IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100020218 


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, voidance of his release from active duty (REFRAD) and subsequent discharge from the Puerto Rico Army National Guard (PRARNG) and processing through the Physical Disability Evaluation System (PDES) in accordance with Army Regulation 600-60 (Physical Performance Evaluation System).

2.  The applicant states that the PRARNG discharged him through a “Fit for Duty Determination” which did not allow him to undergo the due process through the PDES.  He further states that he was declared unfit for retention for a condition that was incurred and aggravated on active duty in support of Operation Noble Eagle; however, he was unjustly discharged without due process because he was not afforded proper medical processing for a medical condition that was caused by his active duty service.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his discharge orders from the PRARNG
* a DA Form 2173 (Statement of Medical Examination and Duty Status)
* a Standard Form (SF) 600 (Chronological Record of Medical Care)
* his mobilization orders
* a PRARNG Fit for Duty Determination Board (FFDDB)
* REFRAD orders


* his DA Form 3348 (Physical Profile)
* a DA Form 7349 (Initial Medical Review - Annual Medical Certificate)
* a DD Form 2796 (Post-Deployment Health Assessment)

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 enlisted in the PRARNG on 24 June 1997 for a period of
8 years in the pay grade of E-4.  He completed his training as a radio repairer and he continued to serve in the PRARNG.

3.  On 21 February 2003 he was ordered to active duty in support of Operation Noble Eagle for a period not to exceed 365 days.

4.  On 10 June 2003 the applicant was treated for low back pain for an injury that occurred on 5 June 2003 when he attempted to stop a box from falling off a forklift that was too heavy.  A formal line-of-duty (LOD) investigation was not conducted and it was determined to be in the line of duty.

5.  On 31 August 2003 the applicant was REFRAD due to completion of required service and he was returned to his PRARNG unit.  He had served 6 months and 10 days of total active service during this mobilization.

6.  On 9 April 2005 the applicant underwent a medical review and the examining physician indicated that the applicant had disc herniation of L4-L5 vertebrates and he was undergoing treatment at the Department of Veterans Affairs.  He deemed the applicant unfit.

7.  On 5 July 2005 a PRARNG FFDDB determined that the applicant would be discharged from the PRARNG effective 11 July 2005 due to medical unfitness.

8.  Accordingly, the applicant was discharged from the PRARNG on 11 July 2005 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), due to medical unfitness.

9.  In the processing of this case, on 4 March 2011, an advisory opinion was obtained from the National Guard Bureau (NGB), Chief, Personnel Policy Division.  The advisory official opines that the applicant should have been afforded the opportunity to appear before a military occupational specialty (MOS) Medical Review Board (MMRB) and then referred to the PDES for evaluation by a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB), if deemed necessary.  The advisory official stated there is no evidence to show that the applicant was afforded appropriate procedural rights and recommended that relief be granted in his case.

10.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 17 March 2011, by email, the applicant concurred with the advisory opinion as written.

11.  National Guard Regulation 600-200, paragraph 8-26 j(1) provides, in pertinent part, that commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination.  Commanders who do not recommend retention will request the Soldier’s discharge.

12.  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 (MTFs) 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. 

13.  Army Regulation 635-40 states that MEBs 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.  Given the evidence provided by the applicant and the advisory opinion from the NGB, it appears that action should have been initiated by the MTF to evaluate the applicant’s medical condition before administrative separation proceedings were finalized.

2.  To determine if any of the applicant’s conditions warrant a disability rating, the applicant should be afforded the 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 Department of the Army Office of the Surgeon General should 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 all back 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 separation date.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 Office of the Surgeon General 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 that the applicant requires a medical evaluation board and physical evaluation board, the applicant will be afforded all of the benefits normally afforded individuals on active duty who are undergoing a medical evaluation board and/or a physical evaluation board.  Should a determination be made that the applicant should have been separated under the Physical Disability Evaluation System, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances, less any entitlements already received. 

2.  The Board further determined that 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 release from active duty and discharge without undergoing evaluation under the physical disability evaluation system.



      __________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)                                         AR20100020218



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100020218



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1