IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20100028824 


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, to be processed through the Army's Physical Disability Evaluation System (PDES).

2.  The applicant states:

	a.  the effective date of his retirement is 6 months prior to the date of his evaluation that included his physician's recommendation for his separation;

	b.  the reason for his separation was based on a medical condition incurred coincidental to his active service;

	c.  he was subsequently re-rated at the mobilization station and not allowed to mobilize with his unit in July 2006; 

	d.  the Puerto Rico Army National Guard (PRARNG) failed to complete his medical separation process violating his due process as a Soldier as set forth by Title 10, U.S. Code, chapter 60; and 

	e.  the PRARNG forced his transfer to the Retired Reserve by granting him an early 15-year retirement.

3.  The applicant provides:

* his retirement order
* 
three DA Forms 3349 (Physical Profile)
*  two Fit For Duty Determination Board (FFDDB) Acknowledgement Statements
* a Standard Form (SF) 513 (Consultation Sheet)
* a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter)
* his National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement)
* a self-authored statement
* a DA Form 7349-R (Initial Medical Review - Annual Medical Certificate)
* two Standard Forms 600 (Chronological Record of Medical Care)

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, having prior active duty and Reserve component (RC) service, enlisted in the PRARNG on 11 April 1995.  His primary military occupational specialty (MOS) was 25U (Signal Supply Systems Specialist).

3.  A DA Form 7349-R, dated 11 June 2006, shows appropriate medical authority found the applicant fit for duty and assigned him a "1" rating on all six factors of his PULHES:  P - physical capacity or stamina; U - upper extremities; L - lower extremities; H - hearing and ears; E - eyes; and S - psychiatric.

4.  A PRARNG FFDDB Acknowledgement Statement, dated 11 June 2006, shows the applicant indicated:

	a.  he was in a car accident on 1 February 2006 and he passed a physical examination on 11 February 2006;

	b.  he was being treated by a psychiatric doctor due to "explosive impulse for negation" for the last year and a half;

	c.  he was taking Lexapro, Celebrex, Klonopin, and Flexeril as needed; and

	d.  he was fully fit without limitations.

5.  Orders 134-368, issued by the PRARNG, Joint Forces Headquarters, San Juan, Puerto Rico, dated 17 July 2006, includes the following instructions:

	a.  ordered to active duty in support of Operation Iraqi Freedom (OIF) on
23 July 2006;

	b.  relieved from his present RC status and ordered to report for a period of active duty not to exceed 25 days for mobilization processing; and

	c.  if upon reporting to active duty, he fails to meet deployment medical standards (whether temporary or permanent medical conditions), he may be released from active duty (REFRAD) and returned to his home address, subject to a subsequent order to active duty upon resolution of the disqualifying condition.

6.  On 29 July 2006, he was referred to Behavioral Health to be evaluated for deployment clearance.  The attending physician:

* indicated the applicant was diagnosed with major depressive and dysthymia disorder
* determined he was non-deployable
* assigned a temporary S-3 profile
* recommended his REFRAD

7.  On 11 August 2006, the approving medical authority indicated the applicant had a temporary medical condition that would require an extensive period of evaluation and/or treatment which could finally result in his return to duty, issuance of a permanent profile, and referral to an MOS Medical Retention Board (MMRB) or a Medical Evaluation Board (MEB).  His unit commander acknowledged the applicant was non-deployable.

8.  Order 226-004, issued by Headquarters, Fort McCoy, WI, dated 14 August 2006, directed the applicant's REFRAD on 15 August 2006 and assignment to The Adjutant General, PRARNG.

9.  A DA Form 3349, dated 7 May 2007, shows the applicant was issued a permanent S-4 profile.  It also shows the applicant was:

* REFRAD from Fort McCoy, WI, unable for outside the continental United States (OCONUS) deployment
* still in psychiatric treatment using medication with poor response
* out of work
* in long term disability
* pending claim for social security

10.  An FFDDB acknowledgement statement shows the applicant was referred for MEB/Physical Evaluation Board (PEB) processing with a condition that has an approved line of duty (LOD).  The approved LOD is not included with this statement and it is not included in his official military personnel file (OMPF).

11.  On 4 September 2007, the Deputy Chief of Staff for Personnel, PRARNG Element, Joint Forces Headquarters, issued the applicant his 15-Year Letter.

12.  Order Number 282-511, issued by the PRARNG Element, dated 9 October 2007, discharged the applicant from the ARNG and assigned him to the Retired Reserve, effective 6 January 2007.

13.  During the processing of this case an advisory opinion was obtained from Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request.  He also indicates:

	a.  The PRARNG determined the applicant's separation date is incorrect and as a result recommended the effective date of his discharge be changed from 6 January 2007 to 31 May 2007.

	b.  The applicant arrived at the Soldier Readiness Processing for pre-deployment screening already under treatment and on medications for depression and dysthymia (a chronic mood disorder), and that as a result an Army psychiatrist recommended REFRAD in accordance with the guidelines in Title 10, U.S. Code, section 12731b.

	c.  The applicant was eventually given a permanent profile by an ARNG medical authority and the evaluation form showed the "duty-related" box was checked, but there was no evidence of the psychiatric illness being incurred or permanently aggravated by military duty and no DA Form 2173 (Statement of Medical Examination and Duty Status) with an approved LOD.

	d.  The applicant reported that his psychiatric treatment existed prior to entry into this period of active duty and did not confer in the LOD status or eligibility for processing through the PDES (MEB/PEB).

   e.  In accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, Soldiers who fail to meet medical retention standards will not be sent to the mobilization station.  Paragraph 7-2b(1) states RC Soldiers identified within the first 25 days as having a pre-existing medical condition that renders the member non-deployable may be REFRAD immediately.

   f.  The applicant was REFRAD based on a pre-existing mental condition that rendered him non-deployable and although he was referred to an MEB/PEB, it is presumed he never entered the MEB/PEB process due to the fact that there was no evidence of a service-connected injury/illness or LOD approval of the mental condition that rendered him unfit to continue service.  Accordingly, he recommended denial of the applicant's request.

14.  On 31 May 2011, the applicant expressed his disagreement with the advisory opinion indicating:

	a.  the PRARNG knew of his emotional conditions and violated his due process rights when they placed him on orders sending him to the mobilization station;

	b.  he was viciously and deliberately placed on orders for mobilization only to meet mission requirements;

	c.  the entire mobilization process placed a great amount of stress on him aggravating his nervous condition rendering him both non-deployable and unemployable; and

	d.  his chain of command failed to comply with their duty and responsibilities by not processing him through a MEB/PEB within the required 6 months upon his return to his unit.

15.  Title 10, U.S. Code, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement.  It states that a person is entitled, upon application, to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service.

16.  Title 10, U.S. Code, section 12731b provides a special rule for members with physical disabilities not incurred in the LOD.  It states, in pertinent part, that in the 

case of a member of the Selected Reserve of an RC who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member the notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes.  This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC due to disability not incurred in the LOD.  

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for MEBs 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 Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

18.  Army Regulation 635-40, paragraph 3-4, provides that to be eligible to receive retirement and severance pay benefits, a 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be processed through the Army's PDES.

2.  The evidence of record confirms the applicant acknowledged he was fully fit for duty on 11 June 2006, just prior to being ordered to active duty in support of OIF.  During his pre-deployment screening, the appropriate medical authority determined he was non-deployable based on a pre-existing medical condition for which he was currently receiving treatment, issued him a temporary S-3 profile, and recommended his REFRAD.  Upon return to his home unit, he was subsequently issued a permanent S-4 profile and referred to an MEB/PEB with a condition that has an approved LOD.  However, his military record does not contain any documents and he did not provide any evidence to confirm he ever received an approved LOD.  Lacking an approved LOD and complete medical record, there is an insufficient evidentiary basis to substantiate his claim that his medical condition was aggravated during his brief call to active duty for pre-deployment screening, of
25 days or less.

3.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  However, a member of the Selected Reserve of a RC who is medically disqualified for continued service in a RC due to disability not incurred in the LOD may be considered as having met the service requirement and may be issued a notification if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes.  As a result, the applicant was appropriately retired from the RC and there is no basis upon which to grant the requested relief in this case.

4.  Finally, there is no evidence of record and the applicant failed to submit any evidence to substantiate his claim his rights were violated when he was ordered to active duty with existing medical conditions known by the PRARNG and 
medical personnel.  The evidence of record confirms nearly 2 months prior to being called to active duty, the appropriate medical authority determined the applicant was fit for duty with his existing medical conditions and the applicant also acknowledged he was fully fit.  Accordingly, he was appropriately ordered to active duty as a member of the RC in support and defense of his country as he swore to do when he enlisted in the PRARNG.

5.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20100028824



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ABCMR Record of Proceedings (cont)                                         AR20100028824



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