IN THE CASE OF:	  

		BOARD DATE:	    17 February 2010

		DOCKET NUMBER:  AR20090013367 


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 considered for a medical evaluation board (MEBD) and a medical retirement.

2.  The applicant states that he should have been medically retired from the Army and not relieved from active duty (REFRAD) as a Reserve Soldier.  The applicant adds that he was taken off the unit books even though he had two permanent "3" physical profiles and was not fit for duty.  He offers that he believes that his REFRAD was done in retaliation for challenging the unit commander's motives.  The applicant states that he had major eye surgery due to a ruptured right globe and back surgery where four discs were removed from his back.  The applicant states that the Inspector General (IG) at Fort Lewis felt that he had a legal claim and forwarded his claim to the Department of the Army IG under the "Whistleblower Protection Act."  He offers that he was called by the neurosurgery department and "requested to set up a medical board," but his commander advised the department that there was no need to set up the board since the applicant was already 60 years old.  The applicant maintains that the commander stated that all his future medical problems could be resolved by the Department of Veterans Affairs (VA).

3.  The applicant provides DA Forms 2173 (Statement of Medical Examination and Duty Status), Medical Care Records, DA Forms 3349 (Physical Profile), and a DD Form 214 (Certificate of Release or Discharge from Active Duty).


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the U.S. Army Reserve (USAR) on 6 June 1972.  He was ordered to active duty on 24 August 2005 in support of Operation Iraqi Freedom (OIF).  The applicant remained on active duty until he was honorably released on 30 June 2009.  The applicant's date of birth is listed as 17 June 1948.

2.  A DA Form 2173, dated 13 September 1993, shows the applicant was examined for a left knee torn ligament on 23 August 1993.  The report stated that the applicant sustained the injury doing physical training.

3.  A DA Form 2173, dated 11 October 2005, shows the applicant was examined for a right eye injury on 23 September 2005.  The details of the injury show that the applicant accidentally hit himself in his right eye with his Kevlar helmet during training.  He was diagnosed with a ruptured right globe with partial extrusion of the intraocular lens.

4.  A DA Form 2173, dated December 2006, shows the applicant was examined for sleep apnea on 6 July 2005.  The details of the disease show that he was diagnosed with sleep apnea disorder during a pre-mobilization physical.  The applicant was referred to the sleep clinic and underwent treatment for sleep apnea.  His condition was determined to be in the line of duty.

5.  A DA Form 2173, dated 7 December 2006, shows the applicant was examined for aggravation of a bilateral knee injury/posterior horn medial meniscal tear on 8 June 2006.  The details of the injury stated that on 15 August 2005 while deployed to New Mexico in support of OIF the applicant aggravated pre-existing knee injuries bilaterally in the mobilization process.  He received surgery on both knees at March Air Force Base between 1987 and 1992.  The applicant was since diagnosed with a posterior horn medial meniscal tear.  He received multiple quarterly steroidal injections in both knees.  His injury was determined to be "in line of duty "EPTS [existed prior to service] aggravation."

6.  A DA Form 2173, dated 7 December 2006, shows the applicant was examined for aggravated back injury/herniated intervertebral disc/disc degeneration on 30 June 2006 that occurred on or about 15 August 2005.  The remarks indicated that the applicant aggravated a pre-existing back injury while deployed to the Pentagon in support of OIF.  The remarks stated the applicant hurt his back originally on active duty in 1979 while dismounting a 2 1/2 ton truck. 
He received multiple epidural steroid shots to the back over the past 2 years.  The remarks further stated the applicant reinjured his back during mobilization processing.  His injury was determined to be "in line of duty.  EPTS aggravation."

7.  On 15 February 2007, the applicant was diagnosed with a right eye ruptured globe.  The ophthalmologist stated the applicant was on an Eyes (E)-3 physical profile.  He said the applicant met the retention standards for vision in eyes in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  However, the ophthalmologist opined that the applicant required a permanent profile of E-3 with code "F" for continued medical supervision and frequent outpatient care.  He said that the applicant was able to perform his job in the Army and function in his current military occupational specialty (MOS).  He recommended that the applicant remain on active duty, but with a permanent profile.  He referred the applicant to a physical evaluation board (PEB) for adjudication.

8.  On 5 July 2007, the applicant sent a letter to the Commander, U.S. Army Intelligence Center and Fort Huachuca (USAIC&FH), Arizona, explaining why his line of duty package was sent to USAIC&FH.

9.  A DA Form 3349, dated 31 July 2007, shows the applicant received a permanent E-3 physical profile for spinal fusion, ruptured globe in the right eye, and bilateral degenerative joint disease in both knees.  Block 20 (Comment) of this form states, "If this is a permanent profile with PULHES serial of 3 or 4 refer to block 4c."  Block 4c is not checked indicating that a medical MOS retention board (MMRB), a PEB, or an MEBD was needed.  This form was signed by a medical doctor as the profiling officer.  No other name or signature was listed on this form.

10.  A DA Form 3349, dated 13 August 2007, shows the applicant received a temporary physical profile for recovering from spinal surgery.  The issuing clinic was listed as William Beaumont Army Medical Center Neurosurgery.

11.  A DA Form 3349, dated 24 March 2009, shows that the applicant received a permanent physical profile for lumbar disc herniations, L2 pelvis fusion in 2007.  Block 20 of this form states, "If this is a permanent profile with PULHES serial of 3 or 4 refer to block 4c."  Block 4c is not checked indicating that an MMRB, PEB, or an MEBD was needed.  This form was signed by a medical doctor as the profiling officer.  No other name or signature was listed on this form.

12.  Installation Management Command Orders 169-0012, dated 18 June 2009, released the applicant from active duty not by reason of physical disability.

13.  Army Regulation 40-501 states that a temporary profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity.  Individuals on active duty and Reserve Component (RC) members not on active duty with a temporary ("T") modifier will be medically evaluated every 3 months with a view to revising the profile.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

14.  Army Regulation 40-501 states that if the profile is permanent, the profiling officer must assess if the Soldier meets retention standards.  Those who meet retention standards but have at least a 3 or 4 PULHES serial will be referred to an MMRB unless waived by the MMRB convening authority.

15.  Army Regulation 40-501 states that a permanent "3" or "4" profile requires the signatures of two profiling officers, one of which is a physician approving authority.  Temporary or permanent profiles of "1" or "2" require the signature of one profiling officer.

16.  Army Regulation 600-60 (Physical Performance Evaluation System) states that an RC Soldier who is within 1 year of date of mandatory removal from RC Active Status will not be referred to the MMRB.

17.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  The regulation states, in pertinent part, that Soldiers not sooner removed from an active status for another reason will be removed when they reach age 60.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Solider is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, is an indication that the applicant is fit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have received an MEBD and entitlement to a disability retirement for his right eye and back conditions.  The evidence of record shows the applicant injured his right eye in September 2006 and his injury to his back occurred in 1979 and was aggravated in August 2005.

2.  The applicant's records further show that on 15 February 2007 the ophthalmologist examined the applicant and opined that he met the standards for vision in his eyes in accordance with Army Regulation 40-501.  He also stated the applicant was able to perform his job in the Army and function in his current MOS.  He did refer the applicant to a PEB for adjudication.

3.  The evidence of record further shows that on 31 July 2007 the applicant was issued a permanent profile for a ruptured globe in the right eye.  On 13 August 2007, he received a temporary profile for recovering from spinal surgery and on 24 March 2009 he received a permanent profile for lumbar herniation.  There was no indication on the permanent profiles that the applicant needed an MMRB, MEBD, or PEB.  Additionally, the permanent profiles were not signed by two profiling officers as required by regulation.

4.  The applicant argues that he was denied a PEB based upon the commander's comments that he was already 60 years old and could be evaluated by the VA.  The applicant maintains that he filed a complaint with the IG.  The records show the applicant was over the age of 61 at the time of separation which exceeded the maximum age requirement as set forth in the regulation.  In addition, the applicant has failed to provide any evidence, such as a copy of his complaint and/or the IG's response to his complaint, to substantiate his claim.

5.  The evidence of record shows the only reference to the applicant appearing before a medical board occurred in February 2007, but the permanent profile he received in July 2007 concerning the same issue indicated that no medical board was needed.  The evidence further shows that the applicant continued to perform his military duties until he was released from active duty.  There is no evidence and the applicant has not provided any which confirms that he was physically unfit to perform his duties at the time of his separation.

6.  The evidence of record indicates the applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis to approve his request to appear before an MEBDD and likewise no basis for a medical retirement.

7.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.


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)                                         AR20090013367





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ABCMR Record of Proceedings (cont)                                         AR20090013367



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