IN THE CASE OF:	  

		BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100009063 


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 that she be retired from the Washington Army National Guard (WAARNG) with 15 years of service as of 8 June 2009 for medical reasons and issued a 15-year letter that will allow her to apply for retirement at age 60. 

2.  The applicant states, in effect, that she was unjustly discharged from the WAARNG on 9 June 2009 with 15 years of service, without the benefit of being evaluated under the Physical Disability Evaluation System (PDES).  She goes on to state that her unit was aware of her medical condition and did not process her for medical separation but instead just discharged her due to the expiration of her term of service (ETS), which she was well beyond because of Stop Loss being in effect. 

3.  The applicant provides documents related to her medical condition and her protests through counsel that she was entitled to processing through the PDES rather than being arbitrarily discharged due to ETS.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Board grant the applicant’s request. 

2.  Counsel states, in effect, that Army Regulations require that Soldiers be processed through the PDES when there are medical conditions that prevent them from performing their duties. 

3.  Counsel provides the documents submitted by the applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 13 February 1956.  After having had prior service in the U.S. Navy, she enlisted n the Army National Guard on 30 August 1994.

2.  On 6 September 2003, the applicant was given a permanent (P2) profile due to lumbar disc disease.  

3.  On 3 March 2007, the applicant, a bus driver in her civilian occupation, injured her back when she was bending over to pull a bag out.  She had previously injured her back in December 1999 when she slipped on some ice.  

4.  On or about 3 May 2008, the applicant injured her knee during inactive duty training.

5.  The applicant was serving in the rank of sergeant in the WAARNG on 18 August 2008 when she was ordered to active duty for contingency operations in support of Operation Iraqi Freedom.  She reported to Fort McCoy, Wisconsin.

6.  On 25 August 2008, the Department of Deployment Health Services at Fort McCoy issued a memorandum to the commander regarding the medical disposition of the applicant and indicated that she was identified within the first 25 days while on active duty as having a pre-existing medical condition that rendered her non-deployable and advised the commander to ensure that she received appropriate medical care and follow-up upon return to home station and also indicated that care should result in either a return to duty or PDES processing within 6 months.  The pre-existing medical condition was not identified.

7.  On 9 March 2009, she was issued a temporary profile for a right knee meniscal injury.  The profile directed the applicant to provide documentation to the State Surgeon’s office that included current diagnosis, treatment, any planned future treatment, prognosis and any duty, activity limitations prior to the expiration of the profile.  The profile expired on 7 June 2009 and there is no evidence to show that she complied with the profile instructions.

8.  On 8 June 2009, the applicant was honorably discharged from the WAARNG due to ETS.

9.  On 15 July 2009, the WAARNG approved a line of duty investigation finding the applicant's right knee condition was in the line of duty not due to misconduct or negligence.

10.  The applicant's Army National Guard Retirement Points History Statement shows she had completed 15 years, 11 months, and 3 days of creditable service for retired pay.

11.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB) which opines that the applicant did not provide the documentation needed to process her under the PDES; however, discharging her without a medical evaluation does represent an injustice and the NGB officials opine that she should be afforded disability processing.

12.  The advisory opinion was provided to the applicant for comment and her counsel responded to the effect that the applicant concurred with the opinion with respect to initiating a Medical Evaluation Board (MEB).

13.  On 19 January 2011, the applicant's counsel responded to ex parte communications concerning her case and requested that her initial request, to show she was eligible for a 15-year letter, be considered and approved.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 8, outlines the rules for processing through the disability system Soldiers of the Reserve components who are on active duty for a period of less than 30 days or on inactive duty training.  Referral for processing does not mean an automatic entitlement to disability compensation.  Once referred, a determination must be made whether the disability was the proximate result of performing duty.  Proximate result establishes a casual relationship between the disability and the required military duty.

15.  Title 10. U.S. Code, section 12731b states a member of the Selected Reserve who has completed at least 15, and less than 20, years of qualifying service and who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, and upon the request of the member, may be transferred to the Retired Reserve and treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she was not properly provided medical processing through the PDES prior to her being unjustly discharged.

2.  There is insufficient evidence to show the applicant had an unfitting medical condition that would have qualified for processing through the PDES.  Although she had injured her knee while on inactive duty training and the WAARNG found that the injury was incurred in the line of duty, there is no evidence to show she was unfit to perform her duties because of that condition.  She had received a temporary profile for that condition; there is no evidence to show she ever received a permanent profile for that condition.

3.  In addition, when she was released from active duty for being nondeployable the memorandum that indicated she was nondeployable also indicated that it was a preexisting condition that rendered her nondeployable.  It is more likely that it was her longstanding and civilian-incurred back condition that rendered her nondeployable.

4.  The applicant did have a permanent profile for her back condition, given to her in 2003.  Considering her later back injury in 2007, it is reasonable to presume that her back condition did in fact render her medically unfit for retention in the Selected Reserve.  Since she had completed over 15 years of qualifying service at the time she separated on 8 June 2009, it would be appropriate at this time to show she was separated for being medically unfit for retention.

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 all State Army National Guard and Department of the Army records of the individual concerned be corrected by:

	a.  voiding her 8 June 2009 discharge from the WAARNG due to ETS;

	b.  showing she was discharged from the WAARNG on 8 June 2009 due to being medically unfit for retention on 8 June 2009 and transferred to the Retired Reserve; and

	c.  issuing to her a notification of eligibility for retired pay at age 60 (a 15-year letter).




      _______ _   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)                                         AR20100009063





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ABCMR Record of Proceedings (cont)                                         AR20100009063



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