IN THE CASE OF:	

		BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090014465 


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 his discharge from the Puerto Rico Army National Guard (PRARNG) and transfer to the Retired Reserve be voided and that he be processed through the Physical Disability Evaluation System (PDES).

2.  The applicant states that his discharge from the Army National Guard was erroneous because regulatory procedures were not followed.  He goes on to state he was transferred to the Retired Reserve because he was given a permanent physical profile by way of a fit-for-duty determination board conducted on 10 December 2005 and was not afforded an opportunity to elect referral to the PDES for a proper medical determination of his condition to establish the proper disposition and his disability benefits.  He further states that the condition for which he was declared unfit for retention was acquired while serving on active duty since he was treated and diagnosed with post-traumatic stress disorder (PTSD) while on active duty; however, a line-of-duty (LOD) investigation was not conducted prior to his separation.  Accordingly, he should have been referred to the PDES process under a presumptive LOD rule.

3.  The applicant provides a copy of the results of his PRARNG Fit for Duty Determination Board (FFDDB), a copy of his PRARNG Physical Profile Board Acknowledgment Statement, copies of documents from his medical records, a copy of his discharge orders, and an amendment of his discharge orders.



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 was born on 24 March 1962 and enlisted in the PRARNG on 1 May 1981.  He continued to serve through a series of continuous reenlistments and was issued his 20-year letter on 1 May 2001.  He was promoted to the pay grade of E-6 on 1 November 2002.

3.  On 14 February 2003, he was ordered to active duty with his unit in support of Operations Noble Eagle and Enduring Freedom.  He was mobilized to Fort Bragg, North Carolina.

4.  On 31 July 2003, the Fort Bragg TRICARE Service Center requested a psychiatric consult of the applicant indicating that the applicant presented with insomnia, anxiety, depressed mood, irritability, and restlessness after returning from Iraq.

5.  On 5 January 2004, while on terminal leave, the applicant was seen at the Rodriguez Health Clinic at Fort Buchanan, Puerto Rico, and was diagnosed as suffering from a severe recurrent major depressive disorder.

6.  On 15 January 2004, the applicant was released from active duty (REFRAD) at Fort Bragg due to completion of required service and was returned to his PRARNG unit.

7.  On 10 December 2005, an FFDDB was convened in Salinas, Puerto Rico, which determined the applicant suffered from a major depressive disorder, PTSD, that he was unable to comply with all of his military occupational specialty duties, that he had 23 years of service, that he was qualified for retirement, that he was issued a permanent physical profile of S4 (psychiatric) with assignment limitations of unfit for service, and that he was unfit for retention in the PRARNG.   The board requested that all administrative actions be completed for the Soldier's separation within 30 days.  The FFDDB memorandum was prepared on 28 December 2005.

8.  On 10 December 2005, the same day the FFDDB convened, the applicant was honorably discharged from the PRARNG and was transferred to the Retired Reserve.

9.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB) which recommends, in effect, that the applicant's medical records be reviewed by the appropriate boards of the PDES.  Officials at the NGB opine that the chain of command failed to properly refer the applicant to the PDES and to properly counsel him after his FFDDB.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the Board.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTF's) who are treating Soldiers may initiate action to evaluate the Soldier's physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a medical evaluation board (MEBD).

DISCUSSION AND CONCLUSIONS:

1.  While it cannot be determined based on the available evidence the extent of the applicant's disabilities at the time of his REFRAD and discharge, there is sufficient evidence to show he was being treated for depression while on active duty and prior to his discharge from the PRARNG.

2.  Inasmuch as the NGB has issued a favorable opinion supporting the applicant's claim that he was not properly processed through the PDES and that he was not properly counseled in regard to his rights and options at the time, it would be in the interest of justice that he be afforded his rights at this time.

3.  While no attempt will be made to determine if any of the applicant's conditions warrant a disability rating, an attempt should be made to correct the injustice done to the applicant by affording him an opportunity to be properly evaluated by appropriate medical personnel and systems designed to determine the degree of disability a Soldier may have prior to separation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  __X_____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all State Army National Guard and 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, a physical evaluation; and

	b.  if appropriate, by referral to an MEBD and physical evaluation board (PEB).

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the physical evaluation and, if necessary, the MEBD/PEB.  

3.  In the event 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.  Should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his administrative discharge and to issue him the appropriate disability separation retroactive to his original ARNG separation date with entitlement to all back pay and allowances, less any entitlements already received.

5.  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 voiding his discharge from the PRARNG prior to or while undergoing PDES processing.



      __________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)                                         AR20090014465



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ABCMR Record of Proceedings (cont)                                         AR20090014465



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