IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20100022552 


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, his transfer to the Retired Reserve be voided and that he be processed through the Physical Disability Evaluation System (PDES) with a Medical Evaluation Board (MEBD)/Physical Evaluation Board (PEB).

2.  The applicant states his separation from the Puerto Rico Army National Guard (PRARNG) was erroneous.  He was not given the opportunity to undergo a PEB for the purpose of establishing disposition and disability benefits.  He states the condition for which he was declared unfit for retention most likely was a result of his line of duty (LOD) approved back injury dated 28 September 1993.

3.  The applicant provides:

* a letter, dated 1 November 2004, to the applicant Subject: Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* a memorandum, dated 10 January 2005, Subject: Notification of Qualitative Retention Board Review
* DA Form 3349 (Physical Profile)
* DA Form 7349 (Initial Medical Review - Annual Medical Certificate)
* Acknowledge Statement of FFDDB determinations
* PRARNG Fit for Duty Determination Board (FFDDB) evaluation
* his orders for discharge from the PRARNG and transfer to U.S. Army Reserve (USAR) Control Group (Retired)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* a memorandum, dated 19 August 2010, from the PRARNG to the applicant

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 was born on 6 August 1958.  He enlisted in the PRARNG on  30 October 1989.  He previously served 4 years, 2 months, and 18 days of active service.  He was awarded military occupational specialty 63S (Heavy Wheel Vehicle Mechanic).

3.  A DA Form 2173, dated 28 September 1993, indicates he sustained an injury to his back after bending and lifting equipment on 25 September 1993.  The extent of the injury is shown as low back pain.  He sustained the injury while on inactive duty for training.  The injury was determined to have been incurred in LOD and no formal LOD investigation was required.  The LOD was approved by his unit commander on 28 September 1993 and Headquarters, State Area Command, PRARNG, San Juan, Puerto Rico reviewed and approved it on 
5 October 1999.

4.  On 1 November 2004, he was issued his 20-year letter, which notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

5.  On 10 January 2005, he was notified by the PRARNG his military records would be reviewed by a Qualitative Retention Board that would convene
14 - 18 March 2005.

6.  On 19 March 2005, he received a permanent profile for bulging discs L4-5 (remaining portion of the DA Form 3349 unreadable).  Under "P" (physical capacity or stamina) of the physical profile he was assigned the numerical designator "4."  This DA Form 3349 also indicated he had severe low back pain and recommended he be separated.

7.  On 15 April 2005, he was evaluated by an FFDDB for bulging disc L4-L5 with compression.  The board determined:

* he was not able to comply with all his MOS duties
* he completed 20 years of service and qualified to retire by Medical Condition
* A permanent profile of "4" was given under "P" of his physical profile
* he was unfit for retention in the PRARNG

He completed an FFDDB "Acknowledge Statement," in which he acknowledged he would be discharged from the PRARNG because of his P4 permanent profile. This form is dated 19 March 2005, which is prior to the convening of the FFDDB.

8.  On 12 July 2005, he was discharged from the PRARNG due to medical unfitness and assigned to the USAR Control Group (Retired) effective 21 March 2005.  The highest grade held by him was specialist/pay grade E-4.

9.  In memorandum from the PRARNG, dated 19 August 2010, subject:  Request for Correction of Erroneous Separation from PRARNG by Medical Reasons, an official from the Office of the Deputy Chief of Staff for Personnel, Joint Forces Headquarters, PRARNG, stated, in pertinent part, the following:

   a. After reviewing his request, a final determination could not be made.  Although the PRARNG concluded his discharge was erroneous, they were previously instructed by Department of the Army and NGB to defer final determination on these cases to the ABCMR.  

   b. The PRARNG agrees with, and recommends approval to, his request.     In their opinion, the evidence clearly shows he was not afforded the opportunity to be processed through the PDES.  

   c. There is no evidence showing he was properly counseled as to his right to a complete medical evaluation prior to his retirement.  It was his commander's responsibility to ensure the proper counseling was conducted concerning his rights prior to follow on with the medical recommendation provided by the FFDDB.

10.  On 6 June 2011, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  NGB recommended disapproval of the applicant's request to be processed through the PDES.  

	a.  The applicant served 13 years from the time of his injury, 23 September 1993, without problems until the date of his discharge on 21 March 2005.

	b.  There was no indication he had on-going back pain or another injury while on duty that caused the permanent back pain.

	c.  There was insufficient evidence to show he continued to have problems as a result of his 1993 injury.

11.  He submitted a rebuttal letter, dated 21 June 2011, to the NGB opinion.  He stated he wished to reemphasis his contention in regard to the violation of his due process when he was separated erroneously and placed in the Retired Reserve.  He provided a Department of Veterans Affairs (VA) Rating Decision, dated 3 March 2010.  This decision was based on his original claim for disability received by the VA on 6 October 2009.  Based on a VA examination dated 
16 November 2009 the VA:

* granted service connection for lumbar strain with an evaluation of 
40 percent
* granted service connection for chondromalacia patella, left knee, with degenerative joint disease with an evaluation of 10 percent
* denied service connection for right knee

12.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.  

   a. Chapter 7 provides guidance on the classification of individual Soldiers according to functional abilities.  The physical profile serial system is based primarily upon the function of body systems and their relation to military duties. The functions of the various organs, systems, and integral parts of the body are considered.  Since the analysis of the individual’s medical, physical, and mental status plays an important role in assignment and welfare, not only must the functional grading be executed with great care, but clear and accurate descriptions of medical, physical, and mental deviations from normal are essential.  In developing the system, the functions have been considered under six factors designated “P–U–L–H–E–S.”  Four numerical designations are used to reflect different levels of functional capacity.  The basic purpose of the physical profile serial is to provide an index to overall functional capacity.  Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4.

   b. Paragraph 7-3c(4) states that a profile serial containing one or more numerical designators of “4” indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. 

   c. National Guard 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 only.  Soldiers pending separation for In the Line of Duty (ILOD) injuries or illnesses will be processed in accordance with Army Regulation 40–400 and Army Regulation 635-40.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LOD criteria to be eligible to receive retirement and severance pay benefits:

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  

	b.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

14.  Army Regulation 635-40 states Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness.  Because these are cases of Reserve Component Soldiers with non-duty related medical conditions, MEBs are not required. 

15.  National Guard Regulation 600-200 (Enlisted Personnel Management) governs the policies and procedures for assigning, attaching, removing, and 

transferring enlisted Soldiers of the ARNG/ARNGUS.  Chapter 8, of the regulation in effect at the time, provided for the discharge of Soldiers deemed medically unfit for retention per Army Regulation 40-501 and National Guard Regulation 40-501.

DISCUSSION AND CONCLUSIONS:

1.  The applicant continued to serve in his rank and MOS for 13 years after his injury in 1993.  There is no medical evidence showing he had on going back pain or another injury while on duty that would have caused his bulging discs.

2.  The VA rating decision submitted by the applicant is dated 5 years after his transfer to the Retired Reserve and is based on his claim and a VA examination filed 4 years after his transfer.  Therefore, the level of disability for his lumbar strain assigned by the VA does not show the level of disability he may have had in 2005.

3.  There is insufficient medical evidence to show his bulging discs in 2005 are a result of his lumbar sprain 13 years earlier.  In order to be processed through the PDES his disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  Without a nexus between his condition in 2005 and his injury in 1993 there is insufficient evidence to grant his request.

4.  A Soldier with a non-duty related medical condition may request a PEB; however, the PEB would only determine fitness for duty.  That is, a Soldier requests such a PEB when he disagrees with the determination that he is not medically fit for retention.  

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)                                         AR20100022552





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022552



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1