IN THE CASE OF:	

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20090019324


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 the following:

* void his honorable discharge from the U.S. Army Reserve (USAR) 
* reinstate him in the USAR
* evaluate him by a medical evaluation board (MEB) for an injury that happened while he was on active duty

2.  The applicant states the following:

* he should have gone through medical processing since his injury occurred on active duty
* paragraph 2 of the notification of medical disqualification states that if the injury was service connected and there was a line-of-duty (LOD) investigation, then initiate a request for an MEB
* he has an LOD
* he was not counseled or given a separations briefing
* paragraph 6 of the notification of medical disqualification states that the unit commander was to complete boxes 19 to 23 of the DA Form 3349 (Physical Profile) and forward a completed copy no later than the suspense date
* he initiated two different Military Occupational Specialty (MOS) Medical Review Board (MMRB) packages while stationed with the USAR in California
* he relocated to Oklahoma and informed them about the MMRB
* 2 years have passed since the injury occurred and there should have been some accountability in place to prevent this from happening

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

* time line of events
* Active Duty Report
* magnetic resonance imaging (MRI) results of left shoulder
* notification of medical disqualification
* two DA Forms 3349
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Standard Form 507 (Clinical Record)

CONSIDERATION OF EVIDENCE:

1.  After having prior service in the U.S. Marine Corps, the applicant enlisted in the USAR on 27 February 2004.

2.  He served on active duty at Fort Benning, GA, during the period 16 April 2004 to 17 June 2004.

3.  On 23 April 2004, the applicant dislocated his left shoulder while moving furniture.  A DA Form 2173 was completed for left shoulder pain caused by a dislocation and indicated the applicant's injury was incurred in the LOD.

4.  On 6 May 2004, the applicant was referred to a civilian medical facility, HealthSouth Diagnostic Center of Columbus, GA, for an MRI of his left shoulder because he had left shoulder pain following dislocation with decreased range of motion.  The MRI stated, "[N]o findings to suggest full thickness rotator cuff tear seen."  The impression was for "findings consistent with subtle partial tear and/or tendinosis [damage to a tendon at a cellular level [the suffix "osis" implies a pathology of chronic degeneration without inflammation]."

5.  The applicant was released from active duty on 17 June 2004.  There is no further evidence in the applicant's record pertaining to his shoulder problem.

6.  On 12 February 2005, the applicant received a DA Form 3349 giving him a permanent physical profile of "141111" for a "left shoulder injury."  Of note, item 4c (Does Soldier Meet Retention Standards) was completed to show an MMRB was required, indicating that he met retention standards despite his medical issues.  There is no record of an MMRB being conducted.

7.  The Human Resources Command - Integrated Web Services (IWS) shows the applicant attended inactive duty training on a somewhat regular basis (except between the period April 2006 and September 2007) until February 2009.  

8.  A Standard Form 507 was completed on 12 December 2008.  The applicant stated he had a "dislocated shoulder torn rotator cuff (DSTRC)" that impacted his ability to perform certain military duties.  The medical practitioner opined that the injury was permanent.

9.  On 27 February 2009, the applicant received a new DA Form 3349 showing a permanent physical profile for "chronic left shoulder pain due to dislocation and resulting torn rotator cuff."  Item 4c was marked "Needs MEB/PEB" indicating the applicant no longer met retention standards.

10.  On 27 February 2009, the USAR Command Surgeon sent the applicant's commander a memorandum, subject:  Notification of Medical Disqualification.  The memorandum listed the applicant's medical disqualification history as "recurrent dislocation of shoulder, not repairable" and provided the following options:

	a.  If the condition is service connected, LOD – yes; initiate a request for an MEB at an active duty medical facility through this office.

	b.  If the condition is non-duty related, the [applicant] has three options for disposition of this case.  As [applicant's] commander, you have the responsibility to counsel the [applicant] on the following three options:

		(1)  [Applicant] may elect to transfer to the Retired Reserve if he is eligible for retirement based on total qualifying years of service.  As a member of the Retired Reserve, [applicant] is not eligible for retired pay or benefits unless otherwise entitled by law.

		(2)  [Applicant] may elect to be discharged from the Army Reserve.  If this option is elected, [he] will receive an Honorable Discharge Certificate.

		(3)  [Applicant] may elect consideration by a non-duty related (NDR) PEB.  NDR-PEB review is limited to a fitness determination.  It cannot award disability compensation.  It will consider the medical records; non-medical administrative documentation, such as noncommissioned officer evaluation reports; Army Physical Fitness Test results; commander's recommendations; and other information that the [applicant] may wish to submit.

11.  The 27 February 2009 memorandum also stated the unit commander was instructed to complete blocks 19 to 23 of the 27 February 2009 DA Form 3349.  No record of options form completed by the applicant was available for review.  However, electronic mail (email) traffic provided by the applicant suggests the applicant chose to accept a discharge.

12.  The applicant provided copies of partial emails and a webmail between himself and the Medical Holdee's Branch Chief at the 89th Regional Readiness Command which stated the following:

	a.  On 5 February 2009, the applicant informed the branch chief he would send a copy of his LOD.  In response, the branch chief stated the LOD was not completed, never approved, and never sent to the approving authority.

	b.  On 27 February 2009, the branch chief forwarded copies of the applicant's permanent physical profile and medical disqualification letter to him and a staff member at the 103rd Support Command.  The applicant was instructed to make a choice on the options form and to have his commander complete and sign blocks 19 to 23 and return the documents.

	c.  On 11 March 2009, the Medical Holdee's Branch Chief informed the applicant that if he decided to undergo an MEB, he would have to go to drill and this would take a while.  In response, the applicant stated he had attached his LOD and had decided to take a discharge.  He wondered if he could get the LOD error fixed.  The branch chief responded, stating the commander acknowledged there was an incident and LOD was signed by medical personnel and the date of injury was noted, but the commander did not write down the details of the accident in block 30.  It was also stated that the LOD was never processed through the higher commander.  He was advised if he had the medical notes from the day noted along with orders, the LOD could still possibly be reviewed.  If he was on drill status, he should provide a sign-in roster.  He was informed about the discharge packet and asked if he wanted it processed.

	d.  On 5 August 2009, the applicant indicated he had done two MMRB's, both started in the unit he was attached to in California.  The first one was lost after a year and the second one was lost again.  He waited 3 years and had nothing to show for it.

	e.  On 6 August 2009, the applicant was advised that an MMRB was for a Soldier who met retention standards.  The last physical profile he received indicated he did not meet retention standards and required an MEB/PEB.  The MEB for duty-related injuries and diseases required an approved LOD, which at the time he did not have, or an NDR-PEB.  Both boards would require time and, as he stated, his job was getting in the way, he chose a discharge.  He was advised to apply to this Board.  If his goal was retirement, he did not qualify, or if his ultimate goal was disability with severance pay, he did not have an approved LOD to qualify.

13.  The applicant was honorably discharged from the USAR on 11 April 2009.

14.  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 an 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 (PDES), Soldiers who sustain or aggravate physically-unfitting disabilities must meet several LOD 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.

15.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to establish service PDES for the purpose of retiring or discharging a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for operating the Army's PDES and executes Secretary of Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected



16.  Soldiers enter the Army's PDES in various ways:

	a.  Referred by an MEB – when a Soldier has received maximum benefit of medical treatment for a condition that may render a Soldier unfit for further military service, the medical treatment facility (MTF) conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40.

	b.  Referred by the MMRB – the MMRB is an administrative screening board by a Soldier's command to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary MOSs.  Referral to an MEB/PEB is one of four actions the MMRB Convening Authority (MMRBCA) may direct.  If the MMRBCA directs referral to an MEB/PEB, conduct of the PEB is mandatory whether or not the Soldier meets medical retention standards.

	c.  Referred as the result of a fitness-for-duty medical examination – when a commander believes a Soldier of his or her command is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the MTF for evaluation.  If the evaluation results in an MEB and it determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB.

	d.  Referred as a result of Department of the Army Headquarters action – the Commander, HRC, upon recommendation of The Surgeon General, may refer a Soldier to the responsible MTF for medical evaluation as described above.  HRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier.

17.  Army Regulation 40-501, chapter 7 (Physical Profiling), 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 indicates 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.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

18.  Army Regulation 40-501, chapter 7, also outlines the preparation, approval, and disposition of DA Form 3349 and states that it will be used to record both permanent physical profiles and temporary physical profiles.  A DA Form 3349 will be prepared as follows:

	a.  Item 1 – record medical conditions and/or physical defects in common usage, nontechnical language that a layman can understand.  For example, "compound comminuted fracture, left tibia" might simply be described as "broken leg."  The checkboxes labeled Injury and Illness/Disease are used for tracking purposes.  Check the injury box if the Soldier's medical condition is the result of an injury; otherwise, check the box labeled Illness/Disease.

	b.  Item 2 – code designations are limited to permanent physical profiles for administrative use only and are to be completed by the profiling officer.  The complete assignment limitations are recorded in item 10.

	c.  Item 3 – enter under each permanent and temporary PULHES factors the appropriate physical profile serial code (1, 2, 3, 4, as prescribed) for the specific PULHES factor.  A Soldier may have a permanent physical profile for one condition and a temporary physical profile for another.  All permanent physical profile blocks must be filled in.  Only the applicable block under the temporary physical profile needs to be completed.  For example, a Soldier with a sprained ankle who has a permanent H3 hearing loss would be coded "111311" in the permanent PULHES space, but "__3__" under the temporary PULHES space.

	d.  Item 4 – check the appropriate block for the type of physical profile.  If the physical profile is temporary, enter the expiration date.  If the physical profile is permanent, the profiling officer must assess if the Soldier meets retention standards.  Those Soldiers on active duty who do not meet retention standards must be referred to an MEB.  Those Soldiers (active duty and USAR/Army National Guard) who meet retention standards but have at least a 3 or 4 PULHES serial will be referred to an MMRB, unless waived by the MMRBCA.

		(1)  Normally, Reservists who do not meet the fitness standards will be transferred to the Retired Reserve or discharged from the USAR.  They will be transferred to the Retired Reserve only if eligible and if they apply for it.

		(2)  Reservists who do not meet medical retention standards may request continuance in active USAR status.  In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the LOD. Reservists with nonduty related medical conditions who are pending separation for not meeting medical retention standards may request referral to a PEB for a determination of fitness.

	e.  Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his 11 April 2009 USAR discharge be voided and that he be brought back in the active USAR to undergo an MEB for a shoulder dislocation injury that occurred on 23 April 2004 and a rotator cuff tear that was subsequently diagnosed.

2.  The applicant hurt his left shoulder on 23 April 2004 while serving on active duty.  The LOD determination was for shoulder pain and a simple dislocation of the left shoulder was not thought to represent a potential claim against the U.S. Government.  A simple dislocation does not cause a Soldier to fail retention standards.  

3.  The evidence of record shows that around December 2008, the applicant sustained another injury to his dislocated shoulder torn rotator cuff.  It appears this was the injury that resulted in his discharge for medical unfitness in 2009, not the 2004 injury.  

4.  The applicant's discharge in 2009 was based on a medical review by the USAR Regional Readiness Command's Command Surgeon of a civilian physician's determination that the applicant had a torn rotator cuff.

5.  Although the applicant contends he should have gone through medical processing since his injury occurred on active duty, the available evidence shows his medical condition did not render him medically unfit or unable to meet 


retention standards until around February 2009, 5 years after he was released from active duty.  IWS indicates he was able to perform duties from the time of his release from active duty until around February 2009.

6.  The applicant's service record confirms the following:

* he dislocated his left shoulder while on active duty and received an LOD
* he was placed on permanent physical profile for left shoulder injury 
* no record of any MMRBs
* he sustained a subsequent injury to the left shoulder around December 2008
* a civilian physician diagnosed him with a left rotator cuff tear in December 2008
* no record of an LOD determination for the December 2008 left rotator cuff tear
* he elected to be discharged from the USAR

7.  The evidence of record does not indicate the applicant's December 2008 left rotator cuff tear was incurred in or aggravated as a result of military service.  The applicant received email instructions to provide medical documentation and, if he was on drill status, a sign-in roster in order to complete an LOD determination.  However, the applicant chose to be discharged rather than provide the documentation required to complete an LOD for the December 2008 injury that would have been required for an MEB.  

8.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20090019324



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ABCMR Record of Proceedings (cont)                                         AR20090019324



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