BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007329 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was released from active duty (REFRAD) by reason of service-connected disabilities. 

2.  The applicant states he was REFRAD in April 2004 prior to the convening of the medical evaluation board (MEB) and the decision by the physical evaluation board (PEB) in April 2005.  His disabilities were all determined to be in the line of duty that ultimately resulted in his separation.

3.  The applicant provides the following documents:

* a copy of his DD Form 214 for the period ending 30 April 2004
* a copy of Orders 05-195-00029, dated 14 July 2005
* a copy of a DA Form 3349 (Physical Profile), dated 2 March 2005
* a copy of his MEB narrative summary (NARSUM), dated 17 February 2005
* a copy of his DA Form 3947 (MEB Proceedings), dated 19 April 2005
* a copy of his DA Form 199 (PEB Proceedings), dated 29 April 2005
* a copy of his PEB rebuttal memorandum, dated 12 May 2005
* a copy of line of duty determination memorandum, dated 3 December 2003
* 
a copy of a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 12 November 2003
* copies of various medical records and chronological records of medical care throughout his military service

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's records show he was born on 12 May 1961 and served in the Regular Army in military occupational specialty (MOS) 71L (Administrative Specialist) from February 1980 to March 1984.

3.  He enlisted in the U.S. Army Reserve (USAR) on 3 February 1986 and subsequently served through multiple reenlistments in the USAR and held MOS 75H (Personnel Services Specialist).  He was promoted to staff sergeant (SSG)/E-6 on 8 March 2002.  He was assigned to the 461st Personnel Services Battalion, Decatur, GA.

4.  On 15 March 2003, he was ordered to active duty as a member of his reserve unit in support of Operation Iraqi Freedom and subsequently served in Kuwait and Iraq from 20 April 2003 to 19 April 2004.

5.  On 2 May 2003, while in Kuwait, he injured his lower back while performing duties of mail operations.  A subsequent magnetic resonance imaging (MRI) showed degenerative disc disease of the lumbar spine, bulge of the L4-5 without nerve root involvement, and L5-S1 posterior central and left posterolateral herniated disc compromising the L5-S1 nerve root.

6.  On 8 July 2003, while still in Kuwait, he executed an indefinite reenlistment in the USAR.


7.  On 15 July 2003, he was issued a temporary physical profile for his low back pain.  The temporary profile assigned a numerical designator of "3" in the P -physical capacity or stamina factor and a "1" in the L - lower extremities factor.  The profiling officer restricted his ability to take a record Army Physical Fitness Test (APFT).

8.  On 25 October 2003, he was issued a second temporary physical profile for his low back pain.  The temporary profile assigned a numerical designator of "1" in the P factor and a "3" in the L factor.  The profiling officer again restricted his ability to take a record APFT.

9.  On 3 December 2003, a finding of "In Line of Duty" was made in relation to the applicant's 2 May 2003 injury.

10.  On 28 January 2004, he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him he had completed the required years of qualifying Reserve service for non-regular retirement and is eligible for retired pay upon application at age 60.

11.  On 28 February 2004, he received an annual Noncommissioned Officer Evaluation Report (NCOER) covering the period from March 2003 through February 2004 for his duties as Postal Operations NCO.  He did not take the APFT but met the height and weight standard.  He was rated among the best by his rater and a successful overall performance and superior potential by his senior rater 

12.  He was honorably released from active duty on 30 April 2004 to the control of his reserve unit by reason of completion of his required active service.  The DD Form 214 he was issued shows he was released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of his required active service.

13.  In August 2004, he received a change of rater NCOER covering the period from March 2004 through August 2004 for his duties as a Personnel Services Sergeant.  He did not take the APFT as it was not administered, but met the height and weight standard.  He was again rated among the best by his rater and a successful overall performance and superior potential by his senior rater.

14.  On 17 February 2005, he complained of a hurt back.  He subsequently underwent a physical examination at Fort Gordon, GA.  His NARSUM shows that 

subsequent to his return from Kuwait and REFRAD, he began treatment in the form of therapy and medications at a Department of Veterans Affairs (VA) hospital in May 2004.  He also raised the issue of pain in his knees related to an injury that occurred in 1991.  He indicated that he felt he was able to perform in his MOS but was unable to do some of the functional activities required of Soldiering.  The attending physician indicated that the applicant had received reasonable medical attention and had reached maximum medical improvement.  His condition seemed stable at a poor level and it did not seem he would be able to return to the required Soldiering activities; therefore, he did not meet retention standards.  He was recommended for entry into the Physical Disability Evaluation System (PDES).

15.  On 2 March 2005, he was issued a permanent physical profile for chronic low back pain and chronic bilateral knee pain, both due to degenerative disc disease.  The permanent profile assigned a numerical designator of "3" in the L factor.  The profiling officer again restricted his ability to take a record APFT or carry a rucksack. 

16.  On 19 April 2005, an MEB convened at Fort Gordon, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant suffered from the medically unacceptable conditions of chronic low back pain and radiculopathy to the left leg and chronic bilateral knee pain due to degenerative disc disease.  The MEB recommended his referral to a PEB.  The applicant agreed with the MEB's findings and recommendation and on 19 April 2005 he indicated he did not desire to continue on active duty.

17.  On 29 April 2005, an informal PEB convened at Fort Sam Houston, TX, to consider the applicant's case.  The PEB found he was physically unfit to perform the duties required of his grade and specialty by reason of chronic back pain and chronic bilateral knee pain.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and recommended a 10 percent (%) disability rating percentage for code 5243 (chronic back pain) and 10% for codes 5099/5003 (chronic bilateral knee pain) and his separation with entitlement to severance pay.  The PEB also indicated he applied for continuance on active duty.

18.  His records show at some point during his medical processing, he submitted an application for active duty.  The undated application shows he volunteered to enter active duty for a period of 2 years during December 2005, January 2006, or February 2006.

19.  On 10 May 2005, he indicated that he did not concur with the findings and recommendation of the PEB, but waived his right to a formal hearing and elected to submit a written appeal.  A copy of his written appeal is not available for review with this case.

20.  On 12 May 2005, by memorandum, he was notified that after careful consideration, the PEB found no change to the original findings was warranted.  His written rebuttal contained no new objective medical or performance evidence that would have warranted a change to the disability rating.

21.  On 14 July 2005, Headquarters, 81st Regional Readiness Command, Birmingham, AL, published Orders 05-195-00029, releasing him from his unit of assignment and transferring him to the Retired Reserve by reason of being medically disqualified.

22.  On 23 January 2006, he submitted another application for active duty, wherein he volunteered to enter active duty for a period of 1 year during February, March, or April 2006.

23.  On 13 February 2006, the Surgeon General determined the applicant failed to meet recall standards.

24.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for MEB's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

25.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show he was REFRAD by reason of service-connected disabilities.

2.  The evidence of record shows the applicant suffered an in line of duty injury in Kuwait.  He was initially treated with medications and he was issued temporary physical profiles.  Nevertheless, he was capable of performing his duties and completing his tour and even executed an indefinite reenlistment while deployed. His temporary profiles neither affected his duty assignment nor stopped his reenlistment.  His active duty service was not terminated because of any physical condition.

3.  The applicant’s records clearly show he was fully fit for duty as evidenced in his NCOER.  At the time he was REFRAD in April 2004, he had no physical condition that impaired his performance of duty or warranted processing through the PDES.  Even though he had a physical profile, it was temporary in nature and indicated he had a medical condition or physical defect which required certain restrictions in assignment; however, he was physically capable of performing his military duties.  An individual with such designation would have received assignments commensurate with his functional capacity.

4.  Since his medical condition did not affect his ability to perform in his grade and specialty at the time he was REFRAD, there was no reason to refer him to the PDES.  

5.  Nevertheless, it appears that his condition may have worsened or progressed subsequent to his REFRAD.  He underwent a physical examination and he indicated that he felt he was able to perform in his MOS but was unable to do some of the functional activities required of Soldiering.  The attending physician indicated that the applicant had received reasonable medical attention and had reached maximum medical improvement.  His condition seemed stable at a poor level and it did not seem he would be able to return to the required Soldiering activities and it was therefore felt that he did not meet retention standards.  He was recommended for entry into the PDES.

6.  He underwent an MEB which recommended referral to a PEB.  He agreed with this recommendation.  The PEB found his chronic low back pain and knee back pain prevented him from performing his duties and determined that he was physically unfit for further military service.  The PEB recommended his separation with entitlement to severance pay.  He did not concur and submitted a rebuttal.  The PEB considered his rebuttal but found no change to the original findings was warranted.  He was ultimately retired and transferred to the Retired Reserve by reason of being medically disqualified.

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)                                         AR20100007329



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (con