BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100021168 


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 evaluation by the physical disability evaluation system (PDES) for physical disability processing.  

2.  He states:

	a.  the Puerto Rico Army National Guard (PRARNG) wrongfully separated him from the service without properly counseling him of his right to elect referral to the PDES;

	b.  he was not afforded a fair evaluation by the PDES for conditions for which he was found unfit for continuance in military service;

	c.  the evidence provided is proof he was treated for a lower back injury and left shoulder condition while entitled to military pay and allowances;

	d.  his chain of command and the PRARNG failed to ensure that line of duty (LOD) determinations were completed for the above-mentioned injuries; and

	e.  he was wrongfully directed to report for a Fit for Duty Determination Board (FFDDB) on 14 August 2005, which issued him a permanent profile with P4, U3, L3, and recommended him for separation.


3.  He provides:

* a PRARNG FFDDB Acknowledgement Statement
* a DA Form 3349 (Physical Profile)
* a Standard Form (SF) 600 (Chronological Record of Medical Care)
* a DA Form 7349 (Initial Medical Review – Annual Medical Certificate)
* an SF 93 (Report of Medical History)
* a DA Form 2173 (Statement of Medical Examination and Duty Status)
* an SF 558 (Emergency Care and Treatment)
* a memorandum, subject:  Mandatory Separation, dated 19 November 2005
* three Annual Training orders
* his discharge orders
* a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* an NGB Form 23B (Army National Guard Retirement Points History Statement)
* his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* three DA Forms 2823 (Sworn Statement)
* a letter from Hospital Damas, Ponce, Puerto Rico (transcribed in Spanish)

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.  After having had prior service, the applicant enlisted in the PRARNG on       25 April 1984.  

3.  A DA Form 2173 was completed on 6 April 1986 for low back pain caused by lifting a heavy object (laundry equipment).  This document shows he was on active duty for training at the time.  His injury was incurred in the LOD and he was placed on 3 days of rest.


4.  A second DA Form 2173 was completed on 18 July 1987 for a cut on his right thumb.  His injury was incurred in the LOD.  Section II (To Be Completed by Unit Commander or Unit Advisor) of this document was not completed or signed by the unit commander or unit adviser.

5.  He was issued a 20-Year Letter on 1 May 2001.

6.  His NGB Form 23B, dated 22 July 2005, shows he completed 24 years, 3 months, and 16 days of qualifying service toward non-regular retirement.

7.  He completed a DA Form 7349 on 14 August 2005 in which he listed conditions to include left shoulder osteopenia [a condition where bone mineral density is lower than normal] and tendonitis.

8.  On 14 August 2005, he received a DA Form 3349 giving him a permanent physical profile of "433111" for osteopenia, hyperparathyroidism [overactivity of the parathyroid glands resulting in excess production of parathyroid hormone}, and uncontrolled hypertension.  Block 4c of this document was not completed to indicate whether a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) was required, indicating that he met retention standards despite his medical issues.  The profiling officer recommended separation.  The DA Form 3349 was not signed by the unit commander or approval authority.

9.  The PRARNG FFDDB Acknowledgement Statement shows he was evaluated on 14 August 2005 and he received a permanent profile of P4, U3, and L3.  This document indicated he would be discharged effective 15 August 2005 and that he would not attend unit drills and annual training.

10.  A copy of the option memorandum is not available for review with this case; however, it would have required the applicant to acknowledge the notification and elect one of the following options on the notification of medical unfitness for retention and election of options:

	a.  request reassignment to the Retired Reserve in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), if he had completed 20 years of qualifying years;

	b.  request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 (15-year retirement);

	c.  request honorable discharge from the USAR; or


	d.  request an informal MEB/PEB to review his medical records for a final determination of his medical fitness for retention.

11.  Orders 187-60, issued by the PRARNG Element, Joint Forces Headquarters, San Juan, Puerto Rico, dated 21 September 2005, discharged the applicant from the PRARNG, effective15 August 2005, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1) for being medically unfit for retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  On the following day, he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).

12.  In the processing of this case, on 13 April 2011, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The advisory official recommended disapproval of the applicant’s request.  The opinion stated:

	a.  The PRARNG completed two LOD investigations.  It was believed that the commander signed the DA Form 2173 after eliminating the possibility that misconduct or negligence was involved.

   b.  The applicant was treated for low back pain in 1986 with a 3-day limited duty profile.  No further treatment was required.  There is no medical evidence that the injury was connected to the uncontrolled hypertension, hyperparathyroidism, or osteopenia that caused him to be permanently profiled and administratively discharged (non-LOD diseases) in 2005.

	c.  The applicant was administratively separated for multiple non-duty related medical conditions by a Military Occupational Specialty Medical Retention Board (MMRB).  He was given a permanent 4 profile, which prevented him from deploying without a record of retention by an MMRB or a PEB unless the MMRB convening authority waived this requirement.  

	d.  The determination was made that he could not perform in his assigned military occupational specialty, which indicated he was separated for non-duty related diseases and he was given an appropriate permanent profile (PULHES 433111) for those diseases.

	e.  The applicant was not eligible for referral for disability processing for medical retirement because the medical conditions were not duty related.  Regulatory guidance was provided on Army Regulation 40-501, chapter 10, section 10-25 and an explanation of TAPD-Policy Memorandum Number 4 (Processing Reserve Component (RC) Non-Duty Related Cases).  


	f.  A medical review indicated he did not meet medical retention standards.  An FFDDB was held on 5 July 2005, which found him unfit.  He was honorably discharged on 11 July 2005.  

13.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments or a rebuttal.  However, he did not respond within the allotted timeframe.  

14.  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 incurred while entitled to basic pay.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several LOD criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

15.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to establish service PDES for the purpose of retiring or discharging a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency (USAPDA), under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for operating the Army's PDES and executes Secretary of Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

16.  Army Regulation 40-501 governs medical fitness standards for retention and separation, including retirement.  Paragraph 9-12 (Request for PEB evaluation) states that RC Soldiers with non-duty related 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.  Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities.  Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the U.S. Army Reserve Command Regional Support Command or the HRC Command Surgeon's office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.

17.  Army Regulation 40-501, paragraph 10-25 (Not in the Line of Duty (NILOD), states the Department of Defense Instruction 1332.38 (Physical Disability Evaluation) states that members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  Further explanation is available in TAPD-Policy Memorandum #4, Processing RC Non-Duty Related Cases.  This policy memorandum outlines the procedures and requirements for processing boards on RC Soldiers with non-duty related impairments that are pending separation for medical disqualification.  Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier.  The Soldier will have a completed LOD or memo that notifies him/her of non-duty related findings (Not In the Line of Duty -NILOD).  The Soldier may not challenge the PEB findings in person.

18.  Army Regulation 40-501, paragraph 10-25a(2), states the Military Personnel Office is responsible for notifying the Soldier, in writing, that his/her injury is NILOD and that he/she is pending separation for a medical disqualifying condition.  The notification will also advise the Soldier that he/she has the right to prepare a Non-Duty PEB packet for a fitness determination.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant injured his back on 6 April 1986 and he received an LOD determination for low back pain.  He also injured his right thumb on 18 July 1987 and he received an LOD determination for this injury.

2.  His discharge on 15 August 2005 was based on a medical review by the PRARNG FFDDB on 14 August 2005 which found he was unfit due to osteopenia, hyperparathyroidism, and uncontrolled hypertension.  There is no evidence to show that any of these conditions were incurred while he was entitled to basic pay.  His service record is void of evidence which supports his contention that he was separated from the PAARNG without proper counseling.
3.  His contention that he was not afforded a fair evaluation by the PDES for conditions he was found unfit for continuance in military service is acknowledged.  However, the evidence of record shows his medical conditions were non-duty related and he was rendered medically unfit to meet retention standards.  

4.  By regulation, for RC Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities.  He had the option to request his case be reviewed by a Non-Duty Related PEB for a fitness determination; however, his service record does not indicate he made such an election.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100021168



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ABCMR Record of Proceedings (cont)                                         AR20100021168



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