IN THE CASE OF:	  

		BOARD DATE:	  	   24 March 2009

		DOCKET NUMBER:  AR20080007632 


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 she be medically retired.

2.  The applicant states, in effect, that she was released from active duty at Fort Knox, Kentucky after a 1-day separation process with a physician assistant without the benefit of appearing before a medical evaluation board (MEBD) or the physical evaluation board (PEB) and returned to her Reserve unit for completion of her out-processing.  She further states that she was injured while on duty.  She concludes by stating, in effect, that during her separation processing at Fort Knox only her medical records were reviewed; therefore, the transition center was unaware that she had over 15 years of active duty service.

3.  The applicant provides the following documents in support of this application:

	a.  a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 19 December 1985;

	b.  a copy of her DD Form 214, dated 21 April 2003;

	c.  a copy of her DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 7 May 2003;

	d.  a copy of Illinois Army National Guard (ILARNG) Orders 098-116, releasing her from the Army National Guard (ARNG) Active Guard Reserve (AGR) program, dated 8 April 2003;
	e.  copies of her medical narrative summary, dated 7 April  1995;

	f.  copies of her medical reports from Southern Illinois University (SIU) Physicians and Surgeons;

	g.  a copy of an ILARNG memorandum, subject:  Fitness for Duty, dated 28 January 2002;

	h.  a copy of a Headquarters, U.S. Army Medical Department Activity (MEDDAC), memorandum, subject:  Notification of Pending Medical Board Processing, dated 10 June 2002;

	i.  a copy of a Report of Medical Examination, dated 26 June 2002; and 

	j.  a copy of her Department of Veterans Affairs Rating Decision, dated 9 June 2003.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that she enlisted in the ILARNG on 30 March 
1985.  On 26 August 1985, she was ordered to active duty for training (ADT) for the purpose of completing the basic and advanced individual training courses.  On 19 December 1985, the applicant was honorably released from ADT and was returned to the 233rd Military Police Company, Springfield, Illinois.  The DD Form 214 she submitted shows in item 12c (Net Active Service This Period) that she completed 3 months and 24 days of active duty service.

3.  On 23 April 1989, the applicant was ordered to active duty in the ARNG AGR program to fill a full-time manning position in military occupational specialty (MOS) 71L (Administrative Assistant).  The highest grade she held while serving was sergeant first class (E-7).
4.  The applicant submitted a copy of her discharge summary from the Wilford Hall U.S. Air Force Medical Center, Lackland, Texas, dated 7 April 1995, which shows surgery was performed on her left L5-S1 heilaminerctomy for herniated nucleus pulpous and a large free fragment of L5-S1 disk was removed.

5.  The applicant submitted 30 pages of her medical records from SIU Physicians and Surgeons, Springfield, Illinois, from 20 January 2000 through 7 March 2002 which show she had two additional surgeries:  the second surgery on 12 December 2001 for a laminectomy L5-S1, right sided; a fusion L5-S1 posterolateral technique bilaterally; an interbody fusion right sided techniques 
L5-S1; an application of segmental instrumentation L5-S1 and an application of a fusion device, right side; a third surgery on 2 February 2002 for a lower left discectomy; and her physical therapy reports.

6.  The applicant submitted a copy of a memorandum from 1st Battalion, 65th Troop Command Brigade, ILARNG, Springfield, Illinois, dated 28 January 
2002, (apparently to the Brigade surgeon's office) which requested that the applicant be scheduled for a Fit for Duty Evaluation because of multiple back surgeries for degenerative disk disease.

7.  The applicant submitted a copy of a memorandum from Headquarters, U.S. Army MEDDAC, Fort Knox, Kentucky, dated 10 June 2002, to the 1st Battalion, 65th Troop Command Brigade, Springfield, Illinois, subject:  Notification of Pending MEBD Processing, informing them that the applicant was pending an MEBD and/or a PEB for an unfitting condition as defined in Army Regulation 
40-501 (Standards of Medical Fitness), chapter 3.

8.  The applicant's official medical records contain a copy of a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 10 June 2002, which shows that the applicant was seen on 26 November 1985 for right shoulder pain which occurred in the line of duty.

9.  The applicant's official medical records contain a copy of a DA Form 2173, dated 11 June 2002, which shows that the applicant was seen on 16 March 
2002 for injuries she sustained to her back in the line of duty.

10.  The applicant submitted a copy of a DD Form 2808 (Report of Medical Examination), dated 26 June 2002, which shows she underwent a medical physical examination.

11.  On 2 July 2002, the applicant underwent an MEBD for lower back pain; status post fusion of the L5-S1; acromioclavicular joint pain/impingement 

syndrome, right shoulder; left knee pain with early osteoarthritis; and retinal pigment epithelitis, left eye, single episode, inactive since April 2002 with mild vision loss.  The MEBD recommended the applicant be referred to a PEB.  The applicant concurred with the findings and recommendations of that board.

12.  On 19 August 2002, the PEB found that the applicant was physically unfit due to chronic pain in the low left back, the right shoulder, and the left knee.  The applicant was rated under the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) code 5099 and 5003 and granted a 10-percent disability rating.  The PEB found that the MEBD diagnosis 4 was not unfitting and therefore not rated.  The applicant was recommended for separation with severance pay.  On 29 August 2002, the applicant rebutted the findings of the PEB.

13.  On 3 September 2002, the applicant decided not to appear before a formal PEB.

14.  On 3 September 2002, after careful consideration, the PEB found that no changes to the original findings were warranted.  The PEB considered the fact that the applicant's rebuttal contained no objective medical information which would warrant any change to her PEB rating.  The PEB believed the applicant’s very restrictive physical profile was not compatible with continued service in any Army component.  The PEB forwarded the applicant’s case file to the U.S. Army Physical Disability Agency (USAPDA) for final processing in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

15.  On 20 September 2002, the Chief, Operations Division, USAPDA, advised the Commander, Personnel Policy, Programs and Manpower Division, National Guard Bureau (NGB), Arlington, Virginia, that after a review of the applicant's entire case, the finding of unfit was approved and the case was forwarded for consideration of the applicant's request to remain on AGR status as an exception to policy under the provisions of Army Regulation 635-40.  The Chief recommended that the request for continuance on active duty not be favorably considered due to the physical impairment described on the attached DA Form 199 (PEB Proceedings) and in available medical records.  Her physical condition does not permit working 8 hours in a garrison environment, let alone extended hours in a field environment.  The Chief continued to state that the applicant's chain of command strongly indicated that she could not contribute to the unit's readiness or performance.  Her impairment, therefore, prevents the reasonable performance of duties required of the applicant's grade and military specialty.

16.  The applicant's record contains a copy of a memorandum, dated 18 December 2002, from the U.S. Total Army Personnel Command, Chief, Reserve Component, Support Services Division, Office of the Adjutant General, Alexandria, Virginia, subject:  Request for Continuation in an Active Reserve Status of a Disabled Mobilized Soldier – [applicant].  The Chief stated that the applicant's request to continue on active duty in accordance with Army Regulation 635-40, chapter 8, had been reviewed and was not favorably considered.  He stated that the applicant is ineligible for continuation on active duty because she did not meet the medical retention standards in accordance with Army Regulation 635-40, chapter 3, and cannot adequately perform in her current MOS.

17.  ILARNG Orders 098-116, dated 8 April 2003, released the applicant from her AGR status and discharged her from the ARNG and the Reserve of the Army.

18.  On 21 April 2003, the applicant was honorably discharged from active duty in accordance with the provisions of Army Regulation 635-40, chapter 4, paragraph 24b(3), for separation by reason of disability with severance pay.  Item 12c shows her net active duty for this period as 13 years, 11 months, and 29 days; item 12d (Total Prior Active Service) shows her total prior active service as 9 months and 27 days; and item 12e (Total Prior Inactive Service) shows her total prior inactive service as 1 year, 2 months, and 26 days.

19.  The applicant submitted a copy of her VA Rating Decision, dated 9 June 
2003, which shows she received a 10-percent service-connected disability rating for a right shoulder impingement; a 10-percent service-connected disability rating for a diffuse mild bulging disk, C5-6 and C6-7, of cervical spine; a 10-percent service-connected disability rating for residuals from post status L5-S1 fusion with history of discectomy due to herniation of L5-S1, of lumbosacral spine; a 
0-percent service-connected disability rating for post-operative scars, lumbar spine; a 0-percent service-connected disability rating for mitral valve prolapse; a 0-percent service-connected disability rating for sinusitis; and a 0-percent service-connected disability rating for varicose veins.

20.  The applicant submitted a copy of her DD Form 215, dated 7 May 2003, which shows in item 5 (Original DD Form 214 is Corrected as Indicated Below) that item 12d  of her DD Form 214, dated 21 April 2003, was corrected to show her total prior active service as 1 year, 5 months, and 10 days and to show that 

item 12e was corrected to show 2 years, 7 months, and 13 days.  This correction shows she was credited with 15 years, 5 months, and 9 days of creditable active duty service.

21.  The advisory opinion obtained on 24 October 2008, from the Acting Chief, Personnel Division, NGB, Arlington, Virginia, recommended that the applicant's medical records be sent to the MEBD/PEB and, if approved, that she be medically retired with 15 years, 5 months, and 9 days of creditable active duty service.  Also, if approved, that she reimburse the government the severance pay she received upon separation in accordance with the DD Form 214.  The advisory opinion also states that the NGB Office of the Surgeon's General Division, Medical Section, after reviewing the applicant's medical documents and searching their medical database found that it appears her MEBD was never forwarded to the PEB.  On 5 June 2002, a memorandum from the NGB Chief, Surgeon's Division, stated that the applicant required an MEBD/PEB, also a memorandum from the U.S. Army MEDDAC, Fort Knox, Kentucky, dated 10 June 2002, notified the applicant's unit of the initiation of a MEBD.  No further documents reflect that her MEBD was referred to a PEB.

22.  The advisory opinion further states that Army Regulation 40-501, paragraph 3-3 states that Soldiers with medical conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEBD as defined in Army Regulation 40-400 (Patient Administration) and will be referred to a PEB as defined in Army Regulation 635-40.  Physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEBD at the time of identification.  Physicians should not defer initiating the MEBD until the Soldier is being processed for nondisability retirement.  The advisory opinion concludes by stating that the Department of Defense Directive 1332.18 states that any member of the Ready Reserve who is pending separation for non-duty related impairment or condition shall be afforded the opportunity to enter the Disability Evaluation System (DES) for a determination of fitness.  Army Regulation 635-40, chapter 2, paragraph 2-8, states that the Commander, Medical Treatment Facility (MTF), will ensure MEBD proceedings referred to the PEB are complete, accurate, and fully documented as outlined in Army Regulation 40-400.  Chapter 8-6 states that if the Soldier is not eligible for referral to a PEB, the MTF will forward the MEBD to the Soldier’s unit commander for disposition under applicable regulations.  Title 10, U.S. Code, section 12731, states that retirement with at least 15 years for the purpose of section 12731 of the title, the Secretary concerned may determine to treat a member of the Selected Reserve Component of the armed force under the jurisdiction of that Secretary as having met the service requirements.


23.  On 29 October 2008, the applicant concurred with the NGB advisory opinion.

24.  Title 10, U.S. Code, section 12731b, is a special rule for members with physical disabilities incurred in the line of duty, and states, in effect, that in the case of a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary may determine to treat the member as having met the necessary service requirements for retirement at age 60 if the member has completed at least 15 and less than 20 years of qualifying service for retired pay.  

25.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation 
40-501, as amended, provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

26.  Army Regulation 635-40 provides, in pertinent part, that the MTF commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

27.  Army Regulation 635-40, Appendix B, paragraph B-24, states that often a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  Inasmuch as there are no objective medical laboratory testing procedures to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded only on the basis of pain.  Rating by analogy to degenerative arthritis (VASRD code 5003) as an exception to analogous rating policies may be assigned in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.

28.  Army Regulation 635-40 also provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30 percent, if the Soldier has less than 20 years of service as defined in Title 10, U.S. Code, section 1208, and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.


29.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

30.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should have been medically retired was carefully considered and found to be without merit.

2.  Notwithstanding the advisory opinion, the evidence of record confirms the applicant was properly processed through the Physical DES in accordance with the applicable laws and regulations.  Her case was properly considered by an informal PEB and she withdrew her appeal for a formal PEB hearing.  Therefore, there is an insufficient evidentiary basis to support her request for a PEB.

3.  Notwithstanding the advisory opinion, by law and regulation, Selected Reserve members are eligible for a non-regular retirement if they complete least 15 but less than 20 years of qualifying service.  However, this law only applies to Soldiers with NON-DUTY RELATED conditions.  The applicant's medical conditions were DUTY RELATED conditions.  She was given the opportunity to process through the Physical DES.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency’s examinations and findings.

5.  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 has failed to submit evidence that would satisfy this requirement.  The applicant has failed to provide any new medical evidence that would call into question the original decision of the PEB, the decision of the formal PEB, or the affirmation of the PEB findings and recommendations by the USAPDA.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.
BOARD VOTE:

____ ____  ____ ___  ________  GRANT FULL RELIEF 

_______  _________  ________  PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X ___  ___ _X____  _____X___  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.



      ____________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)                                         AR20080007632



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ABCMR Record of Proceedings (cont)                                         AR20080007632



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