DOCKET NUMBER: AR20100024024
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, that his medical condition(s) be evaluated by a Medical Evaluation Board (MEB).
2. The applicant states he was not allowed to go before an MEB. He was released from active duty at end of his enlistment.
3. The applicant provides:
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Medical Retention Processing Printout
* Outpatient Record
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 record shows he enlisted in the South Carolina Army National Guard (SCARNG) on 27 July 1999. He entered active duty for training (ADT) on 7 November 1999 and competed training for military occupational specialty (MOS) 11C (Indirect Fire Infantryman). He was honorably released from ADT on 24 March 2000.
3. He was released from the ARNG on 27 May 2004 as an unsatisfactory participant and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.
4. On 31 July 2005, he was ordered to active duty in support of Operation Enduring Freedom. He served in Kuwait/Iraq from 31 March 2006 to 12 November 2006.
5. On 9 November 2006, while participating in a convoy, his vehicle was struck by an improvised explosive device (IED). He was seen in an outpatient clinic in Rutba, Iraq for an injury to his radial nerve, open left knee wound, and leg complications. His injury was determined to be in line of duty. He was evacuated to Landstuhl, Germany.
6. On 10 November 2006, he was examined at Landstuhl Hospital, Germany and he was determined to have a soft tissue injury to the left volar forearm and open injury to the left knee joint. He underwent initial treatment and he was transferred to Eisenhower Army Medical Center, Fort Gordon, GA.
7. He was extended on active duty and served under the Reserve Component Medical Retention Processing Program from 1 December 2006 to 2 March 2007.
8. The complete facts and circumstances surrounding his subsequent treatment, medical evaluations, physicals, and determination of fitness or unfitness are not available for review with this case. However, on 2 March 2007, he was honorably released from active duty due to completion of required active service and transferred to the USAR Control Group (Annual Training).
9. The available medical evidence does not show he had an illness/injury or any medical condition or that he was issued a physical profile that rendered him unable to perform his duties or warranted entry into the Physical Disability Evaluation System (PDES) when he was released from active service.
10. He continued to serve in the USAR until he was honorably discharged on
25 September 2007.
11. 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 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).
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, in effect, he had medical condition(s) that should have been evaluated by an MEB prior to release from active duty.
2. The applicant was injured by an IED in Iraq. He was evacuated through Landstuhl Medical Center, Germany to Eisenhower Army Medical Center, Fort Gordon, GA. He was also extended on active duty and served under the Reserve Component Medical Retention Processing Program from 1 December 2006 to 2 March 2007. The complete facts and circumstances surrounding his subsequent treatment, medical evaluations, physicals, and determination of fitness or unfitness for duty are not available for review with this case.
3. He was honorably released from active duty on 2 March 2007 by reason of completion of required active service and he was transferred to the USAR Control Group (Annual Training) to complete his remaining service obligation. There is no evidence in his records and he did not provide any substantiating evidence that indicates he had an illness, injury, or a medical condition that warranted his entry into the PDES at the time he was released from active duty. Therefore, he was not considered by an MEB.
4. Even if he suffered any disabling medical condition, 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.
5. In view of the foregoing, there is insufficient evidence to grant him the requested relief.
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.
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