IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110000082 


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 correction of his military records by voiding his transfer to the Retired Reserve and providing him a referral to a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) for proper consideration of his medical condition.

2.  The applicant states he was denied the opportunity to elect referral to the MEB/PEB; he was simply transferred to the Retired Reserve due to a permanent physical profile.

3.  The applicant provides copies of:  

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2796 (Post-Deployment Health Assessment)
* DD Form 2807-1 (Report of Medical History)
* Memorandum for Walter Reed Army Medical Center, dated 13 January 2004
* Standard Form 600 (Medical Record - Womack Army Medical Center)
* Memorandum, U.S. Army Human Resources Command, dated 1 April 2004
* Orders 046-25, Puerto Rico State Area Command, Army National Guard, dated 22 February 2003
* Memorandum, Womack Army Medical Center, dated 29 July 2003, and 
2 February 2004
* Orders 39-40, Joint Forces Headquarters, dated 1 March 2005
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated  1 May 2003
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Memorandum, McArthur Army Reserve Center, dated 4 February 2004
* Two DA Forms 2173 (Statement of Medical Examination and Duty Status), dated in October 2003 and February 2004
* Applicant's statement, dated 16 September 2003 

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.  On 14 February 2003, the applicant was ordered to active duty with his Puerto Rico Army National guard (PRARNG) unit in support of Operations Noble Eagle and Iraqi Freedom. 

3.  On 5 March 2003, the applicant arrived at Fort AP Hill, Virginia.  He picked up two duffel bags and while on his way to the barracks he stepped in a hole and twisted his left foot, causing him a lot of pain. 

4.  A memorandum from the Podiatry Service, Womack Army Medical Center, dated 29 July 2003, indicates the applicant was scheduled for surgery on 
20 August 2003 for a fracture of the left metatarsal.  Recovery was expected to take 4 to 6 months.

5.  A DA Form 2173, dated in October 2003, stated the applicant was currently under treatment due to an injury and that he could continue his medical treatment at any Department of Veterans Affairs (VA) hospital or medical treatment facility after he was released from active duty. 

6.  A memorandum from the Commander, Headquarters and Headquarters Company, McArthur Army Reserve Center, dated 4 February 2004, states the applicant had been medically cleared for release from active duty and that he would have to continue his medical treatment at the local VA or military facility.

7.  On 28 April 2004, the applicant was released from active duty due to completion of required active duty service. 

8.  An NGB Form 22, effective 27 October 2004, shows the applicant was separated from the PRARNG.

9.  Orders 39-40, Joint Forces Headquarters, dated 1 March 2005, discharged the applicant from the PRARNG and assigned him to the U.S. Army Reserve Control Group (Retired), effective 27 October 2004.

10.  In a memorandum, dated 10 November 2010, the G1 (Personnel Officer), PRARNG, stated that after reviewing the applicant's separation action and conducting detailed research of his situation the G1determined that the evidence clearly showed he had received complex medical treatment while on active duty for a condition for which he had been declared "unfit."  The evidence also showed his chain of command and the PRARNG failed to complete a line of duty (LOD) investigation and to properly refer him for Physical Disability Evaluation System (PDES) processing.  The G1 further stated the applicant was no longer a member of the PRARNG.  The G1 did not have the authority to order his reinstatement, or to change his retirement status to a disability retirement.  

11.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB:  

	a.  The opinion recommended that the applicant's medical records be sent before an MEB for disability evaluation processing and that he also be referred to a PEB for determination of a suitable medical disposition.

	b.  The opinion states the applicant should have been afforded the opportunity to appear before a Military Occupational Specialty Medical Retention Board.  The PRARNG states no LOD investigation was completed for the injury he received in 2003, while preparing for mobilization to Kuwait.  He was subsequently evaluated by a doctor upon his return from mobilization.  On 
20 August 2003, he underwent surgery for a fracture to his left foot.

	c.  The opinion states the PRARNG should complete a DD Form 261 (Report of Investigation LOD and Misconduct Status), appoint an investigating officer, enter the case into the LOD module, and submit the action for approval.

	d.  The opinion states the applicant was found unfit for duty by a Fit for Duty Determination Board, which is a State level fit for duty evaluation directed by the commander.  There is no documentation available to confirm a board was held.  The applicant was honorably discharged from the PRARNG on 27 October 2004.  There is no supporting documentation indicating he was counseled as to his rights to accept referral to an MEB/PEB for the purpose of disability benefits.

	e.  The PRARNG supports this opinion.

12.  On 26 May 2011, the advisory opinion was sent to the applicant for his information and an opportunity to respond.  No response was received.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the Commander, Medical Treatment Facility will:

	a.  provide a thorough and prompt evaluation when a Soldier's medical condition becomes questionable in respect to physical ability to perform duty;

	b.  appoint a PEB liaison officer to counsel Soldiers undergoing physical disability processing;

	c.  ensure MEB proceedings referred to the PEB are complete, accurate, and fully documented.

14.  Army Regulation 40-501 (Standards of Medical Fitness) provides that Soldiers who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by voiding his transfer to the Retired Reserve and providing him a referral to the MEB and PEB for proper consideration of his medical condition.

2.  The available evidence shows the applicant was injured while on active duty.  He was subsequently released from active duty and transferred to the Retired Reserve without the benefit of being properly evaluated by an MEB and PEB. 

3.  The PRARNG and the NGB have examined the facts of this case and opined that the applicant was not given proper medical evaluations while in an active duty status and that he should now be afforded such.



4.  Notwithstanding the opinions of both the PRARNG and the NGB, the available documentation does not provide sufficient evidence for the Board to make a determination whether the applicant's injury (a broken foot) was of such severity as to have rendered him unfit for duty.

5.  In view of the above, the applicant's request should be denied.  However, should he have, or be able to obtain, documentation of the Fit for Duty Determination Board's evaluation and determination and his service medical records, he may submit another application for consideration.

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)                                         AR20110000082



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ABCMR Record of Proceedings (cont)                                         AR20110000082



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