IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100019791 


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, that his administrative discharge from the District of Columbia Army National Guard (DCARNG) be voided and that he instead be medically discharged or retired by reason of physical disability.

2.  The applicant states, in effect, that his administrative discharge was unjust because he suffered from medical conditions that should have been evaluated through the physical disability system instead of being reviewed by a Qualitative Retention Board (QRB) and subsequently being discharged.

3.  The applicant provides:

* a copy of a letter from the applicant to the Commanding General of the DCARNG, dated 8 December 2009, requesting a stay in the QRB proceedings and contending that the QRB action was improper and an abuse of process.
* a copy of a letter to his Congressional representative
* a copy of a letter from the Commanding General of the DCARNG to his Congressional representative
* a copy of his QRB notification
* copies of developmental counseling forms
* a copy of his physical profiles
* Email conversations
* documents from the Department of Veterans Affairs and the National Guard Bureau (NGB)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the DCARNG on 30 April 1974.  He completed his training at Fort Jackson, South Carolina, and returned to his DCARNG unit where he remained through a series of continuous reenlistments.  He was promoted to pay grade E-7 on 15 February 2008.  On 22 April 2009, he extended his enlistment for a period of 1 year.  His expiration of term of service (ETS) was changed to 28 April 2010.

2.  On 18 June 2009 a memorandum was dispatched by the DCARNG notifying the applicant that he had been nonselected for continued unit participation by a Qualitative Retention Board (QRB) and would be discharged from the DCARNG no later than 18 January 2010 and transferred to the U.S. Army Reserve (USAR).

3.  The applicant provides a DA Form 4856 (Developmental Counseling Form) showing he was being processed through a fit-for-duty (FFD) board since July 2009 and was trying to obtain information regarding medical retirement.

4.  On 19 July 2009, the applicant was counseled because he was identified as being medically non-deployable during a recent mobilization and would be scheduled for an FFD evaluation and medical evaluation board (MEB).

5.  The applicant's records do not contain any indication that an FFD or MEB was conducted.

6.  On 18 January 2010, the applicant was discharged from the DCARNG and was transferred to the USAR Control Group (Retired Reserve).

7.  In the processing of this application a staff advisory opinion was obtained from NGB which opines that the applicant's medical records should be referred to a Military Occupational Specialty Medical Review Board (MMRB) and then through the Physical Disability Evaluation System (PDES) before a determination is made on his discharge.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTF's) who are treating Soldiers may initiate action to evaluate the Soldier's physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.

9.  Army Regulation 635-40 states that MEB's 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  Prior to the applicant's discharge from the DCARNG, the applicant was being processed for an FFD board and possible processing under the PDES.  However, there is no evidence in the available records to show the process was ever completed or that he was subsequently determined to be fit for duty.

2.  While the Board will not attempt to determine if any of the applicant's conditions warrant a disability rating, which essentially denies the applicant's request to be retired by reason of a disability rating, the Board will attempt to correct the injustice done to the applicant by affording him an opportunity to be properly evaluated by appropriate medical personnel and systems designed to determine the degree of disability a Soldier may have prior to separation.

3.  Accordingly, the Board directs that the Department of the Army Office of the Surgeon General (OTSG) take appropriate action to issue the applicant invitational travel orders for the purpose of undergoing the appropriate medical processing and evaluations at an appropriate medical facility that has the capability to properly evaluate the applicant's medical condition.

4.  Once a determination has been made as to the appropriate disposition of the applicant's medical condition under the PDES, the applicant will be separated in accordance with the applicable laws and regulations with entitlement to any pay and allowances due him.

5.  In the event that a determination is made that the applicant should have been discharged under the PDES, these proceedings will serve as the authority to void his original discharge and to issue the appropriate separation retroactive to his original discharge date.



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 that all Department of the Army records of the individual concerned be corrected by the OTSG contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant.  In the event the applicant requires an MEB and PEB, the applicant will be afforded all of the benefits normally afforded to individuals on active duty who are undergoing an MEB and/or PEB.  Should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his administrative discharge and to issue him the appropriate separation retroactive to his original separation date with entitlement to any pay and allowances, less any entitlements already received.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to voiding his discharge and granting him a medical retirement without undergoing evaluation under the PDES.



      ____________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)                                         AR20100028730



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ABCMR Record of Proceedings (cont)                                         AR20100019791



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