IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100012221 


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, in effect, correction of his records to show he was retained on active duty for medical retention processing and processed through the Army Physical Disability Evaluation System (PDES) resulting in receipt of a medical retirement.

2.  The applicant states he was separated without optimal hospital and medical treatment and wants this corrected by having his record reevaluated.  He further states his discharge was improperly handled and he was discharged without proper care or explanation by the active duty Medical Readiness Processing Unit (MRPU) and the Hawaii Army National Guard (ARNG).  He states his disability was caused by the military as stated in his line-of-duty (LOD) determinations, he had cause for referral to a medical evaluation board (MEB) and physical evaluation board (PEB), and yet he was released from active duty.

3.  He further states that upon his return to Hawaii and while on active duty he was diagnosed with post-traumatic stress disorder (PTSD) as well as physical ailments and ordered to remain on active duty at the MRPU at Schofield Barracks, Hawaii.  He states he was retained on active duty from March to May 2006 in an MRPU where he received two approved LOD investigations finding that his illnesses and injuries were combat related or aggravated.  One LOD was for PTSD and the second was for his knees.  He states that as soon as he received his LOD determinations he was told he was being released from active duty and to seek further medical treatment from the ARNG and Department of Veterans Affairs (VA).  He states he was told by his chain of command that the Army was expediting his release from active duty because he cost too much.  He states he was informed that the Hawaii ARNG and VA would be taking care of him after he was released from active duty.  He adds that he was told to stop asking questions and that his honorable discharge could be changed easily.  He states he then spent 8 months attempting to get help from the ARNG and was told it was an active duty issue and that he was "out of luck" for having been released from active duty.  He states he requested assistance from the VA and was initially given a 70-percent disability rating.  He states that in 2009 his rating was increased to 80 percent (70 percent for PTSD and 40 percent for physical disability).

4.  The applicant provides:

* Pacific Islands Health Care System Discharge Summary, dated 26 August 2009
* two VA Rating Decision packets
* ARNG Retirement Points History Statement
* DD Form 215 (Correction to DD Form 214), dated 11 August 2008
* Hawaii ARNG Orders 199-007, dated 17 July 2008 (discharge from Hawaii ARNG)
* Hawaii ARNG Orders 199-006, dated 17 July 2008
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 22 November 2007
* letter from applicant requesting transfer to the Inactive National Guard, dated 12 March 2007
* Headquarters, 29th Separate Infantry Brigade, Orders 234-651, dated 22 August 2006
* Hawaii ARNG Permanent Orders 175-018, dated 24 June 2006 (Combat Action Badge) and related documents
* DD Form 214 for the period 16 August 2004 to 17 May 2006
* Directorate of Human Resources, U.S. Army Garrison-Hawaii 
Orders 135-0001, dated 15 May 2006 (release from active duty for Operation Iraqi Freedom (OIF))
* U.S. Army Human Resources Command Orders A-03-605792, dated 10 March 2006 (medical retention processing orders)
* DA Form 4856 (Developmental Counseling Form), dated 8 March 2006
* DA Form 4187 (Personnel Action), dated 15 February 2006
* two DA Forms 2173 (Statement of Medical Examination and Duty Status)
* several Standard Forms 600 (Health Record - Chronological Record of Medical Care)
* two DA Forms 3349 (Physical Profile)
* Hawaii ARNG Permanent Orders 148-015, dated 5 August 2004 (mobilization orders)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 24 February 1995 to 23 February 1998

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 military records show he enlisted in the Regular Army on 24 February 1995.  He completed initial entry training and was awarded the military occupational specialty of combat engineer.  He completed 3 years of active duty and the highest pay grade he held during that period of service was E-3.  He was honorably released from active duty on 23 February 1998.

3.  He enlisted in the Hawaii ARNG on 5 November 1999.

4.  On 16 August 2004, he entered active duty from the Hawaii ARNG in support of OIF.

5.  A Standard Form 600, dated 7 September 2004, shows the applicant complained of chronic knee pain in both knees for 8 years.

6.  A DA Form 3349, dated 30 September 2004, shows he was given a temporary profile for 1 month for right and left knee pain.

7.  His records show he served in Iraq during the period 25 January 2005 through 14 January 2006.

8.  A DA Form 4187, dated 15 February 2006, shows he was attached to an MRPU effective 15 February 2006 for a period of time until the applicant was medically fit for duty.

9.  A DA Form 3349, dated 9 March 2006, shows he was given a temporary profile for PTSD and knee pain.
10.  U.S. Army Human Resources Command Orders A-03-605792, dated 10 March 2006, show he was to be voluntarily retained on active duty and report to the MRPU on 9 March 2006.  The orders state the "service member will be entered into PDES for disability processing at the earliest determination or service member unable to return to full military duty within 1 year of diagnosis of medical condition.  Early separation or release from active duty is required upon completion of medical care and treatment or for separation by reason of physical disability."

11.  A DA Form 2173, dated 14 March 2006, shows the applicant had a temporary disability due to chronic knee pain aggravated by military training and exercises during deployment.

12.  A second DA Form 2173, dated 14 March 2006, shows he had a temporary disability based on a diagnosis of PTSD on 24 January 2006 related to combat exposure in Iraq from January 2005.

13.  Directorate of Human Resources, U.S. Army Garrison-Hawaii, 
Orders 135-0001, dated 15 May 2006, show he was released from active duty for OIF, not by reason of disability, and assigned to the 227th Engineer Company in the Hawaii ARNG effective 17 May 2006.

14.  His DD Form 214 for the period 16 August 2004 to 17 May 2006 shows he served in Iraq during the period 25 January 2005 through 14 January 2006.  This form shows he was honorably released from active duty for completion of required active service.

15.  Hawaii ARNG Permanent Orders 175-018, dated 24 June 2006, awarded him the Combat Action Badge for actively engaging or being engaged by the enemy on 10 December 2005.

16.  A VA Rating Decision, dated 13 November 2006, shows he was granted service connection for PTSD and right knee patellofemoral syndrome effective 18 May 2006.  A VA Rating Decision, dated 29 October 2009, shows his percentage of disability for PTSD was increased.

17.  His NGB Form 22 for the period ending 22 November 2007 shows he was separated from the ARNG due to his expiration of term of service.  Item 26 (Reenlistment Eligibility) of this form shows an RE-1 code which denotes a person who is completing his or her term of service who is considered qualified to reenter the U.S. Army.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It 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 or her office, grade, rank, or rating.  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.

19.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

20.  The medical retention processing program is designed to compassionately evaluate and treat the Reserve Component warriors in transition with an LOD-incurred illness, injury, disease or an aggravated pre-existing medical condition which prevent them from performing the duties required by their military occupational specialty and/or position.  The purpose of medical retention processing is to return Soldiers to duty in their respective Reserve unit as soon as possible.  If a return to duty is not possible, the Soldier is processed through the PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was released from active duty in support of OIF without optimal hospital and medical treatment and that he had cause for referral to an MEB and PEB.  He further contends his discharge was improperly handled and he was discharged without proper care or explanation by the active duty MRPU and the Hawaii ARNG.  However, he provided no evidence to support these contentions.

2.  His DA Forms 2173 show he had a temporary disability due to chronic knee pain aggravated by military training and exercises during deployment and that he was diagnosed with PTSD related to combat exposure in Iraq.  He was never determined to be medically disqualified and there is no evidence he had an unfitting diagnosis that would require an MEB.  Absent an MEB referral to a PEB for an unfitting determination/rating, there is no basis for a disability rating leading to a disability retirement.  Only conditions found unfitting by the PEB are authorized for compensation.  As such, the evidence indicates he was properly released from active duty in support of OIF.

3.  The Army only issues medical retention processing orders when there is documentation to show a Soldier requires continued medical treatment and is unable to perform his or her duties.  It is presumed that competent medical personnel determined he was fit for duty at the time since he was released from active duty from the MRPU.  Additionally, he remained a member of the Hawaii ARNG until his ETS date and at the time of his discharge he was given an RE-1 indicating he was qualified for reenlistment.

4.  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 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)                                         AR20100012221



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ABCMR Record of Proceedings (cont)                                         AR20100012221



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