IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100026814 


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, through his Member of Congress, revocation of his release from active duty (REFRAD) orders and reinstatement on active duty for the purpose of undergoing a medical evaluation board (MEB).

2.  The applicant states, in effect, that he was retired shortly after he completed a 4-year deployment at Fort Polk, LA, despite having a permanent profile that warranted further evaluation under the Army Physical Disability Evaluation System (PDES).  He further states his unit at the time, the 4013th Garrison Support Unit (GSU), inactivated.  In the process his unit failed to initiate his evaluation before an MEB.

3.  The applicant provides military orders, e-mail correspondence, and various military and Department of Veterans Affairs (VA) medical records, reports, charts, consults, examinations, evaluations, and other related medical documents in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the U.S. Army Reserve (USAR), on 18 February 1987 for a period of 8 years.  He completed training and he was awarded military occupational specialty 76Y (unit supply specialist).  He served in the Louisiana Army National Guard (LAARNG) and a number of Troop Program Units (TPU) within the USAR through a series of extensions and/or 

reenlistments.  The highest rank/grade he attained during his Reserve component service was staff sergeant/E-6.  

2.  On 17 January 2003, he was mobilized in support of Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF) at Fort Polk, LA.  

3.  On 10 January 2007, he was honorably REFRAD and reassigned to his previous TPU, the 4013th GSU.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 11 months, and
24 days of net active service during this period of active duty.

4.  On 22 January 2007, a line of duty investigation was initiated based on a previous injury he sustained on 3 February 2005.  The DA Form 2173 (Statement of Medical Examination and Duty Status) shows he was diagnosed with a contusion to the occipital portion of his skull with hematoma, resulting from a training accident in which a machine gun tripod fell on his head.  This form also states the injury occurred while he was on active duty, and it was considered to have occurred in the line of duty.

5.  On 22 March 2007, the U.S. Army Human Resources Command (HRC),
St. Louis, MO, issued the applicant his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter informed him that he had completed the required years of qualifying Reserve service and is eligible for retired pay on application at age 60. 

6.  On 4 August 2008, he was given a temporary profile for an injury involving the laceration of nerves in his left hand.  His DA Form 3349 (Physical Profile) shows his PULHES at the time was 1-3-1-1-1-1.  This form also states that his physical limitations did not require further evaluation by an MEB/Physical Evaluation Board (PEB). 

7.  On 18 December 2008, he was evaluated by medical personnel as part of his periodic health assessment (PHA).  During this evaluation he claimed:

* trauma/nerve damage to his left hand (cut injury to left hand)
* sleep apnea
* abdominal muscle strain
* flat feet
* traumatic brain injury (TBI), resulting from a machine gun tripod falling on his head during training

8.  On 25 February 2009, he was given a permanent profile for sleep apnea, post-concussive disorder, flat feet, and hearing loss.  His DA Form 3349 shows his PULHES at the time was 3-1-3-2-1-1.  This form also states that his physical limitations required further evaluation by an MEB/PEB. 

9.  On 17 March 2009, his PHA results were published.  These results noted:

* he had one or more abnormal findings as indicated on the PHA form and he required follow-up with a civilian medical provider
* physical abnormalities were noted; however, there were no documented limitations for profiling at the time 
* hearing loss was identified 
* the service member needed a temporary profile for abdominal strain

10.  On 13 May 2009, he was reassigned to the USAR Control Group (Retired Reserve).

11.  The applicant provides various military and VA medical records, reports, charts, consults, examinations, evaluations, and other related medical documents in support of his request.  Of note are the Standard Forms (SF) 600 (Chronological Record of Medical Care), dated 15 and 28 December 2008, which document the physician notes relevant to his December 2008 PHA.  In these notes, his attending physician states:

* [the applicant] is raising multiple medical issues which do not meet the criteria for an MEB IAW [in accordance with] Army Regulation 40-501 (Standards of Medical Fitness)
* [the applicant's] obstructive sleep apnea is controlled through the use of a CPAP (Continuous Positive Airway Pressure) machine
* with respect to [the applicant's] headaches, he has not been managed at all with the exception of his own over-the-counter management with Tylenol ES and Motrin
* [the applicant] is seeking to medically retire to maximize his retirement benefits

12.  His service records contain various DA Forms 2166-8 (Noncommissioned Officer) Evaluation Reports (NCOER)) as follows:

	a.  NCOER for the period covered 1 October 2006 through 30 September 2007, shows he received a "success" rating in the area of competence; he was rated as "fully capable" by his rater and successful/superior by his senior rater.

	b.  NCOER for the period covered 1 October 2007 through 31 May 2008, also shows he received a "fully capable" rating by his rater and "fair/superior" rating by his senior rater.

	c.  NCOER for the period covered 1 June 2008 through 6 January 2009, wherein his rater stated that the applicant "performs all assigned duties to standards" and although he was rated "marginal" by his rater, his senior rater rated his overall performance and potential as "fair" and "superior" respectively.  His rater also noted that his profile did not hinder his duty performance.

13.  Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  It defines Ready Reserve Control Groups and the Selected Reserve.  Detailed procedures are given for removing Soldiers from an active status.  Chapter 6 of this regulation provides for transfer to and from the Retired Reserve.  It states that assignment to the Retired Reserve is authorized as listed.  Eligible Soldiers must request transfer if they are entitled to receive retired pay from the armed forces because of prior military service; have completed a total of 20 years of active or inactive service in the armed forces; are medically disqualified from active duty resulting from a service-connected disability; or were appointed based on the condition the Soldier immediately apply for transfer to the Retired Reserve.  

14.  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.

	a.  Paragraph 3-2 provides that for members being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit.

	b.  Paragraph 4-9 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB.

	c.  Paragraph 4-13 provides that those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

	d.  Paragraph 8-2 states that Soldiers of the Reserve Components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

	e.  Paragraph 8-6 states that when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation.

	f.  Paragraph 8-9 states in pertinent part that a Soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc.

15.  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%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested revocation of his release from active duty orders and reinstatement on active duty for the purpose of undergoing an MEB.  His request was carefully considered; however, there is insufficient evidence to support this request.

2.  The various medical documents he provides show he was seen or evaluated in 2008, 2009, or 2010, after his release from active duty.  However, there is no evidence in his medical records that indicate he was diagnosed with an injury or disease at the time of his REFRAD in 2007 that would have warranted his entry into the PDES.  He was not diagnosed with a medical condition that would have warranted his entry into the PDES.  His various NCOERs clearly show he was capable of performing his assigned duties to standards.  Because all the evidence of record shows he was fully capable of performing his duties up until his REFRAD, there was no reason to consider him for entry into the PDES. 

3.  His medical profiles and PHA occurred after his REFRAD.  The underlying medical conditions described on his DA Forms 3349 and PHA cannot be substantiated as having occurred while on active duty, with the exception of post-concussive disorder, which was attributed to a head injury he suffered in February 2005.  It can be noted, however, that this head injury was evaluated and treated by competent medical authorities, who upon completion of treatment, released him back to his unit with no duty limitations.

4.  In view of the foregoing, there is no basis for granting relief in this case.

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)                                         AR20090007788



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ABCMR Record of Proceedings (cont)                                         AR20100026814



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