IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100026348 


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:

* reinstatement into the Puerto Rico Army National Guard (PRARNG) to go through the process of a physical evaluation board (PEB) in order to change his honorable discharge to a medical discharge
* correction of item 23 (Authority and Reason) of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)

2.  The applicant states that on 3 February 1991 he was deployed as the commander of the 225th Military Police (MP) Company to Southwest Asia (SWA).  Once the unit accomplished the mission, the unit returned to Puerto Rico.  During the demobilization, he had identified that he was suffering from very bad lower back pain.  He was referred to the U.S. Army Health Clinic (USAHC), Fort Buchanan, PR, and later Roosevelt Road Hospital for a physical examination.  The recommendation by the medical doctor was that his medical condition would improve with back exercises.  On 8 August 1991, he was released from active duty without being hospitalized for treatment or for a genuine medical examination for a real diagnosis.  He was always willing to go to the PRARNG for a medical evaluation.  He never refused or neglected to comply with his military service.  His NGB Form 22 states the authority and reason he was separated was under paragraph 5b(8) of National Guard Regulation 635-100 which does not exist.

3.  The applicant provides:

* NGB Form 22
* NGB Form 22a (Correction to NGB Form 22)
* Three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Two DA Forms 2173 (Statement of Medical Examination and Duty Status)
* Two PRARNG memoranda
* Department of the Army memorandum
* Eight orders
* Award certificate
* Letter of recommendation
* DA Form 2166-5A (Senior Enlisted Evaluation Report)
* Four Department of Veterans Affairs (VA) rating decisions
* Binder containing Army, VA, and selected ARNG medical records, charts, examinations, reports, and notes

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.  Having had prior service, the applicant's records show he was appointed as a second lieutenant (2LT) in the PRARNG on 29 May 1983.  He executed an oath of office on the same date.  He was promoted to the rank of captain (CPT) on 7 February 1991.  

3.  He was ordered to active duty in support of Operation Desert Shield/Desert Storm as a member of the PRARNG on 3 January 1991.  He served in SWA from 10 February to 29 May 1991 while assigned to the 225th MP Company.

4.  A Standard Form 600, dated 11 July 1991, shows he was treated at the Fort Buchanan USAHC for lower back pain.  The attending physician wrote the entry, "Patient understands he was told his condition should improve with exercise and a profile.  Soldier may be released from active duty (REFRAD) at the convenience of military personnel." 
5.  He was honorably REFRAD on 8 August 1991.  He completed 7 months and 6 days of creditable active service during this period of service.  His DD Form 214 shows he was honorably REFRAD in accordance with chapter 3 of Army Regulation 635-100 (Officer Personnel) by reason of expiration of his term of service.

6.  His records contain and he provided a DA Form 2173, dated 6 September 1991, that shows he was treated at the Fort Buchanan USAHC for lower back pain radiating to his legs.  This form shows, in pertinent part, the injury was incurred in the line of duty and the applicant had identified his lower back pain during medical outprocessing at the demobilization center.  The injury was caused by carrying a footlocker in Saudi Arabia in April 1991 and the Fort Buchanan USAHC documented this condition from his health record.  The back of this form shows the entry "Reviewed for completeness.  In line of duty."  On 27 November 1991, the Adjutant General, Headquarters, Fort McPherson, GA, signed the form.

7.  His record contains a DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 26 April 1992, covering the rating period from 20 to 26 April 1992, for his attendance at the Unit Commander Course, Fort Allen, PR.  This AER shows he achieved course standards.

8.  His records contain and he also provided a DA Form 2173, dated 29 December 1993, from the Commander, 162nd Field Artillery, Hato Rey, PR, to the Chief, NGB which shows the applicant was injured in April 1991 in Saudi Arabia while on active duty.  This form shows, in pertinent part, he suffered an injury to his lower back while carrying a foot-locker with heavy equipment and he had been receiving treatment/therapy for this condition provided by the VA since 1992.  The condition had worsened and precluded the applicant from performing in a satisfactory manner in his present employment.  

9.  A Standard Form 600, dated 3 January 1994, shows he was treated at the USAHC, Fort Buchanan, PR, for lower back pain and neck pain that began in 1991 and resulted in numbness of legs and headaches.  The attending physician noted the applicant needed to continue his treatment with VA. 

10.  DA Form 705 (Army Physical Fitness Test (APFT) Scorecard shows:

* On 7 July 1994, he did not take the APFT due to "Profile"
* On 4 March 1995, he did not take the APFT due to "Pending MEB"
* On 2 December 1995, he did not take the APFT due to "Profile"
* On 9 March 1997, he was graded only on the alternate event of a two and one half mile walk due to "Profile"
11.  The applicant completed a National Guard Regulation Form 40-501 (Annual Medical Certificate) on 28 January and 26 October 1996.  He indicated on each form that he did not currently have any medical/dental problems; he had not been seen or treated by a dentist/physician or other health care provider since his last periodic physical examination; and he did not currently and had not taken prescription medication since his last examination.  He authenticated each form by signing in the appropriate block.  Blocks 1a (AMC Review Notes) and blocks 1b (Supervisor) of each form indicating "Fully Fit" are checked and signed by the appropriate reviewing authority.

12.  In an undated memorandum, PRARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This memorandum notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

13.  He was honorably discharged from the ARNG on 30 November 1997 and he was transferred to the U.S. Army Reserve Control Group (Retired).  The NGB Form 22a he was issued shows he completed 21 years, 3 months, and 4 days of total service for pay.  

14.  Item 23 of the NGB Form 22 he was issued shows the authority and reason for his discharge from the ARNG from active duty as paragraph 5b(8), National Guard Regulation 635-100 (Personnel Separations - Termination of Appointment and Withdrawal of Federal Recognition), withdrawal of Federal Recognition.

15.  NGB Form 23B (ARNG Retirement Points History Statement), dated 3 February 1998, shows he continued to drill with his unit from August 1991 through November 1997.

16.  In a memorandum to the applicant, dated 6 October 2010, subject:  Request for Correction of Erroneous Separation from PRARNG and ABCMR Request Pertaining to CPT (Ret) R*** (the applicant), an official from the PRARNG, Joint Forces Headquarters, Deputy Chief of Staff for Personnel, San Juan, PR, stated, in pertinent part, the following:

	a.  After an evaluation of the additional evidence provided by the Chief, G1-Health Support Services Branch, there is sufficient evidence to believe the applicant at the time of his retirement was requesting a medical evaluation through his chain of command for medical conditions incurred while serving in Operation Desert Storm.

	b.  There is no evidence showing the Soldier was properly counseled as to his right to a complete medical evaluation prior to his retirement.  It was his commander and PRARNG G1's responsibility to ensure the proper medical evaluation requested was executed prior to his retirement.

	c.  The recommendation from this headquarters is his request be partially adjudicated by the ABCMR by recommending all State ARNG and DA records be corrected by directing the Office of the Surgeon General to arrange a physical evaluation and if appropriate, referral to a medical evaluation board (MEB) and PEB.

	d.  Should a determination be made that the applicant should have been separated under the physical disability evaluation system (PDES), the ABCMR proceedings serve as the authority to void his administrative erroneous discharge and issue him appropriate disability separation retroactive to his original ARNG separation date with entitlement to all back pay and allowance.

17.  On 23 May 2011, an advisory opinion was obtained from the NGB, Chief, Personnel Policy Division.  The advisory official opined, in pertinent part, the following:

	a.  Recommend approval of the applicant's request to be processed through the PDES.  The Soldier should have been afforded the opportunity to appear before a Mandatory Medical Review Board (MMRB) prior to being released from the PRARNG.  In 1991, he was involved in a vehicle accident which caused injuries sufficient enough to cause the Soldier not to meet medical retention standards.  He was ordered to the Retired Reserve with over 20 years of service toward retirement.  There is no supporting documentation indicating he was counseled as to his rights to accept referral to an MEB/PEB for the purpose of disability benefits.

	b.  Soldier's medical records should be sent before an MEB for disability evaluation processing, then be referred to the PEB to determine suitability of a medical discharge.

	c.  The PRARNG should review item 23 of his NGB Form 22 and address the correction accordingly.  If the results of the MEB/PEB are favorable to the Soldier, the DD Form 214 should be amended accordingly.

18.  The applicant provides a memorandum addressed to the Commander, Troop Command, San Juan, PR, dated 22 November 1993, wherein he requested a physical profile board for himself as "he was having certain problems with his low [sic] back."  It is unclear if the memorandum was received by the commander and if so, if it was acted upon.
19.  The applicant provides a VA rating decision, dated 4 August 1997, wherein it shows that based on a VA examination on 5 February 1997, outpatient treatment reports from 29 July 1993 to 25 March 1996, and a report from 7 March 1997 his evaluation of intervertebral disc syndrome which was rated at 20 percent disabling was increased to 60 percent effective 27 August 1992.

20.  In a VA rating decision, dated 21 August 2003, entitlement to individual unemployability was granted to him effective 5 August 2002 based on the applicant stating he had worked at the Job Corps from 8 June 1988 to 10 February 1999, when he became too disabled to work.

21.  In a VA rating decision, dated 13 October 2005, the denial of service-connected disability for cervical spine condition was confirmed.  The rating decision shows it determined the condition was not caused by a motor vehicle accident the applicant suffered while on active duty in (SWA) in 1991.

22.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  It states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that a Soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the Soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

23.  Army Regulation 635-40 provides for MEB's, 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.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

24.  Army Regulation 40-501 (Standards of Medical Fitness) 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 VA Schedule for Rating Disabilities.  Paragraph 9-12 states that Reserve Component Soldiers with 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was injured while serving on active duty in SWA in 1991 during a motor vehicle accident and/or while carrying a foot-locker with heavy equipment that may have resulted in lower back pain.  During demobilization he received a medical examination wherein the attending physician noted his complaint of lower back pain and advised him (the applicant) his condition should improve through exercise and a profile.  His condition was not found to be unfitting by the attending physician and he was cleared for REFRAD.

2.  From the date of his REFRAD on 8 August 1991 through his discharge from the PRANG on 30 November 1997, he continued to drill with his unit, attended the Unit Commander's Course in 1992, and served honorably in the PRARNG.  Although a DA Form 705 dated 4 March 1995 indicated he was "Pending MEB", two annual medical certificates, dated January and October 1996, indicate he was fully fit for duty.  

3.  The PRARNG and the NGB advisory officials opined that prior to the applicant's discharge from the ARNG, he was not counseled as to his right to receive a medical evaluation in conjunction with his retirement, he should have been afforded the opportunity to appear before an MMRB at the PRARNG, and he did not receive adequate counseling on his right to accept referral to an MEB or a PEB for disability evaluation.

4.  However, an MEB and/or PEB are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  There is insufficient evidence that shows he was not able to perform his duties up until the time of his discharge from the PRARNG.  He himself acknowledged as late as October 1996 that he was fit.  There is insufficient evidence to overcome the presumption of fitness rule.

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 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)                                         AR20100026348





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ABCMR Record of Proceedings (cont)                                         AR20100026348



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