IN THE CASE OF:	  

		BOARD DATE:	    8 September 2011

		DOCKET NUMBER:  AR20100028820 


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, the opportunity to be processed under the Physical Disability Evaluation System (PDES).  

2.  The applicant states he was erroneously discharged from the Puerto Rico Army National Guard (PRARNG) and he was transferred to the Retired Reserve after being determined unfit for retention by a Fit for Duty Determination Board (FFDDB) for his medical condition.  He states he was injured while on active duty in support of Operations Enduring Freedom and Noble Eagle and his unit failed to complete a line of duty determination.  Additionally, he was never afforded the opportunity to appear before a medical or physical evaluation board (MEB/PEB).

3.  The applicant provides:
* A copy of his FFDDB results and his acknowledgement of the proceedings
* A copy of his Physical Profile, dated 30 March 2005
* Copies of documents from his medical record showing he sought treatment for his condition
* A page from his Department of Veterans Affairs (VA) Rating Decision
* Copies of his separation documents
* A sworn statement regarding his injury on 24 April 2003
* A memorandum from the Deputy Chief of Staff for Personnel (DCSPER) of the PRANG Joint Forces Headquarters

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 was born on 31 March 1957 and he enlisted in the PRARNG on 13 January 1979 for a period of 6 years.  He completed his training as a light weapons infantryman and he remained in the PRARNG through a series of continuous reenlistments.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 14 December 1986.  He was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 1 February 1999.

3.  On 14 February 2003, the applicant was ordered to active duty in support of Operations Enduring Freedom and Noble Eagle.  He deployed to Kuwait from 1 April 2003 to 18 September 2003 and on 27 December 2003 he was honorably released from active duty at Fort Bragg, NC due to completion of required service.

4.  On 20 March 2005, the applicant was issued a permanent physical profile for chronic low back pain and right hip pain.  The physician indicated in the applicant’s record that he would be separated from the service due to those conditions.

5.  Documents provided by the applicant show he sought treatment for his conditions as early as 15 October 2003.

6.  On 20 March 2005 an FFDDB was convened at Camp Santiago Training Site, Salinas, Puerto Rico which determined that due to his condition, he could not perform all of the duties of his military occupational specialty (MOS) and that he qualified to retire by reason of his medical condition.  The memorandum issued by the PRARNG Joint Forces Headquarters DCSPER directed that the unit complete all administrative actions to accomplish the applicant’s separation 

within 30 days.  The memorandum also indicated that the applicant was receiving a 10 percent (%) disability rating percentage from the VA for his condition.

7.  On 21 March 2005, the day after the FFDDB was convened, the applicant was honorably discharged from the PRARNG under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26(1), due to being medical unfit for retention.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).

8.  On 10 November 2010, the DCSPER of the PRANG Joint Forces Headquarters dispatched a memorandum to the applicant in which he indicated that after conducting a detailed research of the applicant’s case, it was determined that he was not properly processed or counseled regarding his separation and recommended that the applicant apply to this Board.

9.  In the processing of this case, on 24 May 2011, a staff advisory opinion was obtained from the National Guard Bureau (NGB).  The advisory official opines that in consultation with the NGB’s Surgeon’s Office it was determined that the applicant was properly discharged from the PRARNG and recommended that his application be disapproved.  On 25 May 2011, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comment or a rebuttal.  He did not respond.

10.  National Guard Regulation 600-200, paragraph 8-26 j(1) provides that commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination.  Commanders who do not recommend retention will request the Soldier’s discharge.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTFs) who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating.  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. 

12.  Army Regulation 635-40 states that MEBs 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the evidence of record does not contain sufficient evidence to show that the applicant’s injuries were incurred in the line of duty or were aggravated by military duty.  Therefore, it must be presumed in the absence of evidence to the contrary that the applicant’s administrative discharge was accomplished in accordance with the applicable regulations with no violations of any of the applicant’s rights. 

2.  It must also be presumed, in the absence of evidence to the contrary, that at the time the applicant underwent his FFDDB, the medical personnel properly determined that his medical condition did not warrant consideration under the Physical Disability Evaluation System and/or referral to a medical and/or physical evaluation board.  Accordingly, it appears that he was properly discharged under administrative procedures in accordance with the applicable regulations.    

3.  Therefore, in the absence of sufficient credible evidence to show that at the time of his discharge his condition was incurred in the line of duty or were aggravated by military service, there appears to be no basis to grant his request for review under the PDES. 

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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.



ABCMR Record of Proceedings (cont)                                         AR20100028820





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028820



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1