IN THE CASE OF:	  

		BOARD DATE:	  23 June 2009

		DOCKET NUMBER:  AR20090000052 


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, correction of his record to show that the separation authority and narrative reason of his second medical discharge were erroneous.

2.  The applicant states, in effect, that he should not have been medically discharged due to his service-connected illnesses.  He also states that a review of his administrative records will show that he was assigned a reentry code of 3 at the time of his initial medical discharge.  The applicant further states that, at a later date, he requested a medical waiver in order to reenter the Army and it was granted after he was found physically fit for military service.  The applicant contends that since he was granted a waiver for his existing medical condition, he should not have been medically discharged a second time for the exact same reason.  The applicant concludes that he desires to have his medical records cleared so he may reenter military service as it is evident that he is physically fit.

3.  The applicant provides a self-authored statement, a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), two DA Forms 199 (Physical Evaluation Board (PEB) Proceedings), two requests for medical waivers, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), and 27 pages extracted from his medical record in support of his request.  





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 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 he initially enlisted in the Regular Army (RA) on 10 February 1999.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 77F (Petroleum Supply Specialist).  The highest rank/grade he attained during this period of active duty service was private first class (PFC)/pay grade E-3.

3.  An Optional Form 275 (Medical Record Report), dated 3 March 2001, shows the applicant's medical condition was evaluated by an MEB conducted at the William Beaumont Army Medical Center located in El Paso, Texas.

	a.  The examining physician indicated the applicant's chief complaint was sternal chest pain primarily with activity.  The physician noted that this injury was sustained during basic training when the applicant sustained blunt trauma to his anterior chest.  The applicant indicated that he had persistent problems with pain in his chest with all types of activity to include push-ups, deep breathing, lying on his back, or lifting.  The physician noted that the applicant's MOS required lifting up to 100 pounds and that he had not been able to work in his MOS due to the persistent pain.  The physician continued that the applicant had failed conservative treatment to include activity modification, profiles, steroidal anti-inflammatory drugs, and physical therapy.  The applicant had extensive medical testing and evaluation to determine a root cause and all results were negative.  An orthopedic examination revealed the applicant had no swelling of the anterior sterna area although he indicated he had soreness in the area.  The physician noted that the applicant was unable to perform physical training and unable to perform the duties required of his MOS at the time.

	b.  The physician also indicated that the applicant was still recovering from an injury and subsequent surgery to his right forearm and wrist.  Examination of the area revealed the applicant had a healed volar incision, limited range of motion in 
his wrist, and 45 degrees of extension and flexion.  An X-ray of his wrist showed a fracture which extended through the radiostyloid into the radiocarpal joint, volar displacement of the distal fracture fragment, and an associated fracture through the ulnostyloid with minimal displacement.

	c.  The physician rendered the diagnoses listed below in joint armed forces terminology and preceded by the pertinent diagnostic codes:

		(1)  Chronic intractable costochondritis of the anterior sternum, 733.6;

		(2)  Status post fracture of right distal radius, 813.42; and

		(3)  Status post open reduction and internal fixation, right distal radius.

	d.  The physician noted the applicant was on a permanent profile restricting push-ups and lifting more than 10 pounds.

	e.  The physician concluded that the applicant was unable to satisfactorily perform the duties required of a Soldier of his rank and station and did not meet retention standards per Army Regulation 40-501 (Standards of Medical Fitness) and recommended that his case be referred to a PEB for further evaluation and recommendation for disposition.

4.  A DA Form 3947, initiated on 6 March 2001, was rendered to summarize the proceedings and findings of the MEB.  This form shows the applicant's significant medical conditions were chronic intractable costochondritis of the anterior sternum and status post fracture of right distal radius.  This form also shows that both conditions were incurred while entitled to base pay and that they did not exist prior to service.  This form further shows the case was referred to a PEB and that the applicant did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings and recommendation of the board were approved on 6 March 2001 and the applicant agreed with them on 9 March 2001.

5.  A DA Form 199, dated 26 March 2001, shows that an informal PEB convened at Fort Lewis, Washington, on 26 March 2001.  The PEB found the applicant unfit for continued service due to his chronic intractable costochondritis of the anterior sternum which did not meet standards for retention on active duty and prevented satisfactory performance of duty in his grade and MOS.  The form further shows the PEB recommended a disability percentage of 10 percent and separation with severance pay.  On 3 April 2001, the applicant acknowledged that he had been advised of the findings and recommendations of the PEB, had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto, and concurred with the findings and recommendations of the 
informal PEB and waived his right to a formal hearing.  The PEB noted that the MEB diagnosis pertaining to the applicant's status post fracture of right distal radius had been considered and found to be not unfitting and therefore not ratable.

6.  The applicant's DD Form 214 for the period ending 13 May 2001 shows he was honorably discharged due to physical disability with severance pay under the provisions of paragraph 4-24b(3) of Army Regulation 635-40.  This form also shows the applicant was paid disability severance pay in the amount of $5,228.40.

7.  A document entitled "Request for Waiver" shows that on 13 August 2003, the commander of the 1st Squadron of the 221st Cavalry Regiment requested an enlistment waiver for a medical disqualification on behalf of the applicant in order to allow him to enlist in the Nevada Army National Guard (NVARNG).  The disqualification indicated was "Hardware in place/SPD (Separation Program Designator) Code."  The commander's recommendation read as follows:  "Recommend approval.  Applicant has no limitations in performing any duties.  Applicant is prior service and MOS qualified.  He is employed as a fueler as a civilian and has had no problems since surgery.  Able to do any given task.  Recommend approval."

8.  Nevada Military Department, Office of The Adjutant General, Carson City, Nevada, memorandum, dated 19 August 2003, Subject:  Request for Medical Waiver, shows a Recruiting and Retention Manager requested an enlistment waiver for the applicant.  The Recruiting and Retention Manager noted the applicant had been discharged from the U.S. Army in May 2001 by reason of "Disability, Severance Pay" and given a reentry code of 3.  He continued that this discharge was the result of an injury to his right wrist.  The Recruiting and Retention Manager further stated the applicant desired to enlist in the NVARNG and had undergone a physical on 7 August 2003.  The Military Entrance Processing Station (MEPS) doctor disqualified the applicant for "hardware in place -- right radius," but recommended a waiver.  On 19 September 2003, the State Surgeon of the NVARNG recommended approval of the waiver.

9.  Departments of the Army and the Air Force, National Guard Bureau (NGB), Arlington, Virginia, memorandum, dated 19 September 2003, Subject:  Request for Waiver Request - Enlistment Waiver, shows the medical waiver was approved for the MEPS disqualifying condition by a designated signature authority, the Chief Surgeon of the ARNG on behalf of the chief of the NGB.

10.  A DA Form 199, dated 28 June 2005, shows that an informal PEB convened at Fort Lewis, Washington, on 28 June 2005.  The PEB found the applicant unfit for continued service due to two medical conditions:

	a.  The primary disabling medical condition shown was right inguinal pain, status post hernia repair following mobilization.  This condition was rated analogous to ilioinguinal neuritis.  The PEB noted that the applicant's profile restrictions for this condition prevented his full performance of common Soldier tasks.

	b.  The secondary disabling medical condition shown was right radial fracture, status post open reduction and internal fixation with residual pain preventing full duty performance.  This condition was rated for slight, intermittent pain.  The PEB noted that this condition existed prior to mobilization and had not been permanently service-aggravated.

11.  The DA Form 199, dated 28 June 2005, also shows the PEB determined the applicant's functional limitations in maintaining the appropriate level of right wrist function and adaptability, caused by the physical limitations listed above, made him medically unfit to perform the duties required of a Soldier of his rank and primary specialty.  The form further shows the PEB recommended a disability percentage of zero (0) percent and separation with severance pay.  On 11 July 2005, the applicant acknowledged that he had been advised of the findings and recommendations of the PEB, had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto, and concurred with the findings and recommendations of the informal PEB and waived his right to a formal hearing.

12.  The applicant's DD Form 214 for the period ending 22 July 2005 shows he was honorably discharged due to physical disability with severance pay under the provisions of paragraph 4-24b(3) of Army Regulation 635-40.  This form also shows the applicant was paid disability severance pay in the amount of $10,686.00.

13.  During the process of attempting to reenter the NVARNG in 2008, the applicant rendered an undated self-authored statement addressed "To whom it may concern."  The applicant stated, in effect, that he was medically discharged from active duty in 2001 for a broken right radius which required a metal plate to be surgically attached.  He enlisted in the NVARNG in 2003 with a medical waiver.  The applicant continued that in 2004, his unit was activated for a stateside deployment to Fort Irwin, California.  During the pre-deployment physical a doctor found that he had a hernia on the right side above his groin 
area.  The hernia was repaired and the applicant rejoined his unit at Fort Irwin after a month of recovery.  After going on sick call for slight discomfort, he was placed on a permanent profile which limited his job functions to driving a bus for the remainder of time he was at Fort Irwin.  The applicant adds that he was medically discharged for a second time in July of 2005 with a reentry code of 3.  The applicant concludes that after three years of recovery, he feels as healthy as he ever was and desires to be considered for reenlistment.  The applicant's application was reviewed and he was approved to undergo a physical examination on 27 May 2008.

14.  The applicant underwent a physical examination during the period of 13 June 2008 through 17 June 2008.  

15.  Departments of the Army and the Air Force, NGB, Arlington, Virginia, memorandum, dated 20 June 2008, Subject:  Request for Accession Waiver Enlistment, shows the medical waiver was disapproved for history of wrist surgery, retained hardware, and two medical discharges by a designated signature authority of the Chief Surgeon of the ARNG.

16.  Army Regulation 635-40 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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of 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 their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

17.  Title 10, U.S. Code, chapter 61,  provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The United States Army Physical Disability Agency (USAPDA), under the operational control of the Commander, United States Army Human Resources Command, Alexandria, VA, is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  Soldiers enter the PDES four ways:  

	a.  Referred by an MEB.  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40; 

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to a MEB/PEB is one of the actions the MMRB Convening Authority may direct; 

	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in an MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referred as a result of Headquarters, Department of the Army action.  The Commander, United States Army Human Resources Command, upon recommendation of the Surgeon General, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above.  United States Army Human Resources Command also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier to a different MOS.

18.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.  The PEB initially conducts an informal adjudication. 
This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the Physical Evaluation Board Liaison Officer for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the USAPDA to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

19.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE Codes, including RA RE Codes.  RE Code 1 applies to persons completing their term of active service who are considered fully qualified to reenter the U.S. Army.  RE Code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his record should be corrected to show that the separation authority and narrative reason of his second medical discharge were erroneous were carefully considered and determined to lack merit.

2.  Evidence shows the applicant's first medical discharge was based upon the PEB finding him unfit for continued service due to his chronic intractable costochondritis of the anterior sternum which did not meet standards for retention on active duty and prevented satisfactory performance of duty in his grade and MOS.  Evidence also shows that the PEB noted that the MEB diagnosis pertaining to the applicant's status post fracture of right distal radius had been considered and found to be not unfitting and therefore not ratable.  Therefore, the medical condition of his wrist was not the catalyst for his initial medical discharge.

3.  Evidence shows the applicant's second medical discharge was based upon the PEB finding him unfit for continued service due to two medical conditions:

	a.  the primary disabling medical condition shown was right inguinal pain, status post hernia repair following mobilization; and

	b.  the secondary disabling medical condition shown was right radial fracture, status post open reduction and internal fixation with residual pain preventing full duty performance.

4.  Neither of the unfitting conditions which were the catalysts for the applicant's second medical discharge were found to be unfitting prior to his initial medical discharge.




5.  Evidence shows that during the process of attempting to reenter the NVARNG in 2003, a medical waiver was requested for his broken right radius which required a metal plate to be surgically attached.  There was no mention of the actual medical condition for which he was previously medically discharged.  The applicant was granted a medical waiver for reentry.

6.  Evidence shows that during the process of attempting to reenter the NVARNG in 2008, the applicant rendered an undated statement addressed "To whom it may concern."  In this statement, the applicant falsely stated that he was medically discharged from active duty in 2001 for a broken right radius which required a metal plate to be surgically attached and did not mention the actual medical condition for which he was previously medically discharged at all.

7.  Evidence shows the applicant accepted a combined total of $15,914.40 in disability severance pay.

8.  The evidence of record confirms the applicant was properly processed through the Army's PDES for both periods of service.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the PDES process.  It further shows that an informal PEB ultimately determined the applicant was unfit for service.  The applicant concurred with the findings and recommendations of the informal PEB and waived his right to a formal hearing.

9.  In view of the foregoing, the appropriate separation authority and narrative reason were annotated on each of the applicant's DD Forms 214 at the times of his discharges.  Each of the applicant's DD Forms 214 was properly constituted and in the absence of compelling information to the contrary, there is no basis for changing either of his DD Forms 214 in this case.

10.  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.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.







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.



      __________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)                                         AR20090000052



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ABCMR Record of Proceedings (cont)                                         AR20090000052



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