IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100021010 


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 his military records be corrected to show he was not separated from active duty on 11 June 2009, that he was retained on active duty from that date, and that he remain on active duty until he exhausts his appeals under the Disability Evaluation System (DES).

2.  The applicant states the determination that he was fit for duty and met medical retention standards prior to his separation on 11 June 2009 was in error and unjust because his medical condition had not resolved.  Even though he was not fit for duty and did not meet medical retention standards, he was not referred to the DES while on active duty.  This error was compounded when his application to return to active duty under the Medical Retention Processing 2 (MRP2) Program was denied.

3.  The applicant provides a 26-page brief from counsel with attachments.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's military records be corrected to show he served on active duty from 11 June 2009 through his final disposition in the Physical Disability Evaluation System (PDES), including all appeals; that he be paid all basic pay, allowances, and other entitlements to which he would have been authorized; and that he be granted active duty service credit.

2.  Counsel chronicles the events which transpired in the applicant's case, which includes being ordered to 1-year of active duty for mobilization as a member of his U.S. Army Reserve (USAR) unit, injuring himself on active duty which aggravated a pre-existing back problem, being extended on active duty twice for surgery and convalescence, and his release from active duty.

3.  Counsel describes:

* personality conflicts which may have affected his release from active duty (REFRAD)
* his falling in March 2009 because of numbness in his legs and lower back
* computed tomography (CT) scans showing abnormalities 19 days after he was released from active duty
* his being referred to a physical evaluation board (PEB) within 2 months of being released from active duty
* the denial of his request to be returned to active duty under the MRP2 Program
* the procedures he underwent to manage his pain
* Social Security Administration's August 2009 determination that he was totally and permanently disabled
* a medical evaluation board (MEB) finding him to have continuous back pain, radicular symptoms to both calves, and tingling in his feet in April 2010

4.  Counsel states:

* the applicant was assigned a temporary physical profile of "3" which limited his functional activities
* he continued to experience debilitating pain
* it was said that it would take 18 to 24 months for him to heal
* the evaluation which determined he had been provided maximum benefits and should be discharged to a home exercise program (HEP) was cursory and incomplete
* the concurrence to REFRAD him to home care was by unknown individuals
* his leg numbness caused him to fall which resulted in his transport to shock trauma
* less than 60 days after REFRAD he was determined medically disqualified and referred to an MEB

5.  Counsel argues:

	a.  if the applicant had received a proper evaluation by a medical doctor in March 2009, he would have been retained on active duty and processed through the PDES;
	b.  his unfitness is reinforced by his being found totally and permanently disabled by the Social Security Administration;

	c.  he met all three criteria for being returned to active duty under the MRP2 Program;

	d.  he had an unresolved mobilization-connected medical condition that either was not identified or did not reach optimal medical benefit prior to his REFRAD;

	e.  he was attempting to have his medical condition evaluated for the purpose of initiating an MEB under the PDES;

	f.  the reasons given by the Commanding General (CG), Warrior Transition Command (WTC), for denying his request for MRP2 are "nonsensical and reflect a clear error of judgment."  The CG did not cite any authority for the denial because there isn't any authority; and

	g.  his REFRAD was in violation of governing directives which state that a Reservist will be retained in the Warrior Transition Unit (WTU) until the Soldier's medical condition is resolved and he meets medical retention standards.

6.  Counsel concludes the applicant's REFRAD and his denial to return to active duty under the MRP2 Program resulted in a financial hardship for the applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant was ordered to active duty as a member of his USAR unit in pay grade E-8 on 18 August 2006 for 365 days in support of Operation Enduring Freedom.

2.  On 13 August 2007 (2 days before his active duty orders expired), the applicant was treated for pain in his lower back that radiated to his right leg.  This pain started when he fell down four steps the preceding day.  He reported having landed on his buttocks.  The treating physician noted he had a past history of a discectomy.  He was given a temporary physical profile at that time.  His injury was approved as having been incurred in the line of duty.

3.  On 21 August 2007, orders were published directing the applicant to be retained on active duty for a period of 5 months and 26 days to participate in the Reserve Component medical holdover MRP Program for completion of medical care and treatment.  His active duty was again extended in February 2008, and again in July 2008.  Orders were issued on 19 November 2008 retaining him on active duty for a period of 82 days to participate in the Reserve Component Warriors in Transition MRP Program for completion of medical care and treatment.

4.  He was given several temporary physical profiles.

5.  He had surgery on his back and had continuous treatment for pain.

6.  On 24 February 2009, he reported minimal progress with therapy at Fort Meade, MD, and requested to transfer his treatment to the Walter Reed Army Medical Center (WRAMC).  The individual conducting the examination was a Doctor of Physical Therapy (DPT)/Master of Physical Therapy/Orthopedic Clinical Specialist.  The DPT noted the applicant ambulated to the clinic with no assistive device, but had slow ambulation.  The applicant was able to stand from a sitting position and walk with his hands up high; had flexion of 15 degrees from vertical with back pain only; had good excursion with back pain only; could side bend to joint line bilaterally with no pain on right with left side bending; had 30-40 degree flexibility in his hams and 10 inches in his quadriceps bilaterally.  The DPT assessed the applicant with decreased range of motion, tight muscles, and limited function with pain being an issue.  He gave the applicant a good prognosis for improvement.  The DPT prescribed physical therapy and medication and recommended releasing the applicant from his hospitalized status with physical profile limitations.

7.  On 26 February 2009, x-rays were taken of the applicant's back which demonstrated posterior fusion of L5-S1 with parallel running pedicle screws and intervertebral spacer.  No evidence of fixation device complication or failure was seen.  The remainder vertebral bodies maintained normal height and alignment with disc spaces preserved.  Paravertebral soft tissues were unremarkable.

8.  On 26 February 2009 following therapy, the chief of the Musculoskeletal Clinic at Fort Meade noted the applicant was independent with present outpatient rehabilitation and had maximized benefits with the present supervised rehabilitation.  The chief of the Musculoskeletal Clinic recommended the applicant be discharged from the WTU to his USAR unit with HEP.  The applicant indicated understanding the diagnosis, medication/treatment, and alternatives and expressed reluctance/frustration with the recommended course of action.  The chief of the Musculoskeletal Clinic informed the applicant that his rehabilitation had plateaued and he could continue on his own.  The chief of the Musculoskeletal Clinic discussed the applicant's discharge with the WRAMC Neurosurgery Department which concurred with the plan.

9.  On 13 March 2009, the applicant discussed his discharge and HEP with the WRAMC Neurosurgical Clinic spine surgeon who informed him there was no reason he couldn't be released to his USAR unit.  In response to the applicant's question about an MEB, the surgeon stated that it was hard to determine whether an MEB would be necessary since it can take up to 24 months before real results are achieved.

10.  On 17 March 2009, Headquarters, U.S. Army Medical Department Activity, Fort Meade, informed the U.S. Army Human Resources Command that the applicant was fit for duty and requested that he be REFRAD.

11.  On 17 March 2009, the applicant "fell" and was ambulated to shock trauma.  Shock trauma's CT and magnetic resonance image (MRI) of his brain were within normal limits and the lumbar, thoracic, and cervical MRI was within normal limits. 
The laboratory tests were within normal limits.  He was released from shock trauma without additional medications and was told to resume his usual activity.  The applicant ambulated out of shock trauma and reported to the WTU the following day.

12.  On 11 June 2009, the applicant was released from active duty not by reason of physical disability and reassigned to his USAR unit.

13.  On 5 August 2009, the applicant was seen at the WRAMC Neurosurgical Clinic.  He was determined physical unfit, referred to a PEB, and referred to pain management for non-operative treatment.

14.  On 5 August 2009, x-rays of the applicant's back were read to show excellent post-operative implant position, relatively minor degenerative disc disease, and acute and chronic radiculopathy that may be due to prior injury or nerve tethering from a small amount of scar formation.

15.  On 18 August 2009, the applicant was given a permanent physical profile of "3" in his lower extremities.

16.  On 7 August 2009, the applicant requested to return to active duty under the MRP2 Program.  The request was denied on 25 August 2009.  In the denial memorandum, the applicant's medical history was reviewed showing he had an aggravation of a pre-existing back problem and spent over 600 days in the WTU under MRP orders from which he was released in June 2009.  It states there is no medical necessity for MRP2 and MRP2 did not apply in this situation.  It suggests the applicant apply for incapacitation pay.

17.  On 28 August 2009, the Social Security Administration awarded the applicant disability compensation.

18.  On 3 December 2009, the applicant appealed the denial of his return to active duty under MRP2.  In his appeal the applicant charged that he was erroneously REFRAD and should never have been found fit for duty.

19.  On 19 January 2010, the Commander, DiLorenzo TRICARE Health Clinic, endorsed the applicant's appeal, recommending that he be returned to active duty under MRP2 for the purpose of being processed into the PDES.

20.  On 27 January 2010, the CG, WTC, denied the applicant's appeal of his MRP2 denial.  The CG stated the medical review board disapproved the applicant's request to return to active duty under MRP2 even though the appeal authority recommended approval.  The CG explained the applicant's medical conditions are chronic in nature and do not meet the criteria to return to active duty for treatment or medical board action.  He states the applicant should undergo an MEB without the applicant being returned to active duty.

21.  On an unknown date, the applicant met with the CG, WTC, to plead his case.  He did not succeed in changing the CG's decision.

22.  On 14 April 2010, an MEB Narrative Summary was dictated.

23.  While telephone contact with the Physical Disability Agency confirms the applicant has completed the MEB and PEB process and his case is at the VA for a rating decision, neither the applicant nor his counsel opted to submit a copy of his MEB or PEB Proceedings.

24.  The WTU Consolidated Guidance (Administrative), paragraph 1-5 (Objectives), states that final disposition in the MRP occurs when the patient is determined/found medically cleared for duty or the DES process is complete.  Paragraph 1-12 states that the MRP2 is designed to voluntarily return Soldiers back to temporary active duty and to evaluate or treat Reservists with unresolved mobilization-connected medical conditions that either were not identified or did not reach optimal medical benefit prior to their REFRAD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical records were not provided to the Board.  The medical records provided were selected by the applicant and his counsel.  These records show the applicant had pre-existing non-service connected back problems resulting in surgery prior to his back injury while he was mobilized.  The extent of those non-service connected back problems and the applicant's progress after the surgery for those non-service connected back problems is not known to the Board.

2.  In this case, the applicant's x-rays indicated his surgical repairs were successful.  While the applicant was experiencing back pain, it did not appear to be from a medical condition which could be treated further.  This is reinforced by the fact he had only been given temporary physical profiles up to the date of his REFRAD.

3.  It was reasonably anticipated that if the applicant performed physical therapy after his release from active duty his pain would lessen.

4.  As such, it would appear the applicant was properly REFRAD.  The fact that he was subsequently determined to be medically disqualified, primarily due to pain, does not alter that fact.

5.  Since this isn't a case where the applicant was improperly REFRAD, he does not meet the criteria for being returned to active duty under the MRP2 Program.  Therefore, his request for active duty under the MRP2 Program was properly denied.

6.  Counsel has charged that the finding that the applicant was fit for duty was made in retaliation for the applicant's statement that he was not getting proper physical therapy at Fort Meade and his request for his physical therapy to be transferred to WRAMC.  While counsel cites a number of events in support of this argument, when viewed impartially these events were nothing more than routine processing procedures in the WTU.  Counsel has not submitted any evidence to support his contention that the finding that the applicant was fit for duty and his REFRAD were retaliatory.  It would appear highly unlikely that professional medical staff personnel would risk their military careers as well as their professional credentials to take revenge against the applicant.

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)                                         AR20100021010



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ABCMR Record of Proceedings (cont)                                         AR20100021010



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