IN THE CASE OF:	  

		BOARD DATE:	        25 November 2008

		DOCKET NUMBER:  AR20080012805 


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 he be placed on active duty in the Medical Retention Processing (MPR) program.

2.  The applicant states, in effect, that the effective date of his release from active duty must be corrected to the date the medical authority would have released him from medical treatment.  He contends that he was improperly released from active duty upon the return of his unit from mobilization.  He states that upon arrival to the demobilization station he was under medical treatment for injuries/medical conditions (constant back pain, left elbow pain, left knee pain, skin irritations, and possible hernia) incurred in the theater of war.  He indicates that his unit did not follow the applicable regulations in that they processed his separation from active duty even though medical authorities recommended his retention for further medical treatment.  He points out that this situation caused undue financial hardship and that he assumed the expenses of medical treatment not provided by the military system.  As a consequence of the whole situation, he lost his civilian job as a military technician with the Puerto Rico Army National Guard.  He was found to be not physically fit to perform his military duty when he returned to his unit of assignment in the Army National Guard.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), numerous orders, two electronic mail (email) messages, service medical records, three witness statements, and service personnel records.


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.  Having prior service, the applicant accepted a commission in the Army National Guard in 1978.  On 10 February 2003, he was ordered to active duty in the rank of lieutenant colonel, Quartermaster Corps, in support of Operation Enduring Freedom.  He arrived in Iraq on 1 May 2003.

3.  On 27 February 2004, the applicant was evaluated for groin (inguinal) pain.  No inguinal hernia was discovered on his right or left and the physician stated, "doubt hernia at this time" and that the applicant should follow up with surgery upon return to the United States if the problem persisted.

4.  The applicant departed Iraq for the United States on 23 April 2004.

5.  On 28 April 2004, the applicant underwent a medical assessment for separation purposes.  On his DA Form 2697 (Report of Medical Assessment) the applicant reported that since his last physical examination by the military on 1 February 2001, his overall health was "worse" and that he had continuous back pain, left elbow pain and left knee pain, neck/skin irritation, and a possible hernia. He indicated that he had not had any illnesses or injuries that caused him to miss duty for longer than 3 days; and that he did not have any conditions which limited his ability to work in his primary specialty or required geographic or assignment limitations.  The health care provider commented that the applicant had a history of low back pain.  The applicant was referred to a primary care physician for further evaluation.

6.  On 23 May 2004, the applicant was released from active duty in the rank of lieutenant colonel.

7.  The applicant provided a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 2 June 2004, which shows that he was evaluated on 1 June 2004 for a bulging disk L5-S1.  Item 11 (Medical Opinion) on this form indicates that the injury was incurred in line of duty (LOD).  Item 30 (Details of Accident - Remarks) on this form states, "At Mobilization station, during medical assessment, the doctor recommended a deep evaluation on bulding [sic] disk 
L5-S1."

8.  The applicant provided a second DA Form 2173, dated 2 June 2004, which shows that he was evaluated on 1 June 2004 for bilateral inguinal hernias and that he would be having surgery on 3 June 2004.  Item 11 on this form indicates that the injury was incurred in LOD.  Item 30 on this form states, "At Mobilization station, during medical assessment, the doctor recommended a deep evaluation on bilateral inguinal hernias."

9.  On 22 June 2004, the applicant was issued temporary profile ratings of 3 under physical capacity (P) and lower extremities (L) for bilateral inguinal hernia and low back pain.

10.  The applicant provided an email, dated 12 July 2004, from the Chief, Medical Support Services Section, Human Resources Command (HRC), Alexandria, Virginia, which states that he called that office and inquired about his orders.  That office did not have his request on file.

11.  The applicant provided an email, dated 19 July 2004, from the Chief, Medical Support Services Section, which states that it was her understanding that his mobilization orders were extended for pay purposes and that if he was still having medical issues when he is released from active duty he should contact a Master Sergeant P--- to be placed in the MRP program.  She states that the MRP is very new (3 months) and that HRC was working to keep those Soldiers with medical issues on the military installation to get their medical conditions fixed or Medical Evaluation Boards/Physical Evaluation Boards completed.  She indicates that they are still trying to get the word to the installations and transition centers not to release Soldiers who are still not medically cleared and that most installations were working with them and the Soldiers to put them back on orders for transfer to the MRP providing they need it.  She also informed the applicant to call her if he had any further issues or questions.

12.  There is no evidence of record which shows the applicant made any further contact with the Chief, Medical Support Services Section.

13.  The applicant provided a DA Form 2173, dated 17 August 2005, which shows that he was treated on 1 June 2004 for left knee pain, that he had an MRI done on 30 March 2005 which showed a tear to the posterior horn of the medical meniscus with joint effusion, and that he had surgery on 12 May 2005.  Item 11 on this form indicates that the injury was incurred in LOD.  Item 30 on this form states, "At Mobilization station, during medical assessment, the doctor recommended a deep evaluation on left knee injury."

14.  On 4 December 2005, a Fit for Duty Determination Board determined that the applicant was qualified to retire by reason of medical conditions and a permanent profile rating of 4 was given under "L" with assignment limitations of unfit for service.  The applicant was found to be unfit for retention in the Puerto Rico Army National Guard.

15.  On 12 December 2005, the applicant was honorably discharged from the Puerto Rico Army National Guard under the provisions of National Guard Regulation 635-100, paragraph 5a(14).

16.  There is no evidence of record which shows the applicant submitted an application for MRP.

17.  The Office of the Army Deputy Chief of Staff, G-1, Warrior Transition Unit Consolidated Guidance (Administrative), states the MRP program applies to outpatient and inpatient Soldiers currently on active duty mobilized under Title 10, U.S. Code, section 12302, partial mobilization orders for operations in support of the Global War on Terrorism.  The MRP2 program applies to Soldiers previously released from active duty while mobilized under Title 10, U.S. Code, section 12302, partial mobilization orders for operations in support of the Global War on Terrorism.

18.  The MPR2 program is designed to address the recall of Reserve Component Soldiers with documented unresolved mobilization-connected medical conditions. A Soldier is eligible for the MRP2 program when, in part, a completed application is submitted through the current chain of command.  The Reserve Component Soldier has 6 months from date of release from active duty to submit the application.

DISCUSSION AND CONCLUSIONS:

1.  Soldiers eligible for MRP2 status are those Reserve Component Soldiers already released from active duty with documented unresolved mobilization-connected medical conditions.  One of the eligibility requirements for entry into this program is to submit a completed application through the Soldier's chain of command.

2.  Although the applicant contends that he was under medical treatment for injuries/medical conditions (constant back pain, left elbow pain, left knee pain, skin irritations, and possible hernia) he incurred in Iraq, medical evidence of record shows that on 27 February 2004 he was not diagnosed with a hernia and the physician stated, "Doubt hernia at this time."  On 28 April 2004, the health care provider that completed his Report of Medical Assessment noted that he had a history of low back pain (i.e. existed prior to his deployment to Iraq).

3.  The applicant was released from active duty on 23 May 2004, and an email, dated 19 July 2004, from the Chief, Medical Support Services Section, indicates that HRC was attempting to work with the applicant to place him on MRP.  The applicant was instructed to call HRC's point of contact if he had any further issues or questions.  However, there is no evidence of record which shows the applicant submitted an application for MRP2 or further contacted the HRC point of contact.

4.  There is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT 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.



      ____________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)                                         AR20080012805



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ABCMR Record of Proceedings (cont)                                         AR20080012805



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