IN THE CASE OF:	  

		BOARD DATE:	    29 June 2010

		DOCKET NUMBER:  AR20090018727 


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 his narrative reason for discharge be changed from medically disqualified to a medical retirement. 

2.  The applicant states the following:

* He had a neck injury while on active status at Fort Rucker, AL for flight school and other training
* MRI [magnetic resonance imaging] results revealed three bulging discs between C-3/4 and T-1
* He was given an “Up Slip” after being on profile for several months with a permanent profile for no running or sit-ups 
* He was released from an active duty status and returned to Arizona on
M-day status
* The State Flight Surgeon determined he should be permanently medically disqualified from Aviation duties
* His profile was upgraded to include no wearing of a helmet of any type
* The regimental commander determined he should be medically boarded through the State Medical Review Board 
* The State Medical Review Board determined he should be retired and placed in the Retired Reserve
* His retirement was not a medical retirement but he was retired for medical reasons
* He is unable to draw retirement until age 60 because he was on M-day status and the State Medical Review Board did not have the authority to medically retire him
* He wants his retirement status changed to a medical retirement since his injury occurred on active status and the injury resulted in a discharge 
* He is no longer deployable or able to perform his duties as a pilot

3.  The applicant provides the following documents in support of his application:

* Separation orders from the Army National Guard, dated 4 December 2006
* NGB Form 22 (National Guard Bureau Report of Separation and Record of Service)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Confidential Patient Information
* Orders for active duty training (ADT) from 27 June 2003 to 11 June 2004
* Orders amending ADT to 27 June 2003 to 18 August 2003 
* Orders for ADT from 12 June 2004 to 14 June 2005
* Orders amending ADT to 12 June 2004 10 March 2005
* Orders amending ADT to 12 June 2004 to 13 October 2005

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 28 October 1967.  After having prior enlisted service, he was appointed in the Army National Guard on 19 August 2003 as a Warrant Officer One (WO1).  

2.  He completed a Confidential Patient Information form on 26 July 2004 and indicated the following:

* He was under doctor’s care
* His chief complaint was his neck
* He had suffered from a condition in his neck for two and one-half months
* He had a personal injury or accident in the past year

3.  The applicant’s notification of eligibility for retired pay at age 60 (20-Year Letter) is dated 30 December 2004.

4.  Orders show the applicant was ordered to ADT for Aviation flight training from 12 June 2004 to 13 October 2005.


5.  Orders 251-0040, dated 8 September 2005, released the applicant from active duty, not by reason of physical disability, effective 13 September 2005, and assigned him to Headquarters and Headquarters Detachment, 158th Support Battalion, Glendale, AZ on the following day.  

6.  The applicant’s service record does not include State Medical Review Board proceedings or any medical documents.  

7.  The applicant was discharged from the Army National Guard on 31 December 2006 under the provisions of National Guard Regulation 600-101, paragraph 
10-2a(11) by reason of being medically disqualified.  On the following day, he was transferred to the Retired Reserve.  He completed 3 years, 4 months, and 12 days during the period under review and a total of 22 years total service for retired pay.  

8.  National Guard Regulation 600-101 (Warrant Officers-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Paragraph 10-2a(11) states the appointment of an Army National Guard warrant officer should be terminated when the warrant officer becomes medically disqualified for further military service.  

9.  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 physical disability incurred while entitled to basic pay.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Under the laws governing the Army Physical Disability Evaluation system, 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.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  

10.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): 
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under 
all factors indicate that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

12.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he had a neck injury while on active status at Fort Rucker, AL for flight school and other training is acknowledged.  

2.  The applicant’s Confidential Patient Information, dated 26 July 2004, indicates he suffered from a neck condition for 2 1/2 months that is, in May 2004, before the start of his June 2004 ADT.  His service record does not include medical documents which verify he was medically unfit to perform his duties because of a neck condition.  The applicant admits he was given an “Up Slip” after being on a permanent profile for several months.  

3.  The applicant’s contentions in regard to his permanent profile are acknowledged.  However, his service record does not include evidence which confirms he was placed on permanent profile. 

4.  The applicant’s State Medical Review Board proceedings are not available.  However, it is presumed the applicant was examined by competent military medical personnel who made a valid determination that he was medically disqualified for further military service in the Army National Guard and that the injury was not incurred while he was entitled to basic pay.

5.  In the absence of evidence to the contrary, the applicant's discharge processing is presumed to have been administratively correct and in conformance with applicable regulations.

6.  Although the applicant contends that he should have been medically retired, the available evidence does not show his medical condition rendered him medically unfit to perform his duties or justify physical disability processing.

7.  The evidence of record does not indicate that an error or injustice exists in this case.  Therefore, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      _______________________
               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)                                         AR20090018727



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ABCMR Record of Proceedings (cont)                                         AR20090018727



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