IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110002287 


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 reconsideration of his request that the narrative reason for his discharge be changed from medically disqualified to medical retirement.

2.  The applicant states he served in the U.S. Army for 18 years in an enlisted status as a UH-60 Crew Chief, with over 14 years of active service.  In January 1997, he transferred to the Army National Guard of the United States (ARNGUS) and Arizona Army National Guard (AZARNG) to pursue warrant officer flight school.  He was ordered to active duty for training (ADT) in June 2003 to attend flight training at Fort Rucker, AL.  He completed the training and, while awaiting follow-on training, he sustained "a neck injury (in May 2004) that kept [him] from doing anything."

   a.  It caused a loss of half his upper body strength and unbearable pain.

   b.  He sought medical treatment and the military doctors prescribed pain medication.  He was given a magnetic resonance imaging (MRI) and the results showed three bulging disks in his neck.

   c.  An Army orthopedic surgeon explained to him that his condition was the result of 19 years of flying in helicopters while wearing a helmet and enduring the vibrations of the aircraft.  He was issued a 90-day temporary profile with physical limitations.

   d.  Acting on the advice of the Guard Liaison, the applicant went to a civilian chiropractor and began to realize a remarkable difference in his condition.

   e.  At the end of his 90-day temporary profile, the applicant returned for a follow-up visit with the Army orthopedic surgeon.  However, the surgeon was scheduled to deploy overseas in three days and did not have the time to fully address the applicant's issue or further courses of action.  One course of action was surgery; however, there was only a 50% chance that it would do anything positive and it would likely end the applicant's flying career.

   f.  The surgeon asked the applicant if he wanted to continue to fly.  The applicant answered in the affirmative, the surgeon cleared him for flying status, and issued him a permanent profile exempting him from the physical activities of running and performing sit-ups.  The surgeon also recommended that the applicant consider transitioning to fixed wing aircraft.  However, officials in the AZARNG denied the applicant this course of action.  Upon completion of training and termination of his ADT orders in July 2005, the applicant returned to his AZARNG unit.

   g.  The applicant was evaluated by the AZARNG Flight Surgeon and, upon reviewing his MRI, the flight surgeon issued him a permanent "DNF" (Duties Not to include Flying) slip.  His permanent profile was updated to include no wearing of a helmet of any kind as well as no flying.

   h.  The applicant's regimental commander referred him to an AZARNG Medical Review Board (MRB) rather than the U.S. Army's Physical Disability Evaluation System (PDES).  The applicant acknowledges that he was unaware of the difference between the two options.  He asserts that the PDES would have reviewed his case as a condition that occurred while on active duty status and also considered him for medical retirement.  Instead, the AZARNG MRB only reviewed his deployability status and determined that he should be retired from the AZARNG.  In effect, this means no benefits until age 60.

   i.  The applicant offers information that he has gained from other Soldiers.  Specifically, that his case should have been referred to the PDES for review by a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). 

   j.  He states that the Army Board for Correction of Military Records (ABCMR), Record of Proceedings (ROP), contains several points that are invalid and the findings are in error.  He states the ABCMR found that he did not receive treatment until July 2004 and that his ADT did not start until June 2004.  He asserts that both of these findings are incorrect.  The Board assumed that his condition occurred while he was not entitled to basic pay (i.e. on active duty status). This is contradictory because the Board acknowledged that he was on ADT at Fort Rucker, AL.  He adds that the release from active duty orders cited in paragraph 5 of the ROP do not even pertain to him.  In addition, it appears the Board did not review his medical records, which one would think is a necessary element in a case involving the medical board process.

   k.  The applicant concludes by asserting his condition occurred as direct result of his Army aviation service and he requests correction of his records to show he was medically retired.

3.  The applicant provides no additional documentary evidence in support of his request for reconsideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090018727, on 29 June 2010.

2.  The applicant was born on 28 October 1967.

3.  The applicant had prior enlisted service in the Regular Army from 13 August 1985 through 26 January 1997 in military occupational specialty (MOS) 67T
(UH-60 Helicopter Repairer).  He served in an enlisted status in the ARNGUS and AZARNG from 27 January 1997 through 18 August 2003.

4.  Headquarters, AZARNG, Office of the Adjutant General, Phoenix, AZ, Orders 128-120, dated 20 June 2003 (as amended by Orders 128-212, dated 20 June 2003), ordered the applicant to ADT on 27 June 2003 to attend Warrant Officer Candidate School at Fort, Rucker, AL, from 1 July 2003 to 11 June 2004.

5.  The applicant was appointed as a warrant officer one (WO1)/pay grade WO1, in the ARNGUS and AZARNG on 19 August 2003.  

6.  Headquarters, AZARNG, Office of the Adjutant General, Phoenix, AZ, Orders 116-164, dated 3 June 2004 (as amended by Orders 006-104, dated
8 January 2005, and Orders 043-140, dated 2 March 2005), ordered the applicant to ADT on 12 June 2004 for Aviation Flight Training Continuation at Fort Rucker, AL, from 12 June 2004 to 13 October 2005.

7.  Joint Force Headquarters - Arizona, Phoenix, AZ, letter, dated 30 December 2004, notified the applicant of his eligibility for retired pay at age 60.

8.  A Confidential Patient Information form, completed on 26 July 2004, shows the applicant suffered from a condition in his neck for two and one-half months.

9.  A DA Form 1059 (Service School Academic Evaluation Report [AER]), covering the period 3 August 2003 through 10 March 2005, shows the applicant attended the resident Aviation Warrant Officer 1, 2005-007 course at Fort Rucker, AL, during the period 24 January 2005 through 10 March 2005 and he successfully completed the Initial Entry Rotary Wing (IERW) and Aviation Warrant Officer Basic Course (WOBC) as an honor graduate.

   a.  Item 13 (Performance Summary) shows the evaluating officer placed an "x" in the block indicating the applicant "Exceeded Course Standards."

   b.  Item 16 (Comments) shows the applicant demonstrated outstanding proficiency in all communication and leadership skills and the evaluating officer commented, "[c]hallenge this officer with very demanding additional duties in future aviation assignments."  He also noted that the applicant passed the Army Physical Fitness Test (APFT) on 21 January 2005 (i.e., "Pass 21 JAN 05").

10.  The applicant's ADT orders were terminated and he returned to his AZARNG unit in July 2005.

11.  The applicant's military personnel records do not include any medical documents related to the medical condition under review.

12.  Joint Force Headquarters - Arizona, Phoenix, AZ, Orders 338-602, dated
4 December 2006, honorably separated the applicant from the Army National Guard (ARNG) on 31 December 2006 and transferred him to the Retired Reserve, effective 1 January 2007.

13.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant entered service this period on 19 August 2003 and he was honorably separated from the AZARNG on 31 December 2006 under the provisions of National Guard Regulation (NGR) 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions), paragraph 10-2a(11), by reason of being medically disqualified.

   a.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve).

   b.  He competed 3 years, 4 months, and 12 days of net service this period and 22 years of total service for retired pay.

14.  NGB, Washington, DC, Special Orders Number 12 AR, dated 18 January 2007, announced the change in the applicant's Federal status (i.e., Federal recognition withdrawal), effective 31 December 2006, and his transfer from his AZARNG unit to the USAR, Retired Reserve.

15.  Headquarters, I Corps and Fort Lewis, Military Personnel Division, Fort Lewis, WA, Orders 251-0040, dated 8 September 2005, shows Major Keith D.
B----, was released from active duty (REFRAD) on 13 September 2005, not by reason of physical disability, and assigned to a unit in the AZARNG.  (This order was erroneously cited as pertaining to the applicant in the original consideration of the applicant's case.)

16.  National Guard Regulation 600-101 provides procedures for processing all applications for Federal Recognition.  Chapter 10 (Termination of appointment and withdrawal of Federal recognition), paragraph 10-2a(11), shows the appointment of an ARNG warrant officer should be terminated when the warrant officer becomes medically disqualified for further military service.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability (incurred while entitled to basic pay) to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the Physical Disability Evaluation System.

18.  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.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for correction of his records to show he was medically retired should be reconsidered because he was not referred to the PDES for evaluation by an MEB and PEB despite the fact that his neck condition occurred while he was on ADT.

2.  Records show the applicant was on ADT from 27 June 2003 through
11 June 2004 and from 12 June 2004 to July 2005.  As such, he was continuously on ADT from 27 June 2003 to July 2005.

   a.  The applicant's Confidential Patient Information, dated 26 July 2004, indicates he suffered from a neck condition for 2 1/2 months (i.e., beginning sometime in May 2004).  Therefore, the evidence of record supports the applicant's contention that he suffered from a neck condition while on ADT.

   b.  The Board's Discussion and Conclusions in the original consideration of the applicant's case that the condition started before his June 2004 ADT is factually correct.  This statement taken in isolation (as the applicant does in his request for reconsideration) allows for a conclusion to be drawn that the applicant was not on ADT at the time, which is not the case.  However, the previous paragraph clearly states, "[t]he applicant's contention that he had a neck injury while on active status at Fort Rucker, AL for flight school and other training is acknowledged."  Thus, the Board's decision to deny relief was not based on a conclusion that the applicant was not on ADT when he reported the occurrence of the medical condition that is currently under review in this case.

3.  The orders citing a REFRAD of 13 September 2005 in the original consideration of the applicant's case were mistakenly included in his case. Records show the applicant was actually released from ADT and returned to his AZARNG unit in July 2005.  While the error is embarrassing, the incorrectly cited order was irrelevant with respect to the decision rendered in the applicant's case, as there is no evidence of medical treatment subsequent to 26 July 2004 through the date he was released from ADT in July 2005.

4.  The ABCMR decides cases based on the evidence in the available military records and the independent evidence submitted with the application.

   a.  The applicant's AER, completed after he reported his neck condition in May 2004 and while he was still on ADT in March 2005 [emphasis added], shows he exceeded course standards, demonstrated outstanding leadership skills, and
he passed the APFT [emphasis added].

   b.  There is no record of any injury while the applicant was on ADT.  In fact, when the applicant left ADT he was not only "fit," but he was also on flight status.

   c.  The Patient Information record regarding the applicant's neck pain does not establish that his condition was incurred "In Line of Duty" (ILOD).  In fact, the applicant's MRI examination was consistent with a long-term, chronic process common with aging.
   
   d.  The State MRB was the appropriate venue to receive a "Fit For Duty Evaluation."  The State MRB is not authorized to confer a medical retirement, but it is the first step in being referred to an MEB.  If the disqualifying medical condition had been "ILOD," the applicant would have been referred to an MEB. 

5.  The applicant did not provide any medical records, the State MRB proceedings, or any new evidence in support of his request for reconsideration.

6.  In view of the foregoing, there is no basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20090018727, dated 29 June 2010.




      __________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)                                         AR20110002287



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ABCMR Record of Proceedings (cont)                                         AR20110002287



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