BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100021775 


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, correction of his records to show he was medically separated or retired by reason of disability.  

2.  The applicant states he had a service-connected disability.  He suffered an ankle injury while on active duty after mobilization and he was told he would need surgery.  He did not agree with the option that the military doctors were giving him and he was unhappy with the 60% success rate of the surgery.  He chose to see a civilian doctor.  He believes he should have been medically discharged or retired since he was given a physical profile.  

3.  The applicant provides the following documents:

* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DD Form 689 (Individual Sick Call Slip)
* DA Form 2823 (Sworn Statement)
* Pennsylvania Army National Guard (PAARNG) non-deployable memorandum
* Civilian hospital discharge and follow-up care
* DA Form 3349 (Physical Profile)
* Mobilization orders
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)



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 13 December 1979.  He enlisted in the PAARNG on 26 April 2001.  He entered active duty for training (ADT) on 19 November 2001, completed basic combat and advanced individual training, and he was awarded military occupational specialty 19K (M-1 Armor Crewmember).  

3.  He was released from ADT on 22 March 2002 to the control of his ARNG unit by reason of completion of his required active service.  He was assigned to Company C, 1st Battalion, 103rd Armor, Friedens, PA.

4.  On 25 June 2002, he was ordered to active duty in support of Operation Enduring Freedom and subsequently served in Germany from 17 July 2002 to 29 January 2003, during which he was promoted to sergeant (SGT)/E-5 on 19 January 2003.  He was honorably released from active duty on 16 February 2003.

5.  On 19 January 2005, he was ordered to active duty in support of Operation Iraqi Freedom and he was directed to report to Camp Shelby, MS.

6.  On 30 January 2005, he was walking from one building to a trailer when he stepped into a hole.  His right ankle rolled out and he fell to the ground.  Soldiers jogging by helped him back into the barracks.  He was admitted to Forrest General Hospital for evaluation.  His hospital discharge and follow-up care is not legible.  It is unclear what his disposition was. 

7.  On 5 May 2005, the U.S. Army Human Resources Command, Alexandria, VA, published Orders A-05-511173 ordering the applicant retained on active duty for a period of 179 days and assigned to the Medical Retention Company, Fort Campbell, KY, to participate in the Reserve Component Medical Retention Processing Program for completion of medical care.  

8.  On 28 June 2005, the Shelby Mobilization Center, Camp Shelby, MS, published Orders 179-16 ordering the applicant released from active duty, not by reason of physical disability, effective 28 June 2005, and assignment to his ARNG unit in Friedens, PA.  

9.  He was honorably released from active duty on 28 June 2005.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 months and 1 day of creditable active service.  Item 18 (Remarks) shows the entry "Soldier has been counseled concerning his right and refusal to remain in an active status under the Medical Retention Program." 

10.  The applicant's DA Form 2166-8 (NCO (Noncommissioned Officer) Evaluation Report) for the period December 2004 through November 2005 shows he received an "Among the Best" performance rating by his rater and a "Successful" overall performance and "Superior" overall potential by his senior rater.  The applicant met the height and weight standards and passed his Army Physical Fitness test (APFT) in October 2005. 

11.  On 6 January 2006, he was issued a temporary physical profile for an unspecified closed fracture of the ankle.  The profile assigned him the functional limitations of no jumping or landing and an alternate APFT event.  

12.  Also on 6 January 2006, by memorandum, a PAARNG Unit Operations/Readiness NCO informed the applicant's commander that the applicant was non-deployable due to an ankle injury.  The NCO requested all civilian medical records indicating his current condition, treatments, limitations, and long-term prognosis be forwarded to the Medical Detachment, PAARNG, for review by 6 February 2006.

13.  There is no indication in the applicant's records of what occurred subsequent to this memorandum.  His service records are void of any medical documents or correspondence related to what his disposition was.

14.  On 1 September 2006, he was reassigned from Company C (Rear), 1st Battalion, 103rd Armor, to Company C, 1st Battalion, 110th Infantry, Friedens, PA.  

15.  The applicant's DA Form 2166-8 for the period December 2005 through November 2006 shows he received a "Fully Capable" performance rating by his rater and a "Successful" overall performance and "Superior" overall potential by his senior rater.  The applicant met the height and weight standards and passed his APFT with nearly a perfect score (298 out of 300). 

16.  He was honorably released from the ARNG on 25 April 2007 by reason of expiration of his service commitment in the Selected Reserve and he was transferred to the U.S. Army Reserve Control Group (Annual Training).  His NGB Form 22 shows he completed a total of 6 years for pay. 

17.  There is no indication in the applicant's records that he was issued a permanent physical profile or that he underwent a medical evaluation with subsequent referral to a medical evaluation board (MEB). 

18.  An advisory opinion was obtained on 23 February 2011 in the processing of this case.  An NGB official recommended disapproval of the applicant's request.  The official stated:

	a.  After a careful review of the information provided by the applicant, there is insufficient information present to make a recommendation.  His military and civilian medical records are not available.  

	b.  The applicant stated he left the military to be evaluated by a civilian hospital.  He was given treatment options through the military and he was offered to be retained on active duty to undergo treatment but he refused.  A declination statement signed by the applicant acknowledged that he agreed to be released from active duty.

19.  In his rebuttal, dated 8 March 2011, the applicant stated he was injured during his last mobilization and his injury was in line of duty.  The doctors told him he needed surgery.  He asked for a second opinion but he was not given one.  He was set for surgery the following week.  He did not want to have surgery because he was too young for surgery.  He opted out of the surgery and sought civilian medical attention.  His injury was service-connected and he should receive entitlements.  

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 MEBs, 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 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

21.  Appendix B-3 (Essentials of ratings disabilities) of Army Regulation 635-40 states in sub-section B-3c that there are many conditions, such as neuropsychiatric disorders, asthma, hypertension, epilepsy, diabetes, certain injuries, which may be improved sufficiently by treatment to prevent disability, or to significantly decrease it.  If a Soldier unreasonably fails or refuses to submit to medical or surgical treatment or therapy, or take prescribed medications, or to observe prescribed restrictions on diet, activities, or the use of alcohol, drugs or tobacco, that portion of the disability that results from such failure or refusal will not be rated where it is clearly demonstrated that the Soldier was advised clearly and understandably of the medically proper course of treatment, therapy, medication or restriction; or the Soldier’s failure or refusal was willful or negligent and not the result of mental disease or a physical inability to comply.  

22.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities.  

23.  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 at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was medically retired or separated for disability.

2.  The purpose of the PDES is 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 a service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.

3.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.  Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation, beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.

4.  In this case, the evidence of record shows the applicant was ordered to active duty on 19 January 2005.  During train-up at Camp Shelby, he injured his ankle.  He appears to have received initial treatment at a civilian hospital.  He was ordered retained on active duty to complete medical treatment in the Reserve Component Medical retention Program but he refused.  

5.  He was counseled concerning his right and refusal to remain in an active status under the Medical Retention Program but he elected to be released from active duty.  Accordingly, he was honorably released from active duty by reason of completion of required active service.  

6.  Even if the applicant had elected to remain on active duty and seek medical treatment, the applicant's NCO evaluation reports clearly show he was able to perform the duties required of his MOS and grade.  Nowhere in his records does it show he had a medical condition that rendered him physically unfit and warranted his entry into the PDES. 

7.  There is no evidence in the applicant’s records and he did not provide any evidence that shows his ankle injury was diagnosed during a medical examination and was determined not to have met the medical retention standards of Army Regulation 40-501.  Accordingly, an MEB never convened, probably because he refused surgery, to document his medical status and duty limitations, and possible referral to a PEB. Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

8.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank, or rating.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  

9.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.


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)                                         AR20100021775



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ABCMR Record of Proceedings (cont)                                         AR20100021775



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