IN THE CASE OF:	

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090014315 


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 his records to show he was medically discharged from active duty. 

2.  The applicant states, in effect, that he sustained injuries while serving in Iraq and a line of duty (LOD) investigation was initiated that shows he incurred severe trauma to his lower back, knees, and legs.  The applicant states after departing Iraq his unit reported to Camp Shelby, Mississippi for demobilization.  During demobilization he should have been referred to the Physical Disability Evaluation System (PDES) for evaluation by a Medical Evaluation Board (MEB) prior to his release from active duty because his injuries occurred while on active duty.  The applicant states he was not afforded the opportunity to present his case to an MEB/Physical Evaluation Board (PEB).

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status) dated 18 October 2005

* Standard Form (SF) 600 (Chronological Record of Medical Care) dated 
18 October 2005

* DD Form 2161 (Referral for Civilian Medical Care) dated 6 December 2005

* two Department of Veterans Affairs (VA) Rating Decision memoranda dated between 12 December 2006 and 12 March 2008

* 328 pages of VA medical documents (a list of problems medications radiology reports lab results and progress notes)

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior service in the Regular Army and the U.S. Army Reserve.  He enlisted in the Tennessee Army National Guard (TNARNG) on 
18 October 2004 for 1 year.  

2.  The applicant's 18 October 2004 DD Form 2807-1 (Report of Medical History), Item 10a (Have You Ever Had or Do You Now Have) shows the applicant was examined during his enlistment.  The applicant indicated he had recurrent back pain and back problems.

3.  On 7 May 2005, he was ordered to active duty and deployed to Iraq.

4.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 
17 September 2005, shows the applicant extended in the TNARNG for 6 years.

5.  The applicant provided a DA Form 2173, dated 18 October 2005, that indicates in July 2005 he injured his lower back while riding as a gunner in a vehicle.  The applicant was required to stand for several hours at a time over harsh terrain conditions, which caused severe trauma to his lower back and knees.  This document shows the attending physician, Major (MAJ) D_ _ _ R 
N _ _ _ _ examined and verified the applicant's injury.  The document further shows the applicant's commander, MAJ W _ _ _ _ _ D J _ _ _ _ _ determined the applicant's injury was in the line of duty (LOD).  

6.  The applicant provided an SF 600, dated 18 October 2005, that shows he was examined in Iraq for follow-up for low back pain.  The applicant told medical personnel that while in Iraq some 3 months prior, he injured his lower back while riding in a HUMVEE.  It was noted that the applicant had full range of motion in his back with mild tenderness, minus straight leg rising.  He was given Naprosyn and Tylenol.  It appears the physician who examined him was MAJ D_ _ _ R N _ _ _ _.  

7.  On 25 October 2005, the applicant departed Iraq with his unit for demobilization at Camp Shelby, Mississippi.  

8.  The applicant provided a DD Form 2161, dated 6 December 2005 that shows he was referred to an orthopedic clinic in Hattiesburg, Mississippi.  He was diagnosed with mild degenerative disc L3- L4.  The documents indicated "activity as tolerated" and "possible evaluation by spine specialist if symptoms increase."

9.  On 29 December 2005, the applicant was released from active duty and returned to the TNARNG.

10.  The applicant provided a VA Rating Decision, dated 12 December 2006, that shows he was rated as 20 percent disabled due to lumbar spondylosis; 
10 percent disabled due to right knee osteoarthritis; and 10 percent due to right carpal tunnel syndrome.

11.  A DA Form 3349, dated 14 October 2007, shows the applicant was issued a permanent profile for Post-Traumatic Stress Disorder (PTSD), lower back pain, right knee pain, and right arm pain.  

12.  On 15 November 2007, the applicant was discharged from the Army National Guard and as a Reserve of the Army due to being medically unfit for retention.  He had completed 9 years, 4 months, and 19 days of qualifying service.

13.  The applicant provided a VA Rating Decision, dated 12 March 2008, that shows he was rated as 50 percent disabled for PTSD.

14.  The applicant's medical records are not available.

15.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau (NGB).  The advisory official recommended disapproval of the applicant's request for a medical discharge based on the authenticity of the DA Form 2173 and SF 600 the applicant provided to the Board.  The advisory official stated the attending physician,
MAJ D_ _ _ R N _ _ _ _, was not deployed to Iraq and therefore could not have examined the applicant as both the DA Form 2173 and SF 600 documents show. The advisory official stated that the signature of the applicant's commander, 
MAJ W _ _ _ _ _ D J _ _ _ _ _, did not match the signature found in his records.  The advisory official further stated the attending physician signed and dated the DA Form 2173 on 18 October 2005 and the commander signed and dated 
DA Form 2173 on 20 July 2005, making it impossible for the commander to make an LOD determination prior to the attending physician's examination. 


16.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 2 May 2010, the applicant responded by electronic mail (email) stating he could not see how the NGB might question the authenticity of the DA Form 2173.

17.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or the proximate cause was incurred while performing active duty or inactive duty training.

18.  Army Regulation 635-40 states, in pertinent part, that when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of his or her grade or rank because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501.

19.  Army Regulation 600-8-1 (Army Casualty Program), in pertinent part, provides that a line of duty investigation must be conducted in all cases of injury not as a result of enemy action.  It also provides it is essential to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an investigation may or may not be required to make this determination.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge from active duty should be changed to a medical discharge.  Evidence of record shows the applicant enlisted in TNARNG 18 October 2004.  During his enlistment physical, the applicant indicated he had recurrent back pain and back problems.  He provided a DA Form 2173 and SF 600 that show he was examined for injuries incurred while he was deployed in Iraq and both a military physician and his command verified these documents.  However, the NGB advisory opinion called into question the validity of the documents and recommended denial of his request.  




2.  The applicant provided a DD Form 2161 that shows he was examined and found to have mild degenerative disc L3 and L4 before being released from active duty.  However, there is no evidence of record that indicates he was ever unable to perform his military duties while on active duty.  It appears when he was released from active duty he was medically fit to perform his duties.  

3.  The evidence of record and the applicant himself failed to indicate he could not perform his military duties while on active duty.  He provides no evidence that shows he could not perform his duties.

4.  Based on the above, the applicant has not submitted sufficient evidence to show he was eligible for referral to the physical disability system or that he was ever unfit by reason of physical disability while on active duty.

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)                                         AR20090014315



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ABCMR Record of Proceedings (cont)                                         AR20090014315



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