IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100008520 


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 discharge from the U.S. Army Reserve (USAR) be changed to a medical retirement.  

2.  The applicant states he should have received a permanent disability retirement; however, he was not processed through a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) even though he repeatedly requested access to both.

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

* A Memorandum, subject:  Notification for MEB, dated 22 July 2005
* A Memorandum, subject:  Medical Disqualification Review for the applicant, dated 22 July 2005
* Reassignment orders, dated 9 March 2009
* Two DA Forms 3349 (Physical Profile)
* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 7349 (Initial Medical Review – Annual Medical Certificate)
* Letter from the Department of Veterans Affairs (VA) 
* Chronological Statement of Retirement Points

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 29 September 1997 after completing prior service in the Regular Army.  

2.  He was ordered to active duty from 28 January 2003 to 20 October 2004 in support of Operation Enduring Freedom.  

3.  A memorandum for the Commander, 268th Command Training Center, 65th Regional Readiness Command, dated 22 July 2005 shows the commander was informed the applicant was medically disqualified for retention in the USAR due to back pain and left ankle pain.

4.  On 18 October 2005, the applicant was given a permanent profile for left ankle arthritic pain [serial to parallel] fracture repair with a physical profile of 114111.  The profiling officer listed the applicant’s limitations as limited marching in combat boots, field gear marching, ruck marching, and lifting and carrying.  

5.  A VA letter, dated 8 August 2007, indicates the applicant was in receipt of disability compensation for service-connected disability rated at 30 percent.  

6.  On 7 October 2007, the applicant completed a DA Form 7349 and indicated he had a herniated disk, left ankle fracture, torn meniscus [cartilage] in his right knee, lower back pain, knee pain, and pain in his shoulder joints.  The examining physician indicated the applicant was unfit for retention in the USAR with a physical profile of 413114.

7.  On 19 October 2007, the applicant was given a permanent profile for chronic back pain, ankle, knee pain, and depression with a physical profile of 113113.  The profiling officer indicated the applicant failed to meet medical standards in accordance with Army Regulation 40-501, paragraphs 3-13(d)2, 3-29(h), and 
3-32(b), and an MEB was required.  

8.  In a 19 October 2007 memorandum, the Command Surgeon at the Army Reserve Medical Command notified the applicant that he must be further evaluated by an MEB in accordance with Army Regulation 40-501, chapter 3.  In part, the memorandum informed the applicant that he must have an approved line of duty (LOD) if he elected to go before an MEB.  The applicant’s service record does not indicate an LOD was completed for his medical conditions.  

9.  On 11 July 2008, the applicant was given a permanent profile for chronic low back pain, chronic right ankle pain, chronic left knee pain, hypertension 
(controlled with medications), and depression (on medication) with a physical profile of 113113 (it was noted that this profile superseded any previously-issued 


profiles).  The profiling officer indicated the applicant required an MEB in accordance with Army Regulation 40-501, paragraphs 3-13(d)2 (chronic right ankle and left knee pain), 3-32 (depression), and 3-39(h) (chronic low back pain).

10.  The applicant’s Chronological Statement of Retirement Points shows he completed 20 years of qualifying service for retired pay at age 60.  

11.  Orders published on 9 March 2009 reassigned the applicant to the Retired Reserve effective 8 April 2009 by reason of completion of 20 or more years of qualifying service for retired pay at age 60.  

12.  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 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.  

13.  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.

14.  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 contends he was not processed through an MEB or PEB and he should have received a permanent disability retirement.  However, the evidence of record does not indicate that an error or injustice exists in this case.  



2.  In October 2007, the applicant was given a permanent profile of 113113 for chronic back, ankle and knee pain, and depression.  The profiling officer determined the applicant failed to meet medical standards in accordance with Army Regulation 40-501, paragraphs 3-13(d)2, 3-29(h), and 3-32(b) and an MEB was required.  

3.  The Army Reserve Medical Command notified the applicant that he must be further evaluated by an MEB in accordance with Army Regulation 40-501, chapter 3 and he must have an approved LOD to go before a MEB.  However, his service record does not show an LOD was completed.  

4.  The applicant was given a subsequent permanent profile of 113113 for chronic low back pain, chronic right ankle pain, chronic left knee pain, hypertension (that was controlled with medications), and depression for which he was taking medication.  It was noted that this profile superseded all previously issued profiles.  The profiling officer again determined the applicant required an MEB.  

5.  In the absence of evidence to the contrary, it is presumed the applicant did not follow through with his unit on the Command Surgeon's request that he obtain an approved LOD if he elected to go to an MEB.  It is further presumed that he instead voluntarily elected transfer to the Retired Reserve.  Absent evidence that his medical conditions were incurred while he was entitled to basic pay or were the proximate cause of performing active duty or inactive duty training, he would not have been eligible for consideration by an MEB/PEB and thus not eligible for a medical retirement.

6.  Therefore, there is no basis for granting the applicant’s request for a medical retirement. 
 
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)                                         AR20100008520



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)