IN THE CASE OF:	  

		BOARD DATE:	        5 March 2009

		DOCKET NUMBER:  AR20080009896 


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, in effect, the applicant’s records be corrected by rescinding his discharge from the Illinois Army National Guard (ILARNG), by paying him all back pay and allowances from the date of discharge to present, and by referring him to the Physical Disability Evaluation System (PDES) for evaluation by a Medical Evaluation Board (MEB).

2.  Counsel states at the time of his separation the applicant had two medical conditions – ruptured spinal discs and nonradicular pain secondary to degenerative disc or joint disease – which disqualified him for retention in the ARNG.  By regulation, he should have been referred to the PDES for an MEB.  The ILARNG State Surgeon, on 14 March 2006, issued the applicant a permanent physical profile of L4, found him unfit for retention, and stated he required an MEB/PEB (PEB is Physical Evaluation Board).

3.  Counsel further states the applicant’s injuries were determined to have been incurred in Iraq while he was entitled to basic pay.  A DA Form 2173 (Statement of Medical Examination and Duty Status), also known as a line-of-duty (LOD) determination, found his lower back pain occurred in the line of duty when he suddenly turned while sitting in a chair.  Because he was summarily discharged, the applicant was never afforded the opportunity to present his case to an MEB/PEB.

4.  The counsel provides an ARNG Retirement Points History Statement, dated 22 March 2006; a DD Form 214 (Certificate of Release or Discharge from Active Duty), with the period ending 7 June 2004; a DA Form 2173, dated 22 April 2004; a DA Form 3349 (Physical Profile), dated 19 March 2006; a memorandum from the ILARNG, dated 22 March 2006; and ILARNG Orders, dated 28 September 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ILARNG on 15 June 2001.  On 7 February 2003, he was ordered to active duty and deployed to Iraq.

2.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated on an unknown day in November 2003, shows the applicant was examined in Iraq for dermatitis and a follow-up for low back pain of 6 months duration.  The applicant told medical personnel that while in Kuwait some 7 months prior, he “re-injured” his back in the L5-S1 vertebral area and he has pain while running, walking, doing push-ups, and wearing a flak vest.  He was given a 14-day profile against doing sit-ups and push-ups.

3.  A SF 513 (Consultation Sheet), dated 1 December 2003, shows the applicant complained of chronic low back pain for several years (emphasis added).  Now the pain was present when he wears a flak vest or Kevlar (helmet), stands in a gun turret, or performs prolonged sitting.  The consultation noted the applicant received some relief from the drugs Indocin and Tylenol.  He also experienced improvement through previous chiropractic treatment.  He was prescribed Valium along with Indocin and Tylenol, and he was given stretching exercises.

4.  On 18 April 2004, the applicant departed Iraq. 

5.  A DA Form 2173, dated 22 April 2004, shows in October 2003 he injured his lower back by suddenly turning while sitting in a chair.  The applicant’s injury was determined in the line of duty.

6.  On 7 June 2004, the applicant was released from active duty.

7.  A DA Form 3349, dated 19 March 2006, shows the applicant was issued a permanent L4 (serious defect in the lower extremities) profile by the State Surgeon for disc protrusion and chronic back pain.  The State Surgeon further noted the applicant “Needs MEB/PEB” in order to determine retainability.




8.  By memorandum from the ILARNG Military Personnel Officer, dated 22 March 2006, the applicant was notified that the “State Surgeon found you unfit for retention….”  He was informed that he had “the right to appeal this finding [of unfitness] to the appropriate Army Physical Evaluation Board (PEB)” in accordance with pertinent regulations.  He was further informed that, should he elect to appeal the PEB, he would receive an informal appeal.  If the informal PEB were to find him unfit, he could then request a formal PEB.  He was given 60 days to acknowledge notification and appeal should he choose to do so.  There is no indication he acknowledged notification or appealed.

9.  On 28 September 2006, the applicant was discharged from the ARNG and as a Reserve of the Army in the rank and grade of Sergeant/E-5 due to being medically unfit for retention.  He had completed 5 years, 3 months, and 14 days of qualifying service.

10.  In the processing of this case an advisory opinion was obtained from the Acting Chief, Personnel Division, Departments of the Army and Air Force National Guard Bureau.  The decision states, in effect, that it is the responsibility of the PDES, through the MEB/PEB process, to determine a Soldier’s fitness to serve.  The advisory opinion recommends the applicant’s discharge be voided, that he be reinstated in the ILARNG, and that he be brought on active duty and referred to an MEB.

11.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He concurred with the opinion.

12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or the proximate cause was incurred while performing active duty or inactive duty training.

13.  Army Regulation 635-40 states, in pertinent part, that when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of his or her grade or rank because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501.

14.  Army Regulation 40-501, in chapter 7 (physical profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of a Soldier and is used to assist commanders and personnel officers in their determination of what duty assignments the Soldier 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: P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, 
E-eyes, and S-psychiatric (PULHES).  Numerical designator 1 under all factors indicates that a Soldier 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 a Soldier has a medical condition or physical defect which requires certain restrictions in assignment within which the Soldier is physically capable of performing military duty.  The Soldier should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that a Soldier has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the Soldier is unfit because of physical disability as defined in Army Regulation 635-40.

15.  Army Regulation 600-8-1 (Army Casualty Program), in pertinent part, provides that a line of duty investigation must be conducted in all cases of injury not as a result of enemy action.  It also provides it is essential to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an investigation may or may not be required to make this determination.  It provides that any physical condition having its inception in line of duty during one period of service or authorized training in any of the Armed Forces which recurs or is aggravated during later service or authorized training, regardless of the time between, should be in line of duty.  

DISCUSSION AND CONCLUSIONS:

1.  In November 2003, when the applicant was on active duty, he was treated for a complaint of lower back pain.  He was treated in December 2003, while he was still on active duty for a complaint of lower back pain.

2.  The applicant's DA Form 2173, dated 22 April 2004, indicates his back injury occurred in the line of duty.  His DA Form 3349, dated 19 March 2006, shows he was issued a permanent L4 profile by the State Surgeon and that the applicant required a MEB/PEB to determine retainability.

3.  The ILARNG Military Personnel Officer erroneously informed the applicant by memorandum that he was found to be unfit by the State Surgeon.  Army Regulation 635-40, in paragraph 4-10, provides that a MEB is convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A 


decision is then made as to the Soldier’s medical qualification for retention based upon the criteria in Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the Soldier is then referred to a PEB.  This was not done in the applicant’s case.

4.  The applicant should be afforded the opportunity to have his medical fitness determined by an MEB/PEB.

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 offering him the opportunity to undergo an MEB to determine his fitness for retention in the Army:

	a.  by directing the Office of The Surgeon General to contact him and arrange, via appropriate medical facilities, an MEB; and

	b.  if appropriate, by referral to an informal PEB.

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the MEB and, if necessary, the PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  Subsequent to a final determination by the Office of The Surgeon General concerning his fitness for retention in the Army (as relates to a condition or conditions incurred while on active duty), the individual concerned may reapply to this Board concerning any other issues, as appropriate.
5.  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 reinstating him in an active status with the ILARNG and Reserve of the Army and receiving back pay from the date of discharge.   



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      _______ _   _______   ___
       	   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)                                         AR20080009896



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ABCMR Record of Proceedings (cont)                                         AR20080009896



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