IN THE CASE OF:	  

		BOARD DATE:	    5 April 2011

		DOCKET NUMBER:  AR20100022313 


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,

   a.  referral to the Physical Disability Evaluation System (PDES) for assessment by a Medical Evaluation Board (MEB); and
   
   b.  review of his medical records by the Office of the Surgeon General (OTSG) prior to his 31 December 2006 retirement date to determine if he had any medical conditions as outlined in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, that may have determined him to be unfit for duty.

2.  He states he should have been medically retired instead of being placed in the Retired Reserve.  He contends he is not fit for duty and he would not be able to serve in any capacity due to 27 pieces of unknown shrapnel in his mid-section and left thigh.

3.  He also states his left thigh is numb in several areas and he experiences intermittent undiagnosed pain in his leg.  He has hearing loss and Post Traumatic Stress Disorder (PTSD) that were a direct result of the injuries he received while serving on active duty in Iraq in 2005.

4.  He provided:

* a self-authored statement


* an extract of his military medical record
* two email transcripts

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.  His record shows he was born on 3 March 1965 and is currently 46 years of age.  He initially enlisted in the Regular Army on 9 May 1985 and he was released from active duty (REFRAD) on 18 March 1988.  He enlisted in the Georgia Army National Guard (GAARNG) on 19 March 1988 and continued to serve in the GAARNG through a series of reenlistments.  He was mobilized on
6 December 2004, in support of the Global War on Terrorism (GWOT) for Operation Iraqi Freedom (OIF).

3.  His military medical record contains several documents pertaining to the cause of injuries, initial medical treatment, medical evacuation, and medical hold outpatient status.  These forms include:

	a.  a DA Form 2984 (Very Seriously Ill/Special Category Patient Report), dated 1 September 2005, that shows he was placed on the roster as very seriously ill and admitted to the Intensive Care Unit at Landstuhl Regional Medical Center (LRMC), Germany; and

	b.  a Patient Movement Request form that shows he was being transferred to Walter Reed Army Medical Center (WRAMC), Washington, DC, as a result of severe injuries from an Improvised Explosive Device (IED) on 30 August 2005.  He was diagnosed with:

* a C2 vertebra dens (neck) fracture
* an Iliac (pelvic) fracture
* 

* a Pneumothorax (collapsed lung)
* burns to left flank (side of body)
* fragmentation wounds to abdomen (open), buttock and left thigh (deep)

4.  Contained within his medical records are several SFs 600 (Chronological Record of Medical Care) that show he was seen by the following clinics while an outpatient at EAMC:

	a.  on 2 and 3 October 2005, he was seen by Physical Therapy (PT) for gait training and a visit for MEB post-deployment examination;

	b.  on 3 and 4 October 2005, he received evaluation and counseling by the Social Work clinic for phase of life or life circumstance problems; and

	c.  on 3 November 2005, he was seen by the General Surgery Clinic and he was given a 30-day extension for PT and his convalescent leave was extended by 30 days.

5.  He also provided copies of his medication list which shows he was prescribed:

* Zoloft, used to treat depression, panic attacks, PTSD, and other mental/emotional conditions
* Tranadol, used for pain relief
* Trazodone, used to treat depression
* Ambien, used for the treatment of insomnia

6.  His record contains a DA Form 3349 (Physical Profile), issued by a military medical doctor at the General Surgery Clinic, EAMC on 6 October 2005.  This form shows in:

* Item 1 (Medical Condition), the entry "IED blast injury"
* Item 3 (PULHES), the entry “212111” 
* Item 4a (Temporary Profile), the entry "effective 20060106," an "X" marked under the "Yes" column
* Item 4b (Permanent Profile), an "X" marked under the "No" column
* Item 4c (If Permanent Profile with a 3 or 4 PULHES, DOES THE Soldier meet retention standards in accordance with chapter 3, Army Regulation 40-501), no annotations made in either column 

7.  His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status) that was prepared by the Patient Administrative Division at EAMC on 3 November 2005.  This form shows his injuries were determined to be in the line of duty (LOD).

8.  His record contains a GAARNG, Headquarters, Oglethorpe Armory, Ellenwood, GA, memorandum, subject:  Selection for Retention Under Provisions of Army Regulation 135-205 (Enlisted Personnel Management), dated 3 June 2006, which shows his request for retention in the GAARNG was approved for an additional 2 years.

9.  A U.S. Army Human Resources Command, Alexandria, VA, memorandum, dated 27 June 2006, shows he requested an early REFRAD, which was approved for 28 July 2006.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of service shows he was REFRAD on 7 July 2006 and he reverted to his GAARNG unit.

10.  On 14 August 2006, he was issued a Military Division, State of Georgia, memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  This letter informed him that he had completed the required years of qualifying Reserve service and that he is eligible for retired pay upon application at age 60.

11.  His record is void of any evidence that shows a military occupational specialty (MOS)/medical retention board (MMRB) was conducted or that he was referred for processing through the PDES.

12.  His record contains a DD Form 2808 (Report of Medical Examination) that shows a medical examination was conducted by a military doctor at the State Area Regional Command (STARC) Medical Detachment, GAARNG, Ellenwood, GA on 4 November 2006.  This document shows, in part:

	a.  Item 74a (Examinee/Applicant) a check mark was placed in the “Is qualified for Service” block and the word “Retention” was written next to it;

	b.  Item 74b (Physical Profile) his PULHES as “111311;” and 

	c.  Item 76 (Significant or Disqualifying Defects) the final diagnoses as hearing loss, and he was categorized under the profile series "P3."

13.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was honorably discharged on 31 December 2006 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-36b, for discharge and transfer to the Retired Reserve.  He had completed 21 years, 8 months, and 27 days of total service for retired pay.  Item 20 (Signature of Person Being Separated) contains the entry “Soldier Not Available for Signature.”

14.  His record contains Orders 003-013, issued by The Adjutant General (TAG), State of Georgia, dated 3 January 2007.  These orders show he was REFRAD on 31 December 2006 and was transferred to the USAR Control Group (Retired).

15.  His record also contains Orders 041-705, issued by TAG, State of Georgia, dated 10 February 2009.  These orders amend Orders 003-013 by changing the Standard Installation and Division Personnel Reporting System (SIDPERS) transaction code from “CC” to “MG”; to indicate his status on the Retired Reserve list was changed to show he received a medical retirement.

16.  He provided an email transcript which occurred on 2 and 3 September 2010, between the Office of the GAARNG G-1 and the GAARNG, Joint Forces Headquarters, Office of the Chief of Staff.  The G-1 representative stated she reviewed the Congressional inquiry on the applicant and based on NGR 600-200, he was retired and therefore had no status.  She contended that the applicant did not request a review of his medical status or retirement, but she spoke with him the year prior and told him that he did not have status and he would have to appeal to the ABCMR.  She noted that the Office of the G-1 could review his case and do a write-up to the ABCMR, recommending that he go before an MEB, but her office did not have the authority to provide him an MEB or change his discharge based on what she had seen.

17.  The second email transcript between the same parties of the GAARNG, dated 27 December 2010, shows the G-1 representative believed all of the 
applicant's issues were addressed except for his request for an MEB.  The attachment (previous email and Orders 041-705, dated 10 February 2009) includes the response and the corrected discharge order that changes his retirement to a medical retirement.  She stated she spoke with the applicant at length in September 2010, regarding his request for an MEB.  She is uncertain what he hopes to gain as he was ineligible for severance pay because he had more than 20 years of service and he is currently receiving 100 percent (%) disability from the Department of Veterans Affairs (VA).  

18.  On 12 January 2011, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The advisory official noted that Orders 041-705, dated 10 February 2009, changed the SIDPERS transaction code to "MG" to reflect a medical retirement.  As he is no longer in the service, an MEB could not be conducted without bringing him back on active duty.

19.  The advisory official also noted that even if he had undergone an MEB prior to his retirement, as outlined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation), chapter 12a, he would not qualify for severance pay due to the number of years he had in the service.  The applicant was advised that he may apply for benefits upon reaching the age of 59 by submitting the appropriate documents to his Retirement Services Officer.

20.  On 13 January 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

21.  Army Regulation 635-40, chapter 4, contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendation required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for referral through the PDES and to have his medical records evaluated for possible conditions, which may have required processing through an MEB, was carefully considered.

2.  The evidence of record shows that he was injured by an IED blast while serving in support of OIF in Iraq.  His injuries were determined to be LOD-Yes.  He received extensive medical treatment during each phase of his hospitalization and during his out-patient status while at EAMC.    

3.  It appears his physicians felt his medical conditions had been sufficiently resolved to allow him to REFRAD on 7 July 2006.  It appears he believed so, also, as he had requested a 2-year extension in the GAARNG in June 2006.

4.  On 4 November 2006, he was given a medical examination by the STARC Medical Detachment, GAARNG and he was determined to be fit for retention.  This form also shows he was issued a P3 profile for hearing loss; however, there is no evidence in the available record that shows his medical condition was referred to or evaluated by an MMRB or an MEB. 

5.  However, it appears that at some time the GAARNG determined he was medically unfit for retention, as they amended his separation orders to show he received a medical retirement.  However, it appears that any medical unfitness for retention would have been the result of the injuries he received while on active duty, and he would have been entitled to consideration by an MEB/PEB.   Merely amending his retirement orders to show he received a medical retirement without processing him through the PDES was not sufficient.  

6.  His record indicates he suffered from a medical condition that supported his disability processing through the PDES prior to his separation from the GAARNG.  In addition to his hearing loss, all other medical conditions stemming from his injuries in Iraq should also be evaluated.  

7.  While the facts and circumstances surrounding his non-availability for signature as shown on his NGB Form 22 are unknown; it appears that he voluntarily requested transfer to the Retired Reserve.

8.  Notwithstanding the email dialogue between members of the GAARNG, and the decision to amend Orders 003-013, dated 3 January 2007, he is entitled to a proper medical evaluation.

9.  In view of the foregoing, he should be afforded the opportunity to have his records reviewed through the PDES process.  If after he completes his PDES processing the determination is made that he should have been retired by reason of physical disability, the Defense Finance and Accounting Service (DFAS) should audit his financial record and provide him any back retired pay due as a result based on the percentage of disability awarded.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  directing the Office of The Surgeon General (OTSG) contact him and arrange, via appropriate medical facilities, an MEB; and

	b.  if appropriate, referral to an informal PEB.

2.  The OTSG is directed to use appropriate invitational travel orders to accomplish the MEB and, if necessary, the PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  In the event a PEB finds that the individual concerned has a medically unfitting condition and it is compensable, action will be taken to correct his records to show he was appropriately separated effective 31 December 2006.

5.  However, if compensation is not sufficient to warrant a permanent disability retirement, the applicant will be given the option of accepting disability severance pay or retaining his eligibility to receive retired pay at age 60.  Further, if a determination is made that he should be placed on the Temporary Disability Retired List (TDRL), he will also be briefed concerning the possible consequences of losing his entitlement to retired pay at age 60 if a subsequent TDRL evaluation finds that he is fit for duty or unfit at a rate less than would warrant permanent disability retirement.



      _______ _ 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)                                         AR20100022313



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ABCMR Record of Proceedings (cont)                                         AR20100022313



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