  The applicant was mobilized to serve his country in support of Operation Enduring Freedom.  He willingly deployed with his unit to help defend his country against the threat of terrorism.  However, during the applicant's deployment, he injured both of his shoulders and his lower back in the line of duty.  Less than 6 months later, the applicant was mobilized to Iraq again.  Counsel states the applicant was treated at the medical facility in Kuwait from July 2003 through October 2003 for continued pain in his shoulders with numbness in both arms and lower back pain.  His activation orders were extended to allow him to receive medical care.  The applicant subsequently had surgery to repair ruptures in his right shoulder, had numerous hours of physical therapy, received injections in his back to lessen the pain, was diagnosed with additional tears in both of his shoulders, and had bulging discs at the L-4/L-5 position in his back.  

4.  Counsel alleges the applicant would have fully understood the PEB process if he had received proper advice from his military legal counsel.  The applicant requested a formal PEB to get all of his medical issues addressed and he was scheduled for a formal PEB on 4 April 2006.  In a telephone conversation with his military legal counsel, the applicant was advised that a decision had to be made first on his Continuance on Active Reserve (COAR) request before he could appeal the decision of the informal PEB.  The applicant withdrew his request for a formal hearing.  At that time, the applicant was led to believe he could cancel the formal PEB (4 April 2006) and wait until the decision was made on his request to remain on active duty.  Counsel states the applicant was also led to believe that he could either request to remain on active duty or to request a formal PEB, but that he could not do both at the same time.  Counsel states that Army Regulation 635-40, paragraph 6-8 requires the Physical Evaluation Board Liaison Officer (PEBLO) to counsel and to inform the Soldier.  He references Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 6-8a(1), which states:

"Before a COAD or COAR application is forwarded to the approval authority, the PEB will process the case to completion, to include the following:

		(a)  Convening a formal hearing, if requested.
		(b)  Determine a percentage rating.
		(c)  Recommending a disposition that will apply if application for continuation is disapproved.” 

5.  Counsel also alleges that the conditions for both of the applicant's shoulders should have been reevaluated and new determinations should have been made regarding the applicant's fitness for duty and retainability, along with the diabetes and the degenerative disc disease.  Counsel states the applicant had several other medical conditions that were originally deemed as retainable that increased in severity.  The applicant also had additional medical abnormalities that had been discovered.  

6.  Counsel further alleges that the applicant asked for a formal PEB in order to present his case and to be heard and he was not given this right.  Based on the advice of his counsel and submissions to the Board, the formal PEB was canceled.  Only a review of the findings was completed by the Physical Disability Agency.  In conclusion, counsel stated the applicant was determined 100 percent disabled by the Veterans Affairs.  
7.  Counsel provides supporting documentation as listed under Supporting Documentation in his petition.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 April 1982 for a period of three years.  At the completion of the required training, he was awarded military occupational specialty (MOS) 11C (indirect fire infantryman).  He was honorably discharged from active duty on 25 April 1985.  On the following date, he was transferred to a Reserve unit.  He was apparently discharge around April 1996.

2.  The applicant enlisted in the U.S. Army Reserve on 15 October 1999 and continued to serve in the Reserve component.  

3.  The applicant was given a Noncommissioned Officer Evaluation Report (NCOER) for the period November 1999 through October 2000 which shows his principal duty title as Squad Leader.  His rater evaluated him as "Fully Capable" and his senior rater (SR) evaluated him as "Successful."  The SR placed an "X" in Block 2 for his overall performance and for his overall potential for promotion and/or service in positions of greater responsibility.  

4.  The applicant was given a NCOER for the period November 2000 through October 2001 which shows his principal duty title as Platoon Sergeant.  His rater evaluated him as "Fully Capable" and his SR evaluated him as "Successful."  The SR placed an "X" in Block 1 for his overall performance and for his overall potential for promotion and/or service in positions of greater responsibility.  

5.  He was promoted to sergeant first class, E-7 and was awarded primary MOS 88M (motor transport operator) on 15 July 2002.  

6.  Department of the Army, 99th Regional Support Command, Coraopolis, Pennsylvania Orders M-019-0016, dated 19 January 2003, show the applicant was ordered to active duty in support of Operation Enduring Freedom and Operation Iraqi Freedom on 21 January 2003 for a period of 365 days.  

7.  On 7 May 2003, the applicant had surgery to repair an umbilical hernia.  He was placed on a temporary physical profile on 10 May 2003 for the umbilical hernia. 

8.  The applicant's service personnel records contain a Statement of Medical Examination and Duty Status which shows he was admitted to the 115th Field Hospital in Kuwait on 17 May 2003 for repair of an umbilical hernia.  
9.  On 2 October 2003, the applicant was placed on a temporary physical profile for L-5 disc and both shoulders with a temporary expiration date of 2 January 2004.  He was given numerical designators of 133111 for the physical profile. The profiling officer indicated the applicant needed spine and shoulder surgery consultations at the demobilization site.  His assignment limitations were listed as no lifting, pushing, pulling, or carrying items more than 10 pounds.  He had a Magnetic Resonance Imaging (MRI) of his right shoulder and lumbar spine on 15 November 2003 which revealed a rupture of his biceps tendon and bulging discs at L-4/L-5 positions with compression on the L-5 nerve.  

10.  The applicant's medical documents show he was treated at a medical facility in Kuwait for pain in his lower back and shoulders during the period July 2003 through November 2003.

11.  The applicant was given a NCOER for the period February 2003 through January 2004 which shows his principal duty title as Motor Transport Operator.  His rater evaluated him as "Fully Capable" and his SR evaluated him as "Successful."  The SR placed an "X" in Block 2 for his overall performance and for his overall potential for promotion and/or service in positions of greater responsibility.  

12.  Headquarters, 99th Regional Readiness Command, Coraopolis, Pennsylvania Orders M-04-012-0239, dated 12 January 2004, amended Orders M-019-0016, dated 19 January 2003, to show the applicant's period of active duty was changed from 365 days to 498 days.

13.  His service personnel records contain a Statement of Medical Examination, dated 31 January 2004, which shows he injured his lower back while lifting sand bags and other objects in the process of loading and unloading trucks in the company area.  This document indicates that "No specific trauma-injury was a result of prolonged activity."  

14.  The applicant was released from active duty on 30 May 2004.  

15.  On 17 September 2004, the applicant completed a Pre-Deployment Health Assessment.  The health provider indicated that the applicant was diagnosed with a rotator cuff tear and L-4/L-5 disc bulge during his deployment in 2003.  At that time, the applicant was profiled and unable to perform duties in his MOS.  It was determined that the applicant was not deployable.  

16.  The applicant was ordered to active duty on 5 October 2004 for medical retention processing.

17.  The applicant's umbilical hernia and lower back pain were reviewed for completeness and determined to have been incurred in the line of duty on 3 June 2005.  

18.  On 19 June 2005, the applicant was placed on a permanent physical profile for lumbar degenerative disc disease and right shoulder pain.  His physical limitations were listed as "no lifting more than 15 pounds; may perform clerical duties."

19.  On 26 August 2005, the applicant was evaluated by a Medical Evaluation Board (MEB).  The MEB found that the applicant had the following medical conditions: (1) diabetes mellitus II (not medically retainable); (2) degenerative disc disease at L-3-L5 (not medically retainable); (3) left rotator cuff tendonitis (medically retainable); (4) bilateral carpal tunnel syndrome (medically retainable); (5) eczema (medically retainable); (6) acid reflux (medically retainable); 
(7) hypertension (HTN) (medically retainable); (8) hyperlipidemia (raised or abnormal levels of lipids in the blood) (medically retainable); (9) umbilical hernia (medically retainable); and (10) right rotator cuff tear (medically retainable).  He was referred to a PEB.  The MEB proceedings indicated the applicant desired to continue on active duty under Army Regulation 635-40.  The MEB proceedings were approved and the applicant agreed with the MEB's findings and recommendations.  

20.  On 16 September 2005, the applicant had an MRI of his right shoulder.  The MRI revealed no evidence of fracture, dislocation or calcific tendonitis. 

21.  On 30 October 2005, the applicant submitted a COAR request.  He requested assignment to duties that he would be able to perform within the limitations imposed by his physical disabilities.    

22.  An informal PEB convened on 5 January 2006.  The PEB found the applicant was physically unfit due to chronic low back pain after he injured his back while deployed in Iraq under Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5237 and recommended separation with severance pay with a combined rating of 10 percent.  The PEB proceedings indicated that the MRI noted multilevel degenerative disc disease and that this condition existed prior to entry on active duty and the condition was permanently service-aggravated by an injury in Iraq.  The applicant was deemed not to be a candidate for surgery.  Diagnosis 1 (diabetes mellitus II) of the MEB was determined to be unfitting and was not rated.  Diagnoses 3 through 10 (left rotator cuff tendonitis, bilateral carpal tunnel syndrome, eczema, acid reflux, hypertension, hyperlipidemia, umbilical hernia, and right rotator cuff tear) were determined to be medically acceptable.  The PEB proceedings noted the applicant had requested COAR status in accordance with paragraph 8-7 of Army Regulation 635-40.

23.  On 19 January 2006, the applicant did not concur with the findings and recommendations of the PEB and he waived his right to a formal hearing.  He submitted a written appeal to the PEB proceedings. 

24.  In his appeal to the PEB, the applicant stated that he did not dispute the diagnosis of the two degenerated discs in his back but that he also had two bulging discs that occurred after he was injured during his deployment.  He stated his first MRI in Iraq did not show any disc degeneration, it only showed the two bulging discs.  He stated he was able to perform and complete all activities prior to his deployment.  Since his injury, he was limited in his daily activities due to pain in his back and both shoulders.  He stated that he had devoted 18 years of his life to the military and wanted to be fairly compensated.  He felt he was due military retirement and should be able to keep his military identification card.  He was going to be subject to pain the rest of his life.  He may not be able to perform the duties of his civilian job and he was limited in all of his personal activities.  He wanted "COAD" (sic, i.e., COAR) status because he could still effectively serve in the Army with proper assignment limitations.  He wanted his other health issues, to include his hernia surgery, blood pressure, skin inflammation, and diabetes to be considered.  He stated he had surgery on his right shoulder and he needed surgery on his left shoulder.  He requested his injuries be reconsidered if he was not selected for COAR status.

25.  In a 28 January 2006 letter, the U.S. Army PEB, Washington, D.C. informed the applicant that he did not have any new substantive medical information that had not been previously considered.  The applicant was also informed that the Board affirmed the decision of the informal PEB.  

26.  The informal PEB proceedings were amended on 8 February 2006.  Item 8a was corrected to include VASRD code 5299 and item 8a was corrected to show the entry "(MEB Dx 2, DD Form 2808)."  On 16 February 2006, the applicant did not concur with the amended PEB proceedings and demanded a formal hearing with a personal appearance.  He provided statements in disagreement with the PEB proceedings; however, these statements are not available.  

27.  In a 28 February 2006 memorandum, the Chief, Operations Division, U.S. Army Physical Disability Agency indicated that the applicant's case was returned for a formal board as requested on 16 February 2006.  


28.  A 9 March 2006 letter indicates the applicant had been scheduled for a formal PEB hearing.  The applicant was advised of the details regarding the formal PEB in a letter, dated 9 March 2006.  He was informed that the PEB would convene a formal hearing on 4 April 2006 at 0830 hours at Walter Reed Army Medical Center, Washington, D.C., to evaluate his physical condition.  

29.  The applicant completed a DA Form 5890-R (Acknowledgement of Notification of Formal PEB hearing) on 10 March 2006.  He acknowledged receipt of the letter informing him of the date and time of the formal hearing.  He indicated he had contacted the appointed legal counsel identified in the letter, that he would appear for the hearing, and that he did authorize counsel of record access to his medical records and allied papers.

30.  A DA Form 751 (Telephone or Verbal Conversation Record) indicated the applicant's legal counsel contacted him by telephone on 3 April 2006.  This document indicated the applicant withdrew his demand for a formal hearing before the Washington PEB.  His legal counsel placed an "X" beside the statement "The soldier does not agree with the informal PEB decision but will not submit additional information at this time" and entered the comments "The soldier has submitted a COAR request and reserves his right to appeal the PEB's decision."  The Conversation Record indicated that "The soldier understands that submission of this waiver serves to cancel the previously scheduled formal hearing and that his/her case will be forwarded for further processing and applicable reviews."  The legal counsel signed the Conversation Record and entered "by phone" on the signature line of the applicant.  

31.  On 14 April 2006, a Reserve Component Advisor from the U.S. Army Physical Disability Agency, recommended the applicant's request for COAR status be disapproved.  

32.  On 15 June 2006, the applicant's request for COAR status was disapproved by the U.S. Army Human Resources Command, St. Louis, Missouri.  

33.  In a 21 June 2006 memorandum, the Chief, Operations Division, U.S. Army Physical Disability Agency, indicated the applicant's disagreement with the findings of the PEB and his entire case had been reviewed.  The agency concluded that the applicant's case was properly adjudicated by the PEB which correctly applied the rules that governed the Physical Disability Evaluation System (PDES) in making its determination.  The memorandum indicated the findings and recommendations of the PEB were supported by substantial evidence and were affirmed.  The applicant was advised he was eligible for medical care through the Department of Veterans Affairs (DVA) if they determined his illness or injury were service-connected.  
34.  The applicant was honorably discharged on 21 July 2006 under the provisions of Army Regulation 635-40, paragraph 4-24b(3) by reason of physical disability with severance pay.  He had completed a total of 18 years, 11 months, and 1 day of total net service for pay purposes.

35.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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/her office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.  In pertinent part, it states that the mere presence of an 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.  

36.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that 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.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant had injured both of his shoulders and his lower back in the line of duty in Iraq but he did not receive proper treatment for his injuries.  

2.  The applicant's medical documents reveal that he was treated at a medical facility in Kuwait during the period July 2003 through November 2003 for pain in his lower back and his shoulders.  
3.  The applicant was placed on a temporary profile in October 2003 while in Iraq for L-5 disc and both shoulders.  At that time, the profiling physician indicated the applicant needed surgery consultations for his spine and shoulder.  In November 2003, the applicant had a MRI of his right shoulder and lumbar spine which revealed a rupture of his biceps tendon and bulging discs at L-4/L-5 positions with compression on the L-5 nerve.  He was later placed on permanent profile for degenerative disc disease and right shoulder pain.  

4.  Counsel contended the applicant received incorrect advice from his military legal counsel that a decision had to be made first on his COAR request before he could appeal the decision of the informal PEB.  

5.  The available evidence contains a Telephone or Verbal Conversation Record that indicates the applicant's military legal counsel contacted him on 3 April 2006 regarding a waiver of his formal PEB.  This document shows the applicant had submitted a COAR request and reserved his right to appeal the informal PEB's decision.  This document indicates the applicant understood that submission of the waiver served to cancel the previously scheduled formal PEB.  However, there is insufficient evidence to substantiate counsel's claim that the applicant was misinformed by previous counsel.  

6.  Counsel also contended that the conditions for both of the applicant's shoulders should have been reevaluated and new determinations should have been made regarding the applicant's fitness for duty and retainability, along with the diabetes and the degenerative disc disease.  

7.  The applicant was evaluated by a MEB on 26 August 2005.  At that time, he was diagnosed as having diabetes and degenerative disc disease.  His other medical conditions that were listed (left rotator cuff tendonitis, bilateral carpal tunnel syndrome, eczema, acid reflux, hypertension, hyperlipidemia, umbilical hernia, and right rotator cuff tear) were determined to be medically retainable. Therefore, these medical conditions did not medically disqualify the applicant from performing his duties.  

8.  A 5 January 2006 informal PEB found him unfit for military service for chronic low back pain at a 10 percent combined disability rating.  The informal PEB proceedings were later amended to include VASRD code 5299 (degenerative disc disease).  There is no evidence to show the applicant's disabilities were improperly rated by the informal PEB or that his separation with severance pay was not in compliance with law and regulation.  

9.  Counsel contended that the applicant asked for a formal PEB in order to present his case and he was not given this right.  
10.  The applicant was originally scheduled for a formal hearing on 4 April 2006. The evidence of record shows he later withdrew his request for a formal hearing by a telephone conversation with his military legal counsel.  

11.  It appears that an error or injustice does not exist in this case.  Therefore, there is no basis for granting the applicant's request for a formal PEB.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____xx____  ___xx_____  __xx______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ xxx_   _______   ___
               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)                                         AR20080001222



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ABCMR Record of Proceedings (cont)                                         AR20080001222



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