BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090016282 


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 to be processed through the Army Physical Disability Evaluation System (PDES).

2.  The applicant states the following:

   a.  he was not afforded due process when he was medically retired from the Army National Guard (ARNG) and placed on the "Permanent Disability Retired List" without being processed through the PDES;

   b.  he twice forwarded his discharge orders, National Guard Bureau (NGB) Form 22E (Report of Separation and Record of Service), NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement), DD Form 108 (Application for Retired Pay Benefits), and DD Form 2656 (Data for Payment of Retired Personnel) to the Defense Finance and Accounting Service (DFAS), London, KY and U.S. Army Human Resources Command, St. Louis
(USAHRC-STL) to initiate his retired pay;

   c.  both times his retirement packet was returned informing him to reapply at age 59 or one year prior to turning age 60;

   d.  in November 2008, DFAS and USAHRC-STL informed him that he had to be processed through the Army PDES to receive a disability rating and the proper medical retirement order;
   
e.  between 11 December 2008 and 10 February 2010, he contacted the following agencies on numerous occasions seeking a referral to the Army’s PDES without success:

* Physical Evaluation Board (PEB) Liaison Officer (PEBLO), Madigan Army Medical Center, Ft. Lewis, WA
* California ARNG (CAARNG) Medical Services Branch
* Joint Forces Headquarters, Medical Services Branch, Camp Roberts,  CA
* Joint Forces Headquarters, Judge Advocate General (JAG),
		Sacramento, CA
* CAARNG Inspector General
* CAARNG unit commander
* State Surgeon’s General’s Office

   f.  on 19 February 2010, an IG official informed him that because of his current assignment in the Retired Reserve, his retirement order cannot be revoked to bring him back on active duty and advised him to apply to the Army Board for Correction of Military Records (ABCMR) for relief.

3.  The applicant provides the following documents:

* five 5 self-authored statements
* three CAARNG State Inspector General letters
* a DA Form 1559 (Inspector General Action Request)
* his discharge order 
* his NGB Form 22E
* his NGB Form 23B
* his NGB Form 55B (ARNG Honorable Discharge Certificate)
* a DFAS Form 702 (DFAS Military Leave and Earning Statement)
* a Department of Veterans Affairs (VA) letter and Rating Decisions, dated 17 January 2008 and 21 January 2010, respectively
* a Marion Medical Center Medical Record document extracts
* a TRICARE letter and document extracts
* five pages of electronic mail (e-mail) documents
* his Army Medical Record document extracts
* a VA Form 10-5345 (Request for and Authorization to Release Medical Records or Health Information)
* his Official Military Personnel File (OMPF) document extracts
* a Sharp Memorial Hospital medical record document extracts
* a Representative in Congress letter
* a Privacy Act Statement
CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 July 1955.  His military record shows that after having prior active service in the U.S. Air Force, he enlisted in the CAARNG on 29 January 1997.  He was trained in, awarded, and served in military occupational specialty (MOS) 92Y (Unit Supply Specialist).

2.  On 1 January 1999, the applicant entered active duty as a member of the ARNG.  A DA Form 3349 (Physical Profile) included in his OMPF shows he was issued a temporary profile on 4 November 2006 for conditions involving asthma, his left hip, right knee, and GERD (Gastro Esophageal Reflux Disease), with an expiration date of 28 February 2007.

3.  The applicant continued to serve until he was released from active duty (REFRAD) and transferred to his ARNG unit on 3 January 2007.  The DD Form 214 issued to him at that time shows he completed 8 years and 3 days of net active service during this period of service.

4.  On 10 December 2007, the applicant’s commander initiated a request for a medical determination based on the applicant having filed a formal line of duty for a left hip injury.  The commander indicated both civilian and military health care providers diagnosed the applicant with the following conditions:

* severe osteoarthritis in his left hip
* mild osteoarthritis in his right hip
* chronic pain in his right knee
* asthma

5.  On 17 January 2008, the VA rated the applicant 50 percent (%) disabled from 4 January 2007, the date following his REFRAD, based on the following service-connected disabilities:

* Moderate persistent asthma				30%
* Mild osteoarthritis (right hip)				  0%
* Severe osteoarthritis (left hip)				20%
* Degenerative joint disease (DJD)
right knee with laxity						10%
* Hypertension									  0%
* GERD											  0%


6.  On 28 April 2008, the G-1, The Adjutant General (TAG), CAARNG, notified the applicant that the State Surgeon’s Office determined he did not meet medical retention standards for continued participation in the CAARNG and informed him he would be separated on 16 May 2008.  The applicant was informed of his entitlement to a fitness for duty evaluation by a PEB and provided the following options from which to make an election and return no later than 12 May 2008:

	a.  discharge from the ARNG and as a Reserve of the Army for medical retention disqualification in accordance with National Guard Regulation (NGR) 600-200, chapter 8, paragraph 8-26;

	b.  transfer to the Retired Reserve in accordance with Army Regulation
140-10 with the understanding that transfer to the Retired Reserve does not entitle him to pay allowances, or other benefits unless otherwise entitled by law; and 

	c.  non-duty related PEB for retention ruling.

7.  The applicant elected transfer to the Retired Reserve and acknowledged his understanding that he was not entitled to pay, allowances, or other benefits unless otherwise entitled by law.

8.  On 16 May 2008, the applicant was honorably discharged from the CAARNG after completing a total of 19 years, 10 months, and 23 days of creditable military service and over 17 years of qualifying service for a Reserve retirement.  The NGB Form 22E issued to him at that time shows he was discharged under the provisions of National Guard Regulation 600-200, paragraph 8-27I, by reason of “Placement on the Permanent Disability Retired List.”

9.  On 26 January 2010, the VA increased the applicant’s overall combined rating from 50% to 60% from 4 January 2007 based on his right knee laxity; to 100% from 2 December 2009 based on his total left hip arthroplasty (replacement) on that date; and to 60% from 1 February 2011 at which time the VA should reexamine his left hip condition to determine if symptoms are present which meet the criteria for a higher evaluation.

10.  In a letter dated 22 February 2010, the CAARNG State IG indicated the following:

   a.  that a thorough inquiry concerning the applicant’s request was conducted,

   b.  the Medical Services Branch, CAARNG, determined the applicant was medically unfit for duty and thus discharged and assigned him to the USAR Control Group (Retired Reserve), and

   c.  although the applicant subsequently provided sufficient data for a line of duty to be processed that provided justification for a PEB while he was in the ARNG, his current status requires that he petition this Board for relief in his case.

11.  During the processing of this case, on 31 March 2010, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The Chief indicated the applicant’s request was not clear and returned it without action.  The Chief further recommended the ABCMR forward the applicant’s case to the Army PDES for evaluation if that is the intent of the applicant.

12.  The applicant provides a DD Form 2173 (Statement of Medical Examination and Duty Status) which shows he was examined on 7 February 2001 for complaints of right knee pain that occurred while participating in Army Physical Fitness Training (APFT) during drill on 3 February 2001.  This document shows this injury was considered to be in the line of duty.  It does not contain the signature of the attending physician or unit commander/official.

13.  The applicant provides a DD Form 2173 which shows he was examined on 26 May 2005, after he experienced an episode of coughing, gasping for air, and becoming unconscious while attempting to use an inhaler.  This document shows the applicant has a history of asthma.  This document shows the applicant's injury was considered incurred in the line of duty and it includes the signatures of the attending physician and his unit commander/advisor.

14.  The applicant provides a DD Form 2173 which shows he was examined on 6 September 2006 for constant chronic left groin pain resulting from an injury he sustained while lifting weights in the Joint Forces Headquarters Gymnasium on 27 March 2000.  It also shows his injury progressed over the years rendering him unable to perform the APFT since July 2006, at which time he complained of chronic left hip pain.  This document also shows this injury was considered to be in the line of duty and it does not include the signatures of the attending physician or unit commander/advisor.

15.  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 a Medical Evaluation Board (MEBD) and PEB.  Chapter 10 sets basic policies, standards, and procedures for medical examinations and physical standards for the ARNG/ARNGUS.  Paragraph
10-25a states that members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  Paragraph 10-25b states Soldiers pending separation for in the line of duty injuries or illnesses will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

16.  Army Regulation 635-40, chapter 4, provides the eligibility for disability processing and it states a commander will refer a Soldier of their command to the responsible medical treatment facility for evaluation when it is believed that Soldier is unable to perform the duties of their office, grade, rank, or rating because of physical disability.

17.  Paragraph 4-19 (Entitlements to Benefits) states a Soldier is entitled to disability retired or severance pay when the disability was incurred while the Soldier was entitled to basic pay and not the result of the Soldier's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and either the Soldier has at least eight years of active federal service for retirement; the disability is the proximate result of performing active duty; the disability was incurred in the line of duty in time of war or national emergency; or the disability was incurred in line of duty after 14 September 1978.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was not processed through the Army’s PDES prior to his discharge from the ARNG and placement on the "Physical Disability Retired List."

2.  The evidence of record confirms the applicant’s medical treatment for condition(s) he incurred while entitled to basic pay as evidenced by the DA Forms
 3349 on file and the DA Forms 2173 he provides.  He received a verified approved in the line of duty for at least one of these conditions as evidenced on the DA Form 2173 authenticated by his unit commander and the attending physician.

3.  Subsequent to the applicant’s REFRAD and transfer to the ARNG, the State Surgeon General determined he did not meet medical retention standards for continued service based on conditions he initially incurred while entitled to basic pay and erroneously discharged him and directed his placement on the "Permanent Disability Retired List" without referral to the Army’s PDES.

4.  By regulation, members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefit while Soldiers pending separation for in the line of duty injuries or illnesses are processed in accordance with Army Regulation
40-400 and Army Regulation 635-40

5.  Based on the foregoing, absent the applicant’s processing through medical channels, he did not meet the criteria for separation under the provisions of National Guard Regulation 600-200, paragraph 8-26l by reason of “placement on the PDRL” as currently reflected on his NGB Form 22E.  Rather, he met the criteria for separation processing through medical channels as indicated in the State IG letter and NGB advisory opinion.  However, it appears he should have been processed through the PDES.

6.  At this point, it cannot be determined if the applicant met/meets the criteria for a medical retirement or, if so, with what percentage of disability.

BOARD VOTE:

___x_____  ___x_____  ___x__  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that the State Army National Guard records and the 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, referring the applicant to an MEBD and 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 a formal PEB becomes necessary, the applicant 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.




      ___________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)                                         AR20090016282



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ABCMR Record of Proceedings (cont)                                         AR20090016282



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