IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20100028773 


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, and that he be processed through the Army Physical Disability Evaluation System (PDES).

2.  The applicant states, in effect:

   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 transferred to the Retired Reserve by reason of a permanent profile given after a Fit for Duty Determination Board (FFDDB), convened on       13 June 2004, without the opportunity to elect referral to the PDES for proper medical disposition.

   c. The condition for which he was declared unfit for retention was clearly documented as having occurred on active duty, and further documented as having been aggravated during a later period of active duty.

   d. Neither his commander, nor any official within the PRARNG, ensured that a Line of Duty (LOD) investigation was conducted prior to his release from active duty (REFRAD).  
   e. He should have been referred to the PDES under the presumptive LOD rule.

   f. He was not given the opportunity to be processed in accordance with Army Regulation 635-40, for the purpose of establishing disposition and disability benefits.

   g. Immediately following his REFRAD, he filed a disability claim with the Department of Veterans Affairs (VA) and was awarded a 30 percent disability rating.

3.  The applicant provides the following, submitted in chronological order:

* various active duty orders 
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DA Forms 2823 (Sworn Statement)
* DA Forms 689 (Individual Sick Slip)
* Standard Forms (SF) 600 (Chronological Record of Medical Care)
* medical documents related to care received from civilian providers
* DD Form 2807-1 (Report of Medical History)
* DD Form 2808 (Report of Medical Examination)
* hospital radiology reports
* DA Form 3349 (Physical Profile)
* Presumptive Line of Duty memorandum
* National Guard Regulation (NGR) Form 40-501 (Annual Medical Certification)
* FFDDB acknowledgement statement and decision memorandum
* discharge orders
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* NGB Form 23B (Army National Guard Retirement Points History Statement)
* NGB Form 23D (Notification of Eligibility for Retired Pay at Age 60)
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) or (Report of Separation from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* memorandum from the PRARNG Office of the Deputy Chief of Staff for Personnel




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, for a 6-year term, on 15 December 1978.  He completed training and was awarded military occupational specialties (MOS) 11B (Infantryman) and 95B (Military Police).  He served in the Connecticut Army National Guard and the PRARNG, through a series of extensions and/or reenlistments, and attained the rank of sergeant first class.      

3.  On 8 August 1999, he was issued his Notification of Eligibility for Retired Pay at Age 60 (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.  

4.  On 13 April 2001, he was ordered to active duty as a member of the PRARNG, during the period 13 April 2001 through 29 April 2001, in support of Operation New Horizons 2001.  

5.  On 4 May 2001, a line of duty investigation was initiated based on an injury he sustained on 28 April 2001.  The DA Form 2173 shows he was diagnosed with low back pain, resulting from an injury incurred while lifting a foot locker.  This form states the injury occurred while he was on active duty; however, no line of duty determination was made and any corresponding endorsements to this form are not contained within the available record.  

6.  On 1 October 2001, he received his annual DA Form 2166-7 (NCO Evaluation Report), for the period covering 1 October 2000 through 30 September 2001, which shows he received a "success" rating in Part IVc (Physical Fitness and Military Bearing).  He was rated as "fully capable" by his rater and "successful" and "superior" by his senior rater.

7.  On 13 February 2003, he was ordered to active duty as a member of the PRARNG, for a period not to exceed 270 days, in support of Operations Desert Spring and Iraqi Freedom.  

8.  On 16 September 2003, during his demobilization physical at Fort McCoy, WI, he complained of lower back pain and requested referral to a civilian provider to obtain a magnetic resonance imaging (MRI) examination of his lower back.  On 23 September 2003, he received an MRI examination of his lower back, which found:

* some moderate central canal stenosis at the L4 level which the examiner believed was due to a congenitally narrow canal at this level
* mild facet arthropathy [degenerative arthritis] at the L4 and L5 levels, which was determined to be a minor contributor to the central canal stenosis at the L4 level previously described
* no significant central canal stenosis seen at the L3 or L5 levels
* a bulging annulus [bulging disc] at the L4 level

9.  On 29 September 2003, the 7228th U.S. Army Medical Support Unit, Fort McCoy, WI, issued a Presumptive Line of Duty (LOD) memorandum, which stated that the applicant was not treated for low back pain at the time the Presumptive LOD determination was made, rather, the determination was based on the illness or injury as it was described to medical authorities.

10.  On 15 October 2003, he was honorably released from active duty, by reason of completing his required service, after completing 8 months and 3 days of net active service.  His DD Form 214 shows he served in the Kingdom of Saudi Arabia from 21 April 2003 through 30 September 2003.  

11.  On 30 October 2003, he received his annual DA Form 2166-8 (NCO Evaluation Report), for the period covering 1 September 2002 through               30 September 2003, which shows he received a "success" rating in Part IVc.    He was rated as "fully capable" by his rater and "successful" and "superior" by his senior rater.

12.  On 22 May 2004, he completed an NGR Form 40-501, Annual Medical Certification, in which he stated he had lower back pain and a bulging annulus at the L4 level.  Subsequently, he was referred to an FFDDB.




13.  On 13 June 2004, he was evaluated by an FFDDB for chronic incapacity lower back pain.  The board determined:

* he was not able to comply with all of his MOS duties
* he received a 20% Department of Veterans Affairs (VA) disability rating
* he had completed 25 years of service and was qualified for retirement by Medical Conditions

The board recommended he receive an L4 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.

14.  On 13 June 2004, he was given a permanent profile for chronic incapacitating lower back pain.  His DA Form 3349 shows his PULHES at the time was 1-1-4-1-1-1.  The profiling physician did not indicate on this form the extent to which his physical limitations required further evaluation by a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB). 

15.  He completed an FFDDB "Acknowledge Statement," in which he acknowledged he would be discharged from the ARNG because of his L4 permanent profile.  This form is dated 12 June 2004, which is prior to the convening of the FFDDB.

16.  Orders 177-16, Joint Forces Headquarters, PRARNG, dated 20 September 2004, honorably discharged him from the ARNG and assigned him to the U.S. Army Reserve Control Group (Retired Reserve), effective 13 June 2004.  His NGB Form 22 shows the following:  

* Item 10d  (Total Service for Pay) shows he completed 25 years, 5 months, and 29 days of total service upon his date of discharge
* Item 23 (Authority and Reason) shows he was medically unfit for retention

17.  An NGB Form 23B, dated 18 July 2005, shows he performed duty with his unit from December 2000 through June 2004.

18.  In a memorandum to the applicant, dated 17 November 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 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 12 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 an MOS Medical Retention Board (MMRB) prior to being released from the PRARNG.  

   b. The applicant has an approved LOD for an injury that occurred in 2001.                                            An FFDDB was held on 12 June 2004 [sic], which found him unfit, and he was honorably discharged on 13 June 2004.  There is no supporting documentation indicating he was counseled as to his rights to accept referral to MEB/PEB for the purpose of disability benefits.  

   c. The applicant's medical records should be sent before an MEB for disability evaluation processing, then be referred to the PEB to determine his suitability for a medical discharge.

20.  The applicant provides numerous SF 600s, which document the treatment he received for lower back pain since his injury of 28 April 2001.

   a. On an SF 600 dated 17 December 2001, the medical practitioner noted the applicant complained of reoccurring low-back pain from an injury occurring more than 6 months before, but also noted the applicant had been asymptomatic since that time.  Additionally, the practitioner states the applicant "has no sxs (symptoms) of any serious pain."

   b. On an SF 600 dated 18 December 2001, the medical practitioner noted the source of the applicant's lumbar injury was a motor vehicle accident that occurred in 1986. 

   c. On a DD Form 2161 dated 16 September 2003, regarding the reason for an MRI request, the medical practitioner stated "43 year old male with chronic back pain x 5 years."

   d. On an SF 600 dated 29 September 2003, regarding a follow-up appointment concerning his MRI results, the medical practitioner characterizes his MRI results as "essentially negative."

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

   a. Chapter 3 provides guidance on the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for service.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of their duties; may compromise or aggravate the Soldier’s health or well-being if the Soldier were to remain in the military Service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the Government if the individual Soldier were to remain in the military Service.  

   b. Paragraph 7-11a(3)(e) states that Item 4 of the DA Form 3349 will specify the profile type - temporary or permanent.  If the profile is permanent, the profiling officer must assess if the Soldier meets the retention standards of Army Regulation 40-501, chapter 3.  Those Soldiers who meet retention standards but have at least a permanent 3 or 4 PULHES serial will be referred to an MMRB in accordance with Army Regulation 600–60, unless waived by the MMRB convening authority.  Those Soldiers who do not meet retention standards must be referred to an MEB as per chapter 3.  

   c. Chapter 10 provides guidance on the basic policies, standards, and procedures for medical examinations and physical standards for ARNG and Army National Guard of the United States (ARNGUS) Soldiers.  Paragraph 10-25 relates to ARNG and ARNGUS Soldiers pending separation for failing to meet medical retention standards.  Sub-paragraph 10-25b states: 

      (1) 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. 

      (2) 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.

22.  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 3-4 provides that 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: (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 8-6 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.  The Medical Treatment Facility (MTF) commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.     If the Soldier is not eligible for referral to a PEB, the MTF will notify the Soldier’s unit commander for disposition under applicable regulations.

   d. 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 TDRL, if:
* he or she has at least 20 years of service
* their disability is rated at 30 percent or more
* his or her disability occurred in the line of duty, and is the proximate result of performing active duty or IDT

      (2) May be separated with severance pay if:

* his or her disability is rated at less than 30 percent
* he or she has less than 20 years of service
* 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, (10 USC 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 10 USC 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
* 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 and National Guard Regulation 40-501. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his transfer to the Retired Reserve be voided and that he be allowed to undergo an MEB/PEB under the Army PDES.

2.  The evidence of record shows his back injury resulted from a motor vehicle accident that occurred in 1986.  The evidence of record further shows he aggravated that injury while serving on active duty in 2001, while carrying a foot-locker, and again during his deployment to Saudi Arabia in 2003.  There is evidence that his lower-back pain was present and reoccurring for at least           5 years before he was given an MRI test in 2003, and that he was at times asymptomatic for extended periods.  His MRI examiner believed his back issues were, to an extent, congenital.  Consequently, there is no definitive link between his lower-back pain and the active duty injury he experienced on 28 April 2001.   

3.  The evidence further shows that after completing his annual medical certification, wherein he identified his previous injury, he was referred to an FFDDB and was subsequently found unfit for retention, discharged from the PRARNG, and transferred to the retired reserve.  

4.  The applicant contends he should have been referred to an MEB, based on his Presumptive LOD; however, his DA Form 2173, from 4 May 2001, is void of any LOD determination.  He did not have an approved LOD, and the Presumptive LOD is basically a personal statement, based on his first-hand account of his injury.  

5.  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.

6.  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.

7.  In view of the foregoing, there is an insufficient basis to grant 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)                                         AR20100026348



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ABCMR Record of Proceedings (cont)                                         AR20100028773



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