IN THE CASE OF:	   

		BOARD DATE:	        12 May 2009

		DOCKET NUMBER:  AR20090000216 


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 military records to show that he was retired due to physical disability or that he received separation pay.

2.  The applicant states, in effect, that he was injured while on active duty.  He was discharged from the Army National Guard within 2 weeks of being released from active duty due to medical unfitness that resulted from his injury while on active duty.  He contends that he did not receive a medical evaluation board (MEBD) or a physical evaluation board (PEB) prior to release from active duty.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a memorandum from the Tennessee Army National Guard, dated 24 April 2007, with enclosures; Department of Veterans Affairs (VA) Rating Decisions, dated in 2008 and 2009; Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter); Army National Guard Current Annual Statement; service medical records; VA medical records; and extracts of various personnel records.

CONSIDERATION OF EVIDENCE:

1.  On 29 March 2007, the applicant, a member of the Army National Guard, was released from active duty.  His DD Form 214 shows that at the time he was a staff sergeant, pay grade E-6.  He had completed 1 year, 11 months, and 15 days of creditable active duty service during this period and had previously completed 13 years, 5 months, and 9 days of inactive service.  His DD Form 214 states that the narrative reason for his discharge was "Miscellaneous/General Reasons" and the authority for this discharge was "to be determined."

2.  On 24 April 2007, the Deputy Chief of Staff, Personnel, Tennessee Army National Guard, informed the applicant by memorandum that he had failed to meet the medical retention standards for continued service in the Tennessee Army National Guard.  He was involuntarily separated and issued a notification letter stating that he was eligible for retired pay at age 60 based on 15 years of service.  Effective 21 June 2007, he was transferred to the Retired Reserve.

3.  The applicant's line of duty determination is not available for review.

4.  The VA Rating Decision, dated 22 March 2008, states that records reflect the applicant is a veteran of the Gulf War Era.  He served in the United States Air Force from September 1988 to March 1989 and from January 1991 to March 1991.  He served in the United States Army from April 2005 to March 2007.  He filed a disability claim in February 2007.  He was granted a combined disability rating of 70 percent for a major depressive disorder (post-traumatic stress disorder), coronary artery disease, and degenerative disc disease.  All of these conditions were found to be service connected and Gulf War incurred.

5.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau.  It recommended, after consultation with the Chief Surgeon's Division Office, that the applicant be reinstated and scheduled for evaluation by an MEBD and a PEB.  It based this recommendation on the supporting medical documentation and a favorable line of duty investigation.

6.  On 20 April 2009, the applicant concurred with the advisory opinion.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that the medical treatment facility commander will provide a thorough and prompt evaluation when a Soldier's medical condition becomes questionable in respect to physical ability to perform duty; will appoint a PEB liaison officer to counsel Soldiers undergoing physical disability processing; and will ensure MEBD proceedings referred to a PEB are complete, accurate, and fully documented.

8.  Army Regulation 40-501 (Standards of Medical Fitness) provides, in pertinent part, that Soldiers with medical conditions that do not meet the required standards will be evaluated by an MEBD and PEB.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was not provided an MEBD/PEB prior to his release from active duty.

2.  The applicant was evaluated by the VA to be 70-percent disabled.  It appears that this evaluation was based on his medical condition that was incurred during a period of active duty during the Gulf War.

3.  Based on the advice and recommendation provided in the advisory opinion, it would be equitable to provide the applicant the opportunity to undergo an MEBD and PEB.  The applicant should understand that if he is found medically unfit for retention but not to a sufficient degree to warrant a disability retirement, he may lose his eligibility for retired pay at age 60 that he currently has.

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:

	a.  directing the Office of The Surgeon General to contact him and arrange, via appropriate medical facilities, an MEBD; 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 MEBD 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.  In the event a PEB finds that the individual concerned has a medically unfitting condition and it is compensable, action will be taken to correct his records to show he was appropriately separated effective 21 June 2007.  

5.  However, if compensation is not sufficient to warrant a permanent disability retirement, the applicant will be given the option of accepting disability severance pay or retaining his eligibility to receive retired pay at age 60.  Further, if a determination is made that he should be placed on the Temporary Disability Retired List (TDRL), he will also be briefed concerning the possible consequences of losing his entitlement to retired pay at age 60 if a subsequent TDRL evaluation finds that he is fit for duty or unfit at a rate less than would warrant permanent disability retirement.

6.  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 medical retirement or separation pay until such time as a determination is made by the MEBD/PEB.



      ___________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)                                         AR20090000216



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ABCMR Record of Proceedings (cont)                                         AR20090000216



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