IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100018157 


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, a disability rating for combat-related conditions.  

2.  The applicant states he has sufficient service to qualify for retirement benefits under chapter 61 as it applies to combat service-connected disabilities.  He was transferred to the Retired Reserve due to medical disqualification for conditions that occurred while in combat on active duty.  He was not given a disability rating for the conditions that resulted in the medical retirement.  He adds that he was somewhat forced into retirement.  During mobilization, his knee and back problems were not addressed.  Upon return, his knee was operated on and he had sleep apnea.  His shoulder issue was also not addressed until he was no longer able to hold his arms above his head.  He has not been allowed to draw full retirement pay.  

3.  The applicant provides the following documents:

* DA Form 2173 (Statement of Medical Examination and Duty Status)
* U.S. Department of Labor Certification of Health Care Provider for Employee's Serious Health Condition
* Letter from the Department of the Air Force Physical Disability Board of Review
* VA Form 3288 (Request for and Consent to Release of Information from Individual's Records)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter from a medical doctor
* Memorandum of Medical Disqualification for Retention
* Medical Duty Review Board Validation/Patient Partial Mobilization Screening Checklist
* DA Form 3349 (Physical Profile)

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 was born on 19 February 1966.  He enlisted in the North Carolina Army National Guard (NCARNG) on 7 June 1989 and held military occupational specialty (MOS) 13B (Cannon Crewmember).  He served through multiple extensions in the ARNG and attained the rank/grade of sergeant (SGT)/E-5.

3.  On 1 October 2003, he was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 28 February to 28 December 2004.  

4.  On 11 February 2005, he was honorably released from active duty to the control of his ARNG unit.  The DD Form 214 he was issued shows he was released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 4, due to completion of required active service.

5.  On 6 April 2006, he underwent a periodic physical examination.  He complained of shoulder and elbow pain, lower back ache, tingling and numbness in his heel, toe nail fungus, right knee aches, and heart burn.  The attending physician noted the complaints but determined the applicant was qualified for service.  

6.  On 13 May 2008, he was issued a physical profile for chronic low back pain, right knee pain, and arthritis.  The profile allowed him to attend drills but restricted field duty or strenuous or stressful activities.

7.  On 15 May 2008, a NCARNG medical officer reviewed an MOS Medical Retention Board (MMRB) packet on the applicant.  The review revealed he no longer met the standards for retention based on chronic low back pain, and right knee pain, arthritis, in accordance with chapter 3, paragraphs 14b and 39h, of Army Regulation 40-501 (Standards of Medical Fitness).

8.  On 18 August 2008, by memorandum, the NCARNG notified that applicant that the State Surgeon reviewed his medical records for retention and determined he no longer met Army standards for retention based on his medical condition of chronic low back pain, and right knee pain, arthritis.  He was counseled regarding his options as follows:

   a.  Discharge from the ARNG.
   
   b.  Transfer to the Retired Reserve (must have at least 15 years of qualifying service for retirement).
   
   c.  Request a non-duty related physical evaluation board (NDR-PEB).

9.  He elected to transfer to the Retired Reserve.  He acknowledged that his transfer did not entitle him to pay or allowances unless he was otherwise entitled by law until age 60.

10.  He was honorably discharged from the ARNG on 19 August 2008 by reason of medical disqualification in accordance with paragraph 8-35I(8) of National Guard Regulation 600-200 (Enlisted Personnel Management) and he was transferred to the Retired Reserve.

11.  On 7 March 2009, the NCARNG issued the applicant a Notification for Eligibility for Retired Pay at Age 60 with 15 Years of service.  

12.  He submitted:

	a.  DA Form 2173, dated 6 January 2005, signed by a physician's assistant that shows he developed chronic low back pain, bilateral left knee pain, and bilateral shoulder pain shortly after starting deployment.  However, this form is not completed or signed by the unit commander and the line of duty determination block contains no entries.  

	b.  Department of Labor Certification of Health Care Provider for Employee's Serious Health Condition, dated 2 November 2009, wherein he listed the medical conditions of back pain that occurred between 1 October 2003 and 11 February 2005 and his doctor certified he has a pinched nerve in the lower back.

	c.  A letter, dated 6 January 2009, from a doctor states the applicant's medical chart shows he was suspected to have sleep apnea during his visit to another doctor in May 2005.  However, no sleep study was conducted until 2006 and he was diagnosed with sleep apnea.  This doctor opines the applicant may have had underlying undiagnosed sleep apnea in 2005 or even prior to 2005.

	d.  A Medical Consultation Note, dated 27 March 2007, regarding his sleep disorder. 

	e.  Various medical documents, dated between 2009 and 2010, that show his diagnosis of wrist pain, low back pain, and moderate degenerative disc disease.

13.  An advisory opinion was obtained on 11 February 2011 from the National Guard Bureau in the processing of this case.  An official recommended disapproval of the applicant's request.  He stated:

	a.  There is insufficient evidence to change the applicant's retirement to a physical disability retirement for injuries incurred in combat.  He was correctly retired with a 15-year letter on 19 August 2008.

	b.  He went before a State Medical Review Board and he was notified of his disqualification.  He no longer met medical retention standards based on his current medical condition.  He elected to transfer to the Retired Reserve and he was counseled that this transfer did not entitle him to retired pay unless otherwise entitled by law at age 60.

	c.  He did not prove or demonstrate that the Army made an error in processing his case or that he had combat-related injuries while on active duty.

14.  He was provided a copy of this advisory opinion but he did not respond.

15.  Title 10, U.S. Code, section 12731b states, in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 medical evaluation boards (MEB), 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 physical evaluation board:

	a.  Paragraph 8-2 states Soldiers of the RC are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.  

	b.  Paragraph 8-6 states when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation.

	c.  Paragraph 8-9 states a Soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc.

17.  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 rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was mobilized and entered active duty on 1 October 2003.  He served in Iraq from 28 February to 28 December 2004.  There is insufficient evidence that shows he suffered an injury or an illness while on active duty that would have required his entry into the PDES.  The available evidence shows his active duty service was not terminated because of any physical condition.  At the time he was released from active duty, he had no physical condition that impaired his performance of duty or warranted processing through the PDES. 

2.  Although he submitted a DA Form 2173 signed by a physician's assistant that shows he developed chronic low back pain, bilateral left knee pain, and bilateral shoulder pain shortly after deployment this form is not completed or signed by the unit commander.  Most importantly, the line of duty determination block contains no entry.  But even if did suffer the listed conditions at the time, there is no evidence these conditions rendered him unfit for retention.

3.  On the contrary, the evidence of records shows he continued his service in Iraq during mobilization and continued to drill with his ARNG unit after his honorable release from active duty in 2004.  He also underwent a medical examination in April 2006 that determined he was medically fit for retention.  This was over a year after he was released from active duty.  

4.  In May 2008, he was issued a physical profile that led to a determination of medical unfitness.  A review of his medical records determined he was disqualified for retention in the ARNG due to his back and knee pain.  There is no evidence to show his sleep apnea or shoulder condition rendered him unfit for retention.  In addition, there is no evidence of record and he provided no evidence to show any of his medical conditions were incurred while he was on active duty or otherwise entitled to basic pay.  He was properly counseled and he was given several options, as required by the regulation at the time.  He elected to transfer to the Retired Reserve. 

5.  His ARNG medical processing was conducted to standard and his rights were fully protected throughout the medical process.  He has not shown error or injustice or provided sufficient evidence to be granted a disability rating.  Therefore, he is not entitled to the requested relief.

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)                                         AR20100018157



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ABCMR Record of Proceedings (cont)                                         AR20100018157



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