IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100009128 


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 records be corrected to show he was retired by reason of physical disability from the United States Army Reserve (USAR) with entitlement to associated benefits.

2.  The applicant states the Federal Strategic Health Alliance (FEDS-HEAL) administrator suggested to his unit that he was an “unfit Soldier.”  However, his unit failed to discharge him as disabled with retirement.  He states he served 
17 years of total combined service.

3.  The applicant states he suffers from several conditions which rendered him unfit.  He states in a deliberate disregard of their legal obligation his unit did not send him to a medical board and his conditions were not rated in spite of being found unfit for continued military service due to these disabilities while serving the Army.  He states as a result of the deliberate failure to comply with applicable laws, he has been deprived of the medical and financial benefits to which he is entitled under the law.

4.  He lists the following as his medical conditions:

* Bipolar
* Depression
* Tendonitis in feet
* Increased trauma to knees, shoulders, thumbs,
* Overweight without medical board findings

5.  In addition to the FEDS-HEAL document, the applicant also provides the following:

* 1991 Army National Guard Annual Retirement Points Statement
* Multiple copies of his Body Fat Content Worksheets dated between 1999 and February 2006
* January 2000 statement of medical examination and duty status
* January 2000 individual sick slip
* Various orders (including reassignment and promotion) associated with his military service
* Various Physical Profile forms dated between June 2003 and April 2004
* Multiple DA Forms 268 (Report of Suspension of Favorable Personnel Actions (FLAG)) dated between August 2003 and May 2006 placing him on and removing him from the weight control program
* November 2003 Report of Medical History
* Two memoranda referring the applicant to a Medical Evaluation Board/Physical Evaluation Board (MEB/PEB) dated March and May 2004
* Various Reenlistment Eligibility Worksheets and service extension documents dated between July 2004 and August 2006
* A 21 July 2004 statement from a Department of Veterans Affairs staff physician listing the applicant’s medical conditions and active pharmacy prescriptions
* A 12 October 2004 Fit for Duty Evaluation
* Orders appointing various officers to conduct a formal line of duty (LOD) investigation into the applicant’s medical condition
* A 14 March 2005 letter assigning him back to his unit from the Trainee, Transient, Holdee, and Student account
* A 30 March 2005 unsigned memorandum from his unit commander to the President, PEB
* A 26 June 2005 Developmental Counseling Form
* A copy of a 25 June 2006 email from his unit Senior Health Care NCO/Health Readiness Coordinator
* A 23 January 2007 memorandum recommending that he be seen by a Medical Review Board to determine eligibility to remain in service
* Discharge orders

CONSIDERATION OF EVIDENCE:

1.  The available evidence indicates the applicant initially entered the Army National Guard in September 1989.  By September 1991, according to information reflected on his Army National Guard Annual Retirement Points Statement he had accumulated 2 years of creditable service towards retired pay at age 60.  Between 1992 and 1998 the applicant served on active duty as a Regular Army enlisted Soldier.  Following his release from active duty he enlisted in the USAR.

2.  A September 1999 Body Fat Content Worksheet indicated the applicant was in compliance with Army weight standards based on the fact his body fat was measured at 21.63% against an Army standard of 22%.

3.  Included with documents provided by the applicant was an incomplete Statement of Medical Examination and Duty Status form which noted the applicant was seen as an outpatient at a Veterans Affairs Medical Center in Texas on 22 January 2000 for recurring tendonitis in both feet.  The form does not indicate whether the medical condition was determined to have been incurred in the LOD or not.

4.  In July and November 2000, the applicant was again found to be in compliance with Army weight standards when his body fat was determined to be within Army standards.

5.  In February 2003, the applicant was promoted to the rank of Sergeant First Class.

6.  By June 2003, documents provided by the applicant indicate he was issued a permanent physical profile (P-3 for upper extremities and P-2 for lower extremities) based on his bilateral shoulder instability, bilateral tendonitis right knees, and a thumb injury.  In September 2003 this profile was revised to reflect a permanent P-2 for both upper and lower extremities based on tendonitis of the knees and shoulders.  There were no documents in available records or provided by the applicant which indicated the source of his medical conditions or if they were incurred in the LOD.

7.  On 16 July 2003, his records were flagged when he was placed in the Army’s weight control program.  It is unclear if or when he was removed from the program because by 5 October 2003 his records were once again flagged when his body fat exceeded Army standards.

8.  The applicant provided a Report of Medical History which he completed as part of a 22 November 2003 examination conducted at the Houston VA Medical Center to determine his fitness for retention.  In that report of medical history, the applicant indicated he suffered from a multitude of aliments.  The actual examination, completed by the examining physician, was not included in the documents provided by the applicant.

9.  A 28 January 2004 memorandum, addressed to the applicant’s commander, does note the applicant was determined to be physically fit for retention although he did have one abnormal lab finding which showed blood in his urine.

10.  On 6 March 2004, the applicant’s physical profile was once again revised to show P-4s for both upper and lower extremities and a P-2 for his psychological health (2-4-4-1-1-2).  The revised profile resulted from bilateral arthritis in his knees, shoulders, and hands; bipolar disorder; and skin irritation from a razor.  Again there were no medical documents available to show the source of any of the applicant’s medical conditions.

11.  On 16 May 2004, a memorandum was dispatched from the applicant’s unit to the Commander, Brooke Army Medical Center requesting a “completion of a formal medical investigation.”  The memorandum noted the applicant’s medical conditions (which resulted in his March 2004 revised physical profile) may preclude performance of duties associated with his military occupational specialty (MOS).

12.  The applicant was permitted to extend his USAR enlistment for a period of 12 months on 7 August 2004 thereby establishing his scheduled separation date as 19 August 2005.  The applicant’s extension worksheet contains the notation “Soldier is awaiting PD [physical disability] Med [medical] Board.”

13.  In September 2004, an individual at the Houston VA Medical Center noted the applicant was seen at the Prime Care Clinic on 15 September 2004 and he was precluded from running, doing pushups or sit-ups, or prolonged walking.  A handwritten note on the bottom of the document suggests the applicant “be seen by Medical Review Board to determine eligibility to remain in service.”  

14.  Orders were issued authorizing the applicant to proceed on temporary duty to Fort Sam Houston, Texas on 11 October 2004 to undergo a physical examination.  A statement issued by Brooke Army Medical Center on 12 October 2004 noted the applicant did not meet retention standards but there was no LOD “currently present”; therefore, the applicant was referred to his Reserve channels for retention determination and disposition.  

15.  On 4 January 2005, the applicant’s unit commander appointed an officer to conduct a formal investigation LOD into the medical condition of the applicant.  The investigating officer was to make findings as to whether the injuries or illnesses were valid and if they occurred during active duty, annual training, or drill.

16.  By March 2005, the applicant had been reassigned from his troop program unit (TPU) in Texas to the Trainee, Transient, Holdee, and Student (TTHS) Account in Arkansas.  The basis for the reassignment was noted as involuntary for the convenience of the government.

17.  In June 2005, the applicant was permitted to extend his enlistment for another additional year thereby establishing his next scheduled separation date as 19 August 2006.  This extension document indicated the applicant was in the overweight program and could only do an extension.  There was no mention of his medical condition, although the document did state the applicant was attending battle assemblies for retirement points.

18.  In August 2005, a new LOD investigating officer was appointed.

19.  In November 2005, the applicant was reassigned back to his original TPU unit in Texas.

20.  In December 2005, a third LOD investigating officer was appointed, although this appointment document did not identify the name of the investigating officer.

21.  The applicant continued to move in and out of the Army’s weight control program.  However, by May 2006 documents provided by him indicate his flag was lifted and in June 2006 he was, once again, reassigned from his TPU in Texas to the TTHS Account in Little Rock, Arkansas.

22.  On 17 August 2006, the applicant extended his USAR enlistment for an additional 6 months, which established his scheduled separation date as 
19 February 2007.

23.  A 23 January 2007 memorandum signed by the commander of the applicant’s USAR unit in Texas and addressed to the NDR/PEB suggested the applicant was to be seen by a Medical Review Board to determine eligibility to remain in the service.  The memorandum noted the applicant had not taken a physical fitness test since September 2004 because a medical doctor stated the applicant had a permanent P-4 profile and was unable to participate in physical fitness testing until evaluated by orthopedics.  This same physician suggested the applicant be seen by a Medical Review Board to determine eligibility to remain in the service.

24.  On 18 April 2007, orders were issued honorably discharging the applicant on his scheduled separation date (19 February 2007).  The authority for his separation was listed only as Army Regulation 135-178 (Reserve Component Enlisted Separations).
25.  According to a 21 October 2006 Chronological Statement of Retirement Points, as of 6 January 2006 the applicant had accumulated 14 years of creditable service towards retirement at age 60.  He had not completed a qualifying year of service since 6 January 2004.

26.  Other than the weight control documents and his various physical profiles, there were no medical records available for review.

27.  References:

   a.  Army Regulation 135-178 states that Soldiers will be discharged from the Army upon expiration of the later of the term of contractual service or the statutory Military Service Obligation (MSO).  A person whose initial entry into military service was on or after 1 June 1984 incurred a MSO of 8 years in the military service.

   b.  Army Regulation 635-40 ( Physical Evaluation for Retention, Retirement, or Separation) states in order for Soldiers of the Reserve Component (RC) to be compensated for disabilities incurred while performing duty for 30 days or less, to include Inactive Duty for Training (IDT), there must be a determination by the PEB that the unfitting condition was the proximate result of performing duty.  This determination is different from an LOD determination which establishes whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a causal relationship between the disability and the required military duty.

   c.  Army Regulation 635-40 also states a member of the RC may be separated with severance pay if:

       (1)  His or her disability is rated at less than 30 percent.

       (2)  He or she has less than 20 years of service as defined in 10 USC 1208.  (RC Soldiers not on extended active duty under 10 USC 12733 for computations).

       (3)  Their disability occurred in the line of duty and is the proximate result of performing active duty or IDT.

   d.  Army Regulation 635-40 also states RC Soldiers will be separated without benefits in the following situations:

       (1)  The unfitting condition results from injury which is due to intentional misconduct or willful neglect.

       (2)  The disability was incurred during a period of unauthorized absence.

       (3)  The disability was not incurred or aggravated as the proximate result of performing duty.

DISCUSSION AND CONCLUSIONS:

1.  The documents which the applicant provided do suggest his unit was attempting to secure an LOD report to establish the source of his medical condition and to determine if they were incurred in the LOD.  The documents also show his unit may have been attempting to ensure he was referred for disability processing if appropriate as noted in the January 2007 memorandum to the NDR/PEB.  The fact the applicant was discharged on his scheduled separation date could suggest his unit ultimately determined his medical conditions were not incurred in the LOD and as such disposition through medical channels was precluded.

2.  It does appear, based on the available evidence, that the applicant may have had disabilities which rendered him unfit for continued service.  However, unfortunately in the absence of any medical documentation or records which confirm the source of the applicant’s ailments, there is no basis to conclude the applicant should have been medically retired from the military as a result of those ailments. 

3.  If the applicant’s conditions were not incurred or aggravated as the proximate result of performing his military duties he would not have been eligible for disability separation or retirement but could have been discharged for failing to meet medical retention standards without entitlement to any compensation or benefits.

4.  While the applicant may have been affiliated with the military in one component or the other since 1989, his October 2006 Chronological Statement of Retirement Points indicates he had only 14 years of qualifying service for retirement.

5.  In view of the foregoing, 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)                                         AR20100009128



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ABCMR Record of Proceedings (cont)                                         AR20100009128



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