BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100016007 


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 the Puerto Rico Army National Guard (PRARNG) complete a line-of-duty (LOD) investigation for the conditions used as the reason for his separation and reinstate him in order to be afforded due process.

2.  The applicant states, in effect, he received complex medical care while he was serving on active duty under Title 10 from 14 February 2003 to 23 December 2003.  Following his release from active duty (REFRAD), the PRARNG found him unfit for retention and separated him in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), and chapter 7 of Army Regulation 40-400 (Patient Administration).  He was not afforded the opportunity for due process through the Physical Disability Evaluation System (PDES) which precluded him from being evaluated by the PDES for proper disposition and eligibility for disability and compensation benefits.  After 14 years of service, he lost his military career as a result of his medical condition which clearly appeared while he was serving our Nation on active duty.  PRARNG used his 50-percent Department of Veterans Affairs (VA) compensation as the main reason for separating him.  VA granted him compensation for the conditions incurred on his active duty mobilization.

3.  The applicant provides:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* NGB Form 23B (ARNG Retirement Points History Statement)
* PRARNG memorandum, subject:  PRARNG Fit for Duty Determination (FFDDB) Acknowledgement Statement
* National Guard Regulation (NGR) Form 40-501 (Annual Medical Certification)
* DA Form 7349 (Initial Medical Review – Annual Medical Certificate)
* DA Form 3349 (Physical Profile)
* two orders
* 32 pages of medical records

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 enlisted in the PRARNG on 7 March 1991 and held military occupational specialty (MOS) 11B (Infantryman).  On 14 February 2003, he was mobilized with his unit at Fort Bragg, NC, in support of Operation Noble Eagle/Operation Enduring Freedom in accordance with Title 10 U.S. Code, section 12302.

3.  He served in Kuwait from 1 April 2003 to 18 September 2003.  During his deployment to Kuwait he served on a security detail and was on temporary duty and/or leave to Greece, Belgium, Germany, Spain, Australia, and Diego Garcia.

4.  While serving aboard a U.S. Naval ship in Diego Garcia, he was seen at the medical clinic for swelling of his left ankle, knee, and leg that was becoming progressively worse.  On 15 August 2003, he was medically evacuated to the U.S. Naval Hospital, Okinawa, Japan, where he was diagnosed with and treated for filariasis (a disease caused by parasites).

5.  In October 2003, he was treated at Womack Army Medical Center, Fort Bragg, NC, for continued problems with swelling of his left leg.  On 24 November 2003, he was seen at the Walter Reed Army Medical Center, Washington, DC, where the doctors determined it was highly unlikely he had filariasis and more likely that he has idiopathic unilateral lymph edema of unknown cause.

6.  On 27 December 2003, he was honorably REFRAD and transferred to the PRARNG.  He completed 10 months and 4 days of creditable active service.

7.  On 20 October 2004, he completed an NGR Form 40-501 wherein he disclosed he was currently receiving VA disability compensation.  The doctor who signed the form checked block 2 (Recommended Action) of this form indicating he was recommending the applicant "to MDRB [Medical Discharge Review Board]."

8.  On 23 November 2004, the applicant was given a permanent physical profile with "3" for "P [pulmonary]" and "4" for "L [lower extremities]."  The doctor that signed the DA Form 3349 also completed block 4a (If a Permanent Profile with a 3 or 4 PULHES, Does the Soldier Meet Retention Standards IAW [in Accordance with] Chapter 3, Army Regulation 40-501?) of this form by annotating "Needs MMRB [MOS Medical Review Board]" and "Needs MEB/PEB [Medical Evaluation Board/Physical Evaluation Board]."

9.  On 23 January 2005, the PRARNG notified the applicant he was being discharged effective 24 January 2005 for medical unfitness due to his permanent physical profile in accordance with Army Regulation 40-501.

10.  On 24 January 2005, he was honorably discharged from the PRARNG by reason of "medically unfit for retention."  The NGB Form 22 he was issued shows he completed 13 years, 10 months, and 18 days of net service with the ARNG.

11.  In a memorandum to the applicant, dated 21 May 2010, subject:  Request for Correction of Erroneous Separation from PRARNG by Medical Reasons, an official from the PRARNG, Joint Forces Headquarters, Deputy Chief of Staff for Personnel, San Juan, PR, states, "After reviewing and conducting detailed research of your case, we agree and recommend approval of your request.  The evidence clearly shows you received complex medical treatment while serving on active duty and the PRARNG failed to complete an LOD and ensure you were referred to the PDES."

12.  On 11 February 2011, an advisory opinion was obtained from the NGB, Chief, Personnel Policy Division.  The advisory official opined, in pertinent part, the following:

	a.  Soldier was administratively discharged in error on 24 Jan 2005.  The State failed to send the Soldier for medical evaluation upon REFRAD.

	b.  The PRARNG should complete a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status); appoint an investigating officer; and enter the case into the LOD module.  Submit applicant's request to NGB-LOD for approval or disapproval.  If approved, recommend that the Soldier's medical records be sent before Mandatory Medical Review Board (MMRB); an MEB for disability evaluation processing; and then be referred to the PEB to determine the Soldier's fitness for consideration for medical discharge.  There appears to have been a failure to complete and/or submit an LOD and ensure that the Soldier was properly referred to the PDES as per Army Regulation 635-40.  There is no evidence that shows that the Soldier was counseled as to his rights to accept referral to MEB/PEB; for purpose of disability benefits determination as a result of a medical recommendation provided by the Fit for Duty Determination Board.  The State supports the Soldier's request to have the LOD completed.

13.  Army Regulation 635-40 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 or her 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 chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

14.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities.  Paragraph 9-12 states that Reserve Component Soldiers with medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA does not have authority or responsibility for determining 


physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he was treated while on active duty for medical problems at Diego Garcia, Okinawa, Fort Bragg, and Washington, DC.  The NGB advisory official opined that prior to the applicant's discharge from the ARNG, he should have been afforded the opportunity to appear before an MMRB at the PRARNG, he did not receive adequate counseling on his right to accept referral to an MEB or a PEB for disability evaluation, and an LOD was not completed.

2.  Therefore, it is recommended that the PRARNG complete an LOD investigation and, if the result warrants it, his records should be further considered for disability processing.  Furthermore, if his injury is determined to be in the LOD and his entry into the PDES as well as consideration by an MEB and a PEB are warranted, he should be reinstated in the ARNG for disability processing.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x___  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends the PRARNG conduct an LOD investigation and if the investigation determines his medical condition was incurred in line of duty, reinstate him into the ARNG for disability processing.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 


denial of so much of the applicant that pertains to reinstatement into the ARNG at this time.



      __________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)                                         AR20100016007



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100016007



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1