IN THE CASE OF:	

		BOARD DATE:	 1 September 2011 

		DOCKET NUMBER:  AR20100029423 


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, his transfer to the Retired Reserve be voided and that he be processed through the Physical Disability Evaluation System (PDES) with a Medical Evaluation Board (MEBD)/Physical Evaluation Board (PEB).

2.  The applicant states his separation from the Puerto Rico Army National Guard (PRARNG) was erroneous.  He was assigned to the Retired Reserve by reason of permanent profile given by a Fit For Duty Determination Board (FFDDB) on 
20 March 2005 without the opportunity to elect referral to the PDES for proper medical disposition.

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 2 July 1998
* NHGTMO Form 5420/08 (Initial Evaluation/Questionnaire), dated 
18 November 2003
* medical treatment records from May to November 2003
* DA Form 2173, dated 22 January 2004
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* MRI (magnetic resonance imaging) dated 24 November 2004
* FFDDB dated 20 March 2005
* DA Form 3349 (Physical Profile) dated 20 March 2005
* DA Form 7349 (Initial Medical Review - Annual Medical Certificate)

* Standard Form (SF) 600 (Chronological Record of Medical Care) dated 
20 March 2005
* National Guard Bureau (NGB) Form 22 (National Guard Bureau Report of Separation and Record of Service)
* Selective Reserve 15-Year Letter, dated 2 May 2005
* orders assigning him to the Retired Reserve, dated 6 May 2005
* DD Form 2796 (Post-Deployment Health Assessment)
* DD Form 2697 (Report of Medical Assessment)
* DD Form 2808 (Report of Medical Examination)
* DA Form 4700 (Immunization Questionnaire)
* two Electrocardiograms

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.  He initially served in the PRARNG from 21 September 1981 until his honorable discharge on 1 December 1989.  He again enlisted in the PRARNG on 30 October 1995.  He was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  He received a determination of in line of duty (ILOD) for pain in his lower back incurred during physical training (PT) on 2 July 1998 during a period of active duty for training.

4.  On 14 February 2003, he was ordered to active duty in support of Operation Noble Eagle and Operation Enduring Freedom.  He served in Kuwait, the Suez Canal, Straits of Gibraltar, and Fujairah (one of the United Arab Emirates) from 11 April 2003 through 6 May 2003.  He served in Guantanamo Bay, Cuba from 28 July 2003 through 12 January 2004.

5.  On a NHGTMO 6520/08 from the Behavioral Healthcare Service, U.S. Naval Hospital, Guantanamo Bay, Cuba he indicated he suffered from headaches, palpitations, and nightmares.  He indicated he was homesick and couldn't make decisions.  According to the questionnaire he was diagnosed with a major depressive disorder (MDD), recurrent, mild to moderate; generalized anxiety disorder, chronic type; and post traumatic stress disorder (PTSD).  

6.  SF 600's dated 3 November and 3 December 2003 indicate he was receiving treatment for MDD and a generalized anxiety disorder.

7.   A DA Form 2173, dated 27 January 2004, indicated he was seen by the Combat Stress Treatment Department for stress secondary to constant suicide attempts by a detainee.  There is no in line of duty (ILOD) determination made on this form.

8.  On 5 February 2004, he was released from active duty and returned to his unit.  He completed 11 months and 22 days of active service that was characterized as honorable.

9.  The MRI, dated 3 May 2004, found he had:

* straightening of the normal lordosis
* degenerative changes at facet joints
* preserved vertebral bodies height
* mild narrowing L2-L3 intervertebral space

10.  An MRI, dated 24 November 2004, found:

	a.  L2-3 degenerated posterior concentric bulging disc with associated small central extruded disc with associated superior migration, the latter causing considerable compression of the ventral aspect of the thecal sac; and

	b.  L3-4 degenerated mild posterior concentric bulging disc with associated right intraforaminal spondylotic ridge contributing to moderate narrowing.  

11.  On 20 March 2005, an FFDDB found him medically unfit for retention based on his permanent physical profile L3 and S4.  The DA Form 3349 lists his medical condition as major depression with PTSD and low back pain.  In item 5 (Functional Activities for Permanent and Temporary Profiles) 4 out of 6 categories are marked "Needs MEB/PEB."  This form is not signed by the approval authority.

12.  There is no record he submitted any information or that he requested his records be submitted to the Medical Care/Physical Standards Branch of the National Guard Bureau for an advisory opinion or waiver determination.  There is no record he requested a referral to a PEB for a fitness determination.  Based on this lack of response it was assumed he concurred with the recommendation.

13.  On 20 March 2005, he was separated from the PRARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Retired) by reason of being unfit for retention.

14.  In a memorandum, dated 2 May 2005, the PRARNG Element, Joint Forces Headquarters, San Juan, PR notified him he had completed at least 15 years qualifying service (15-Year letter) and he was eligible to apply for retired pay on attaining age 60.

15.  PRARNG Element, Joint Forces Headquarters Orders 86-13, dated 6 May 2005, discharged him from the PRARNG and assigned him to the USAR Control Group (Retired) effective 20 March 2005.

16.  In a memorandum from the PRARNG, dated 1 December 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 and conducting a detailed research of his case they recommended approval of his request.  The evidence shows that he received complex medical treatment while on active duty for the condition for which he was declared unfit.  Evidence shows his chain of command and the PRARNG failed to complete an LOD investigation and ensure he was properly referred to the PDES.

	b.  There was no evidence the Soldier was properly counseled as to his rights to referral to a PEB for the purpose of disability benefits determination as a result of a medical condition incurred while on active duty.  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.

17.  On 9 June 2011, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  NGB recommended approval of the applicant's request to be processed through the PDES.  NGB recommended:

	a.  PRARNG complete a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) for the injury he received in 1998;

	b.  The Soldier's medical records be sent before an MEBD for disability evaluation processing and be referred to the PEB to determine suitability of a medical discharge.

18.  The advisory opinion was forwarded to the applicant for comment; however, no response has been received.

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

   a. Chapter 7 provides guidance on the classification of individual Soldiers according to functional abilities.  The physical profile serial system is based primarily upon the function of body systems and their relation to military duties. The functions of the various organs, systems, and integral parts of the body are considered.  Since the analysis of the individual’s medical, physical, and mental status plays an important role in assignment and welfare, not only must the functional grading be executed with great care, but clear and accurate descriptions of medical, physical, and mental deviations from normal are essential.  In developing the system, the functions have been considered under six factors designated “P–U–L–H–E–S.”  Four numerical designations are used to reflect different levels of functional capacity.  The basic purpose of the physical profile serial is to provide an index to overall functional capacity.  Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4.

   b. Paragraph 7-3c(4) states that a profile serial containing one or more numerical designators of “4” indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. 

   c. National Guard Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness only.  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.

20.  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.
21.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

22.  Title 10, U.S. Code (USC), Section 12731b (Special rule for members with physical disabilities not incurred in line of duty) provides, in pertinent part, that in the case of a member of the Selected Reserve of a reserve component 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 purposes of entitlement to retirement pay, determine to treat the member as having met the required 20 years of qualifying service.  The Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay if the member has completed at least 15 years, and less than 20 years of qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The PRARNG conceded the applicant had no LOD determinations for the medical problems for which he was disqualified.  They state that because they cannot show he was appropriately counseled as to his options he should now be referred to a PEB.  NGB supports this opinion.

2.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  Therefore, because PRARNG has no evidence of a record of counseling, it must be presumed the applicant received proper counseling at the time.  This is supported by the fact he was transferred to the Retired Reserve after only 15 years of service based on non-service related disabilities.

3.  He was not diagnosed with PTSD while he was on active duty.  It is only mentioned on his profile given over a year after his release from active duty.  There is no signature for the approval authority on the form.

4.  He suffered lower back pain in July 1998 while doing PT and it was determined his injury was ILOD.  He continued to serve in his rank and MOS for over 6 years with no record of treatment for a back condition.   His pain is now attributed to degenerative (aging) changes, mild compression of the vertebrae, and mild narrowing of the L2-3 disc space.  There is no connection between the degenerative changes causing chronic pain in 2004 and the pain that was associated with exercise in 1998 that was temporary.  
5.  In order to be processed through the PDES his disability must have been incurred or aggravated while he was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  Without a nexus between his condition in 2004 and his injury in 1998 there is insufficient evidence to grant his request.

6.  In view of the above, notwithstanding the opinions of PRARNG and NGB, there is insufficient evidence to grant his request.

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)                                         AR20100029423



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ABCMR Record of Proceedings (cont)                                         AR20100029423



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