IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20100028537 


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 discharge from the Puerto Rico Army National Guard (PRARNG) and transfer to the Retired Reserve be voided.  He also requests to be processed through the Army's Physical Disability Evaluation System (PDES).

2.  The applicant states:

	a.  His separation from the ARNG was erroneous because the procedures of Army Regulation 40-501 (Standards of Medical Fitness), chapter 7, paragraph 
7-11(3)(d); Army Regulation 600-60 (Physical Performance Evaluation System); and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) were not followed.

	b.  He was not given the opportunity to be processed through the PDES for disability benefits.  The condition for which he was declared unfit was clearly acquired while on active duty in support of Operation Enduring Freedom/Noble Eagle from 14 February 2003 through 6 September 2003.

	c.  He was treated and diagnosed with diabetes, hypertension, meniscal tear debridement of the left knee while on active duty orders and neither his commander nor the PRARNG ensured a line of duty was completed prior to his release from active duty.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 43-4 (discharge from the ARNG)
* his Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter)
* a request for discharge memorandum
* a PRARNG Fit for Duty Determination Board (FFDDB) Acknowledgement Statement
* a DA Form 4187 (Personnel Action) for early retirement
* a DA Form 3349 (Physical Profile)
* a DA Form 7349 (Initial Medical Review - Annual Medical Certificate)
* a Standard Form (SF) 600 (Chronological Record of Medical Care)
* his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* his NGB Form 23B (Army National Guard Retirement Points History Statement)
* a Post-Deployment Health Assessment
* selected medical documents

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 enlisted in the PRARNG on 26 November 1986.  He served through multiple extensions in the ARNG in military occupational specialty (MOS) 11B (Infantryman) and he attained the rank/grade of specialist (SPC)/E-4.

3.  On 14 February 2003, he was ordered to active duty as a member of the PRARNG in support of Operation Noble Eagle/Enduring Freedom.  He served in Kuwait from 1 Aril 2003 through 16 May 2003.

4.  During July and August 2003, he was seen at the Fort Bragg, NC, physical therapy clinic for various routine issues, including high blood pressure, diabetes, and other issues.  However, nowhere on any of the medical records he submitted did a military doctor indicate the applicant was unable to perform the duties required of his specialty or grade.

5.  On 25 August 2003, he completed a post-deployment health assessment wherein he indicated that he had concerns about his blood pressure, diabetes, knee surgery, a rash on his face, and warts.

6.  On 30 August 2003, he was issued a temporary physical profile subsequent to left knee surgery.  The profile limited some of his physical activities.

7.  He was honorably released from active duty on 6 September 2003 by reason of completion of his required service.  His DD Form 214 shows he completed 6 months and 23 days of creditable active service.

8.  On 18 January 2005, the applicant's immediate commander requested an FFDDB pertaining to the applicant.  The immediate commander stated that the applicant received a 40 percent disability rating from the Department of Veterans Affairs (VA).

9.  On 23 January 2005, he was evaluated by an FFDDB for diabetes mellitus and left knee surgery.  The board determined:

* he was not able to comply with all of his MOS duties
* he had 17 years of total service and he qualified for early retirement
* he received a 40 percent disability rating from the VA

10.  The board recommended he receive an L3 permanent profile with the assignment limitations of unfit for further service.  The board further stated that in accordance with Army Regulation 40-501, paragraph 3-39, the applicant was unfit for retention in the PRARNG.

11.  On 23 January 2005, he was given a permanent profile for diabetes mellitus and left knee surgery.  The physical profile indicated he was "not fit for duty."  His DA Form 3349 shows his PULHES at the time was 4-1-3-1-1-1.  The profiling physician indicated the applicant was "Not fit for Duty."  He did not indicate on this form the extent to which his physical limitations required further evaluation by a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB).

12.  He completed an FFDDB "Acknowledge Statement," in which he acknowledged he would be discharged from the ARNG because of his permanent profile.

13.  On 4 February 2005, the applicant's immediate commander indicated that the applicant was found not fit for duty in the PRARNG by the FFDDB on 23 January 2005; therefore, he should be discharged.

14.  On 8 February 2005, by a DA Form 4187, he requested early retirement.  He indicated that he had at least 17 years of qualifying service and he elected transfer to the Retired Reserve.

15.  On 1 March 2005, he was issued his Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter), which notified him that he had completed at least 15 years qualifying service under Title 10, U.S. Code, section 12731b to apply for retired pay at age 60.

16.  Orders 43-4, issued by Joint Forces Headquarters, PRARNG, San Juan, Puerto Rico, dated 7 March 2005, honorably discharged him from the ARNG and assigned him to the U.S. Army Reserve (USAR) Control Group (Retired), effective 24 January 2005.  His NGB Form 22 for the period ending 24 January 2005 shows in:

* Item 10d  (Total Service for Pay) he completed 18 years, 1 month, and
29 days of total service for pay
* Item 23 (Authority and Reason) he was medically unfit for retention

17.  An NGB Form 23B, dated 1 March 2005, shows he performed duty with his unit from September 2003 through November 2004.

18.  In a memorandum from the Office of the Deputy Chief of Staff for Personnel, Joint Forces Headquarters, PRARNG to the applicant, subject:  Request for Correction of Erroneous Separation from PRARNG by Medical Reasons, dated 10 November 2010, an official stated:

	a.  After reviewing his request and conducting a detailed research of the applicant's case, his office recommended approval of the applicant's case.  The evidence clearly showed the applicant received complex medical treatment while on active duty for the condition for which he was declared unfit.  Also, the PRARNG and the chain of command failed to complete a line of duty (LOD) determination and ensure the applicant was properly referred to the PDES.

	b.  There is no evidence showing he was properly counseled regarding his right to complete a 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.

19.  On 6 July 2011, an advisory opinion was obtained from the NGB.  The advisory official recommended disapproval of the applicant's request and stated that:

	a.  In consultation with the NGB's Surgeon office, it was determined the applicant was properly discharged from the PRARNG in accordance with Army Regulation 40-501.  The presumption is that the Army was correct in retiring the Soldier with 15 years of military service for a non-line of duty condition.  He has not proven the Army committed an injustice or that he was entitled to a medical disability retirement.  The presumption is that the applicant was not counseled regarding his right to seek referral to the MEB/PEB, which is a duty-related process for in LOD conditions, because he was not eligible for such referral.

	b.  He requested to be transferred to the Retired Reserve under the provisions of Title 10, U.S. Code, section 1273b (retirement for a condition not incurred in LOD).  This form clearly states that this type of retirement application was for non-duty related conditions.  The ARNG became aware he was receiving 40 percent disability compensation from the VA for service-connected conditions.  This necessitated the State medical command to initiate the FFD evaluation.  The board determined the applicant did not meet retention standards 

	c.  The VA operates under a different statute than the military and makes its own independent findings which are not binding on the military which operates under Title 10.  The Title 38 rule gives the VA latitude to award service-connection for conditions for which was awarded by the VA.  That is likely why there reportedly there was no LOD investigation initiated.

	d.  The applicant would also have to wait until age 60 to receive retired pay while continuing to drill with compensation lower than that already received by the VA disability.  He cannot simultaneously receive active duty pay and 40 percent disability.  He would have to choose either to renounce the VA disability with possible future increases in disability awards and receive retirement at age 60.  He also may have received less money under the duty-related process since the VA considers all conditions and not just the conditions the PEB would only consider as rendering him unfit for continued service in calculating disability.

	e.  It is extremely unlikely the ARNG would discharge a member with 17 years of service if an in LOD under the non-duty related early retirement process.  The lack of an LOD does not de facto mean that the applicant was entitled to one.  Likewise, treatment for a chronic disease while on active duty does not automatically confer an in LOD status.  Such chronic disease can be present for many years before becoming overly symptomatic or being diagnosed in accordance with applicable regulation.

20.  On 6 July 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his rebuttal, dated 22 July 2011, the applicant disagreed with the opinion.  He referred to the PRARNG's memorandum that was issued on 10 November 2010.  He believes the NGB Surgeon's opinion is in error.  His separation should have been by way of the MEB/PEB process.  He was not offered such an opportunity.  Instead, he was separated under the non-duty related process for conditions that he clearly received while on active duty.  His chain of command simply failed to initiate the LOD investigation.

21.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.  Chapter 10 provides guidance on the basic policies, standards, and procedures for medical examinations and physical standards for ARNG Soldiers.  Paragraph 10-25 relates to ARNG Soldiers pending separation for failing to meet medical retention standards.  Sub-paragraph 10-25b states:

	a.  Soldiers' non-duty related impairments are eligible to be referred to a PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.

	b.  Soldiers pending separation for In the Line of Duty (ILOD) injuries or illnesses will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40.

22.  Army Regulation 635-40 establishes the Army's 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 3-4 provides that under the laws governing the 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:

		(1)  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; and

		(2)  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.

	b.  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.

	c.  Paragraph 8-9 states that a Soldier not on extended active duty, who is unfit because of physical disability:

		(1)  May be permanently retired or have his or her name placed on the temporary disability retired list (TDRL), if he or she has at least 20 years of service; their disability is rated at 30 percent or more; or his or her disability occurred in the LOD and is the proximate result of performing active duty or inactive duty training (IDT).

		(2)  May be separated with severance pay if his or her disability is rated at less than 30 percent, or he or she has less than 20 years of service; or their disability occurred in the line of duty, and is the proximate result of performing active duty or IDT

		(3)  May forfeit severance pay; be transferred to the Retired Reserve; and receive under the provisions of Title 10, U.S. Code, Section 12731 nondisability retired pay at age 60, if at least 20 qualifying years of service for retirement have been completed and transfer to the retired Reserve is requested.  According to the provisions of Title 10, U.S. Code, sections 1209 and 1213 all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve.  Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay.

		(4)  Will be separated without benefits in the following situations:  the  unfitting condition results from injury which is due to intentional misconduct or willful neglect; the disability was incurred during a period of unauthorized absence; or the disability was not incurred or aggravated as the proximate result of performing duty as specified in paragraph 8-2

23.  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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows he was ordered to active duty on 14 February 2003 and he was released from active duty on 6 September 2003.  During his service, he was seen for routine medical problems related to his diabetes and/or his knee surgery.  However, nowhere in his service record does it show he suffered an injury/wound or illness that rendered him physically unfit that warranted processing through the PDES.  It does not show that his diabetes or the underlying reason for his knee surgery was incurred during the period of active duty.

2.  The evidence further shows that over a year after his release from active duty he was referred to an FFDDB and he was subsequently found unfit for retention, discharged from the PRARNG, and transferred to the retired reserve.

3.  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/she disagrees with the determination that he/she is not medically fit for retention.  The applicant signed a statement acknowledging his discharge due to his medical condition, and there is no evidence he was not sufficiently counseled regarding his options, or provided the opportunity to make an election regarding his options.

4.  In view of the foregoing, there is an insufficient basis to grant his 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)                                         AR20100028537



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ABCMR Record of Proceedings (cont)                                         AR20100028537



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