IN THE CASE OF:
BOARD DATE: 24 June 2008
DOCKET NUMBER: AR20080007052
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 correction of the narrative reason for separation to show medical disability instead of completion of required service.
2. The applicant states that he was released from active duty due to his back injury which worsened after being recalled to active duty.
3. The applicant provided the following additional documentary evidence in support of his application:
a. DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 3 February 2008.
b. Self-authored statement, dated 12 March 2008.
c. Doctor's statement, dated 11 February 2008.
d. Standard Form 600 (Chronological Record of Medical Care), dated 11 January 2008.
e. Memorandum, dated 15 January 2008, Request for Early Release from Active Duty.
f. DA Form 3349 (Physical Profile), dated 15 January 2008.
g. Memorandum, dated 17 January 2008, Release from Active Duty.
CONSIDERATION OF EVIDENCE:
1. With prior service in the Regular Army, the applicant's record shows that he enlisted in the Michigan Army National Guard (MIARNG) in the rank/grade of private first class (PFC)/E-3 for a period of 8 years on 7 April 2004. He was subsequently ordered to initial active duty for training (IADT), completed advanced individual training, and was awarded military occupational specialty (MOS) 31B (Military Police).
2. On 29 March 2005, the applicant requested an Inter-State transfer to the Indiana Army National Guard (INARNG). His request was approved and he was subsequently assigned to the 38th Military Police Company, Indianapolis, Indiana.
3. On 31 August 2005, the applicant was discharged from the INARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).
4. On 27 September 2006, the applicant enlisted in the INARNG for a period of 5 years and 27 weeks, in the rank/grade of PFC/E-3, in MOS 31B. He was subsequently assigned to the 938th Military Police Detachment, Michigan City, Indiana.
5. On 3 March 2007, the applicant was discharged from the IARNG and transferred to the USAR Control Group (Annual Training).
6. On 10 October 2007, the applicant was ordered to active duty in support of Operation Iraqi Freedom. He was ordered to report to Fort Jackson, South Carolina, on 11 November 2007, with subsequent assignment to the 191st Military Police Company, Bismarck, North Dakota; however, there is no indication in the applicant's record that he served in an imminent danger pay area during this period of call to active duty.
7. On 11 January 2008, the applicant was treated at the military treatment facility, Fort Dix, New Jersey, for lower back pain and left shoulder pain. The attending physician recommended the applicant be released from active duty.
8. On 15 January 2008, while training at Fort Dix, New Jersey, the applicant was issued a temporary physical profile for back sprain in his middle to lower back.
9. On 15 January 2008, by memorandum, the Mobilization Unit at Fort Dix, New Jersey, requested the applicant be released from active duty due to pre-existing medical and behavioral condition.
10. On 17 January 2008, by memorandum, the Deputy Commander for Clinical Services, Walson Army Medical Support Element, Fort Dix, New Jersey, stated that the applicant required further evaluation to determine if he met retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and that he had multiple degenerative changes in the lower back.
11. On 24 January 2008, Headquarters, Fort Dix, New Jersey, published Orders 024-0019, releasing the applicant from active duty, not by reason of physical disability, effective 3 February 2008.
12. The DD Form 214 the applicant was issued at the time of his separation shows he was honorably released from active duty on 3 February 2008 by reason of completion of required active service. This form further shows that he completed 2 months and 23 days of creditable military service.
13. In his statement dated 12 March 2008, the applicant states that he was released from active duty for lower back pain. He further states that his condition was not pre-existing and that his military service contributed to his back pain. He also states that he previously participated in various rodeo events at a local level, but was never injured. He attributes his pain to his training at Fort Jackson, South Carolina and concludes that he also suffers from a hearing loss and high blood pressure.
14. The applicant also submitted a statement from his civilian doctor, dated 11 February 2008. In this statement, the doctor states that the applicant had persistent chronic lower back pain and requires further evaluation by a specialist to determine the underlying reason for his back pain.
15. Army Regulation 135-178 (Enlisted Administrative Separations) prescribes the policies for the separation of enlisted Soldiers from the Reserve Components. Chapter 15 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness. It requires, in pertinent part, that a Soldier be notified if he was determined to be medically disqualified for continued service in the USAR. Along with the notification, the Soldier is required to acknowledge the notification and elect one of the following options on the notification of medical unfitness for retention and election of options:
a. request reassignment to the Retired Reserve in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), if he had completed 20 years of qualifying years;
b. request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 (15 year retirement);
c. request honorable discharge from the USAR; or
d. request an informal Medical Evaluation Board (MEBD)/ Physical Evaluation Board to review his medical records for a final determination of his medical fitness for retention.
16. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 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. Separation by reason of disability requires processing through the PDES.
17. Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a MEBD to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status. If the MEBD determines a Soldier does not meet retention standards, the case will be referred to a PEB. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. It also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board. It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his discharge narrative reasoning should be changed to medical disability was carefully considered. However, there is insufficient evidence to show he should have been medically discharged by reason of physical disability.
2. The evidence of record confirms the applicant was found physically unfit for further service based on his preexisting medical condition and that a request for his release from active duty was submitted by the Human Resources Command
(HRC) liaison at Fort Dix, New Jersey. Although the applicant's record is void of the notification and acknowledgement of notification of medical unfitness for retention and election of options, it is presumed that he was notified of this finding and the options available to him. Furthermore, in the absence of PEB proceedings, and given the fact that the applicant has not completed the required number of years of qualifying service for normal or early non-regular retirement, it appears that the applicant elected to be honorably discharged from the USAR, and, accordingly, he was discharged on 3 February 2008.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit evidence that would satisfy this requirement. Therefore, the applicant is not entitled to medical disability retirement. He has not shown error, injustice, or inequity for the relief he is requesting.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xxx___ __xxx___ __xxx___ 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.
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