IN THE CASE OF:	  

		BOARD DATE:	       3 November 2009

		DOCKET NUMBER:  AR20090009986 


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 correction of the narrative reason for his separation to show he underwent a medical evaluation board (MEB).  In effect, he requests correction of his records to show he was medically discharged for disability.

2.  The applicant states that since his right wrist injury while serving in the Puerto Rico Army National Guard (PRARNG), his life has changed drastically, financially, mentally, and emotionally.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  A copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 30 June 1983. 

	b.  A copy of his DD Form 214 (Report of Separation from Active Duty), dated 16 February 1978. 

	c.  State of New Jersey, Department of Labor and Workforce Development, Division of Disability Services, Newark, NJ, letter, dated 18 April 2008, regarding his disability claim.

	d.  State of New Jersey, Division of Family Development, Examination Report, dated 1 April 2008. 

	e.  State of New Jersey Judgment of Conviction, dated 17 November 2000.
	f.  Medication Teaching Form, Jersey City Medical Center, dated on miscellaneous dates.

	g.  A copy of a letter, dated 25 August 1998, from the Army Review Boards Agency, dated 25 August 1998.

	h.  A copy of a letter, dated 30 March 1998, from the National Guard Bureau.

	i.  A copy of a Department of Veterans Affairs (VA) Form 10-9034-3 (Medical Record Report), dated 30 March 1995.

	j.  A copy of a Standard Form (SF) 660 (Chronological Record of Medical Care), dated 24 March 1982.

	k.  A copy of a memorandum, dated 8 March 1982, subject:  Request for Medical Evaluation.

	l.  Copies of DA Forms 3349 (Physical Profile Board Proceedings), dated 29 March 1982, 11 April 1981, and 20 September 1980.

	m.  Copies of various medical documents, clinical records, medical consultations, radiographic reports, and medical examinations, dated on miscellaneous dates throughout his ARNG service.

	n.  A copy of DA Form 2173 (Statement of Medical Examination and Duty Status), dated 3 August 1979.

	o.  A Line of Duty Investigation Officer Appointment Memorandum, dated 1 June 1979.

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 military records are not available for review.  An extensive search was performed to locate his records without success.  It is believed that the applicant's records were lost or destroyed.  However, the applicant submitted sufficient documents in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's reconstructed records show he was born on 24 December 1954 and enlisted in the PRARNG for a period of 6 years on 1 July 1977.  He subsequently entered active duty for training (ADT) on 2 October 1977, he completed basic combat and advanced individual training, and he was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).  He was honorably released from ADT to the control of his ARNG unit on 16 February 1978.  He was assigned to Headquarters and Headquarters Battery, 2nd Battalion, 162nd Field Artillery, PRARNG.

4.  On 5 June 1979, while on active duty for training (27 May 1979 to 9 June 1979), performing special duties of assembling an officer tent in a field environment at Fort Pickett, VA, the applicant tried to hold up one of the tent poles, causing pain to his right hand.  He was admitted to Fort Pickett Dispensary and prescribed pain medication.

5.  On 18 March 1980, the applicant underwent a physical examination at the U.S. Naval Hospital, PR.  The examination revealed tenderness of the volar aspect of the wrist and a general restriction of wrist movement with loss of 10-15 degrees dorsiflexion and 10-15 degrees volar flexion.  He was diagnosed as having a chip fracture of the lunate with chronic ligamentus pain in the wrist.  The attending physician recommended the applicant be referred to the Army Physical Evaluation Board for Departmental review.  

6.  On 20 September 1980, subsequent to a review of the applicant’s health records, the applicant was issued a temporary physical profile that restricted any assignments requiring the use of his right hand.  However, the physical profile shows the applicant was returned to his unit for duty and that he was qualified for retention.

7.  On 11 April 1981, subsequent to another review of the applicant’s health records, the applicant was issued another temporary physical profile that indicated that he had pain in his right hand.  Again, the physical profile further shows he was returned to his unit for duty and that he was qualified for retention. 



8.  On 8 March 1982, by memorandum addressed to the Adjutant General (TAG), PRARNG, the applicant’s immediate commander requested the applicant’s referral to an MEB to determine his qualification for retention in the ARNG.  

9.  On 24 March 1982, the applicant underwent a physical examination at Fort Buchanan, PR.  The attending physician indicated that the applicant suffered from chronic pain to his wrist and recommended that the applicant be awarded a permanent profile.  However, the physician indicated that the applicant was considered fit for duty with limitations of his permanent profile. 

10.  On 29 March 1982, a Physical Profile Board reviewed the applicant’s records and determined that he had the physical defects of chronic strain to the right wrist due to an old fracture in the right lunate (bone in the wrist).  The profiling officer indicated that the applicant should not be assigned to duties/assignments requiring the handling of heavy materials including weapons - except for authorized personal organizational weapons – or be involved in overload work, pushups, or pull-ups.  

11.  On 30 April 1982, by endorsement, the Commander, U.S. Army Health Clinic, Fort Buchanan, PR, forwarded the applicant’s health records to TAG, PRARNG, for information and/or action.  He also forwarded a copy of the applicant’s profile for inclusion in his official records.  

12.  On 5 May 1982, after consideration of the applicant’s physical profile, TAG, PRARNG, directed the applicant be reclassified into a compatible MOS commensurate with his physical profile as provided in applicable regulations.

13.  The applicant’s reconstructed records show he was honorably discharged from the PRARNG on 30 June 1983 by reason of what appears to be the expiration of his term of service (ETS).  The NGB Form 22 he was issued shows he completed 6 years of ARNG service.

14.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  


15.  Chapter 8 of Army Regulation 635-40 outlines the rules for processing through the disability system for Soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training.  Paragraph 8-2 states that Soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

16.  Paragraph 8-6 states that when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation.  Paragraph 8-6b states, in effect, that the medical treatment facility will forward the MEB to the Soldier’s unit commander for disposition under applicable regulations.

17.  Physical evaluation boards (PEBs) are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

18.  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 office, rank, grade or rating because of disability incurred while entitled to basic pay.

19.  Department of Defense Instruction 1332.38 implements policy and prescribes procedures for retiring or separating service members because of physical disability.  This instruction provides, in pertinent part, that a service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his office, grade, rank, or duties, to include duties during a remaining period of Reserve obligation. All relevant evidence will be considered in assessing service member fitness.  To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness.

20.  If the evidence establishes that the service member adequately performed his duties until the time the service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.  That 
instruction goes on to say that except for service members previously determined unfit and continued in a permanent limited duty status, service members who are pending retirement at the time they are referred for physical disability evaluation enter the disability evaluation system under a rebuttal presumption that they are physically fit.  The disability evaluation system compensates disabilities when they cause or contribute to career termination.  Continued performance of duty until a service member is approved for length of service retirement creates a rebuttal presumption that a service member’s medical conditions have not caused career termination.

21.  Findings about fitness or unfitness shall be made on the basis of the preponderance of evidence.  Thus if a preponderance of the evidence indicates unfitness, a finding to that effect will be made.  If, on the other hand, a preponderance of the evidence indicates fitness, the service member may not be separated or retired by reason of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant sustained a wrist injury while on ADT.  He was initially treated with medications and subsequently underwent several physical examinations that determined he was fit for duty with limitations. Furthermore, the medical documentation was forwarded to the applicant's commander to make a determination whether his illness/injury affected his ability to perform the duties required of his rank and specialty.  His commander recommended his referral to an MEB to determine his qualification for retention in the ARNG.

2.  The applicant subsequently underwent another physical examination at Fort Buchanan, PR.  The attending physician indicated that the applicant suffered from chronic pain to his wrist and recommended that the applicant be awarded a permanent profile.  However, the physician indicated that the applicant was considered fit for duty with limitations of his permanent profile. 

3.  A Physical Profile Board reviewed the applicant’s records and determined that he had chronic strain to the right wrist.  Accordingly, he was issued a permanent profile that limited his assignments.  His health records and physical profile were then sent to TAG, PRARNG, who, after consideration of the applicant’s physical profile, directed the applicant be reclassified to a compatible MOS commensurate with his physical profile.   However, there is no indication if and when the applicant was reclassified.  He was honorably discharged by reason of what appears to be the expiration of his term of service. 

4.  By regulation, Soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.  This determination is made through the physical disability evaluation system.  There is no evidence available to indicate the applicant underwent an MEB and/or PEB to evaluate his physical condition against the physical requirements of his particular office, grade, rank or rating or to make findings and recommendation to establish his eligibility to be separated or retired because of physical disability or, almost 30 years later, that he should have been referred to an MEB and/or PEB.

5.  In view of the foregoing, regrettably, there is insufficient evidence to grant the applicant relief in this case.

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)                                         AR20090009986



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ABCMR Record of Proceedings (cont)                                         AR20090009986



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