IN THE CASE OF:	  

		BOARD DATE:	  7 February 2012

		DOCKET NUMBER:  AR20110002892 


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 active duty status time, pay and allowances, and benefits for the period 9 November 2009 to 14 March 2011, the period he was undergoing physical disability processing until his official retirement date.

2.  He states:

	a.  By regulation, a Soldier is to remain on active duty status until the medical evaluation board (MEB) and physical evaluation board (PEB) proceedings are completed.

	b.  He submitted this same request through his chain of command, but it was disregarded.  He was demobilized and returned to his troop program unit.

3.  He provides:

* page 40 of Department of the Army Warrior Transition Unit (WTU) Consolidated Guidance, dated 18 July 2008
* Orders A-11-823251, dated 17 November 2008, ordering him to active duty for contingency operations for operational support (CO-ADOS) in support of Operation Enduring Freedom (OEF)
* letter from a physician, dated 16 July 2009
* memorandum, dated 31 August 2009, regarding his MEB
* Orders 301-1006, dated 28 October 2009, releasing him from active duty not by reason of physical disability
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 November 2009
* Department of Veterans Affairs (VA) Rating Decision, dated 17 December 2010, with attachments
* DA Form 199 (PEB Proceedings), dated 27 December 2010
* DA Form 5892 (Physical Evaluation Board Liaison Officer (PEBLO) Estimated Disability Compensation Worksheet)
* letter from the U.S. Army Physical Disability Agency, dated 10 January 2011
* Orders D-010-16, dated 10 January 2011, placing him on the Retired List
* numerous Standard Forms 600 (Chronological Record of Medical Care)

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in the Air Force and the Army National Guard (ARNG), the applicant was appointed as a Reserve commissioned officer in the U.S. Army Reserve (USAR), Army Nurse Corps, in the rank of second lieutenant on 3 July 2002.

2.  Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston, TX, issued temporary change of station Orders 340-1110, dated 6 December 2006, reassigning him from Detachment 13, 1984th USAR Hospital, Honolulu, Hawaii, to the 2nd Brigade, 75th Division, Fort Sam Houston, for medical processing prior to movement to the U.S. Central Command area of responsibility or release from active duty in support of Operation Enduring Freedom for a period not to exceed 365 days with a reporting date of 12 November 2006 [sic].  These orders were later amended by Orders 303-1106, dated 30 October 2007, to show the period not to exceed 730 days with a proceed date of 12 November 2007.

3.  U.S. Army Human Resources Command, St. Louis (HRC-STL), MO, issued Orders A-11-823251, dated 17 November 2008, ordering him to report to Fort Gillem, GA, for CO-ADOS in support of OEF for a period of 365 days effective 8 November 2008.

4.  Headquarters, U.S. Army Garrison, Fort Sam Houston, issued temporary change of station Orders 354-1101, dated 19 December 2008, reassigning him to Headquarters and Headquarters Company, 181st Infantry Brigade, Fort McCoy, WI, for deployment in support of OEF.  He was ordered to proceed on 30 November 2008 for a period not to exceed 343 days.

5.  In a letter, dated 16 July 2009, a Doctor of Otolaryngology (the branch of medicine and surgery that specializes in the diagnosis and treatment of ear, nose, throat, and head and neck disorders), Department of Family Medicine, Franciscan Skemp Healthcare, described the applicant as a 43-year-old gentleman with multiple issues including migraine cephaligia, obstructive sleep apnea, intermittent tendinitis in the right elbow, chronic low back pain with right radicular symptoms secondary to degenerative joint diseases in the lumbar spine, and bilateral knee pain secondary to chronic overuse syndrome.  The physician stated the applicant had undergone multiple conservative treatments of his various musculoskeletal complaints including anti-inflammatories, strengthening, stretching, and physical therapy programs.  The physician also stated that given the arthritic nature of these medical conditions, they would worsen over time and he would need to limit his activities.

6.  In a memorandum, dated 31 August 2009, the Commander, 181st Infantry Brigade, 1st Army Division West, Task Force Medical Trainers, Fort McCoy, informed the Commander, Ireland Community Hospital, Fort Knox, KY, that:

	a.  the applicant was evaluated by the Fort McCoy medical team and subsequently by a local outsourced health care provider providing a specialized medical evaluation of his conditions;

	b.  the applicant has chronic lower back pain with right radicular symptoms secondary to degenerative joint disease in the lumbar spine, migraine cephalgia, obstructive sleep apnea, and bilateral knee pain secondary to chronic overuse syndrome;

	c.  the applicant has performed his duties as lead instructor, safety officer, and support staff for the medical training battalion with limited success due to his medical condition.  He attempted to accomplish all missions; however, there were many occasions when his medical conditions precluded his participation; and

	d.  the applicant was a Soldier with numerous medical conditions, and based on his history, he was not able to continue performance of his duties for extended periods of time.

7.  Additionally, the commander recommended favorable consideration be given as part of the medical review process (MRP) to further evaluate the applicant's conditions to determine his capability for military retention.  He stated if medical conditions warrant a medical retirement, appropriate action should be taken.  Otherwise, he recommended that the applicant be considered for a continental United States position not requiring the use of load-bearing equipment, “Caviler,” prolonged standing, moderate lifting, or prolonged walking.  It was his medical opinion that the applicant was not a deployable asset in his current condition to support his area of concentration (AOC) of 66H (Medical Surgical Nurse) and reclassification should be considered if allowed to continue his military career.

8.  Headquarters, U.S. Army Garrison, Fort McCoy, Orders 301-1005, dated 28 October 2009, released him from active duty not by reason of physical disability and reassigned him to Detachment 13, 1984th USAR Hospital, Honolulu, effective 7 November 2009.

9.  He was issued a DD Form 214 for the period ending 7 November 2009 which shows:

* he completed 2 years, 11 months, and 29 days of active service
* he was ordered to active duty in support of OEF from 9 November 2006 to 7 November 2008
* he was ordered to active duty for CO-ADOS in support of OEF from 8 November 2008 to 7 November 2009

10.  His DA Forms 67-9 (Officer Evaluation Reports (OER)) rendered for the period 9 November 2007 through 29 October 2009 show he passed his Army Physical Fitness Test (APFT), successfully performed his duties, and was determined to be fully qualified for promotion to the next higher grade.

11.  Headquarters, 9th Mission Support Command, Honolulu, issued 
Orders 09-343-00008, dated 9 December 2009, releasing him from his current assignment and reassigning him to the 228th Combat Support Hospital, Fort Sam Houston, effective 1 January 2010.

12.  His service record does not contain orders which show he was ordered to active duty or that he submitted a request for extension on active duty for physical disability processing.

13.  On 17 May 2010, an MEB was convened to evaluate the applicant for low back pain with lumbar disc disease and mild right radicular symptoms, left knee patellar tendonitis and meniscal tear, and migraine headaches.  His conditions determined medically acceptable were sleep apnea, lateral epicondylitis (right), hearing loss, osteoarthritis, left great toe hallus limitus, hypothyroidism, allergic rhinitis, arthralgia of the tempor ormandibular joint with left side of mouth numbness, and attention-deficit hyperactivity disorder (ADHD).  The MEB recommended the applicant's referral to a PEB.  On 20 May 2010, he agreed with the MEB's findings and recommendation.

14.  On 17 December 2010, the VA granted him service connection for the following conditions:
* migraine headaches (50 percent)
* sleep apnea (50 percent)
* adjustment disorder with mixed anxiety and depressed mood (also diagnosed as post-traumatic stress disorder)
* lumbar spine degenerative disc disease (10 percent)
* right S1 radiculopathy (also claimed as lumbar radiculopathy and McKenzie anterior-lateral derangement syndrome) (10 percent)
* right (dominant) elbow lateral epicondylitis (10 percent)
* trochanteric bursitis, right hip (10 percent)
* hypothyroidism (10 percent)
* allergic rhinitis (0 percent)
* osteoarthritis left foot first metatarsal phalangeal joint (also claimed as hallux limitus) (0 percent)
* arthralgia of right temporomandibular joint (0 percent)
* peripheral sensory neuropathy, trigeminal cranial nerve V (claimed as numbness left side of mouth) (0 percent)
* bilateral hearing loss (0 percent)

15.  On 27 December 2010, a formal PEB found the applicant unfit for military service due to migraine headaches since 1989 and lumbar degenerative disc disease since 2007 when he was doing calisthenics.

	a.  His condition of migraine headaches was unfitting due to occasional incapacitating headaches which compelled the applicant to leave work, take medication, and lie down in the dark.  This condition was incompatible with the reliable performance of his 66H AOC.  The applicant testified that these headaches began in January 1989 while he was an enlisted airman.  However, he testified he didn't seek medical attention for this and there was no line-of-duty determination for this condition during his subsequent USAR and ARNG service.

	b.  His condition of lumbar degenerative disc disease was unfitting due to the applicant's inability to lift over 20 pounds which was required by his 66H AOC.

16.  The PEB also referred to the applicant's not unfitting medical conditions as listed in the narrative summary of the MEB, diagnoses 4 through 11.

17.  His MEB diagnosis 12, ADHD, was a condition not constituting a physical disability.  The formal findings were reconsidered based on the VA Rating Decision, dated 17 December 2010.

18.  The PEB recommended the applicant's medical retirement with a 60-percent disability rating.  The applicant concurred with the PEB findings.  He didn't request reconsideration of his VA ratings.
19.  On 10 January 2011, the Chief, Operations Division, U.S. Army Physical Disability Agency, Washington, DC, informed the applicant he had been found to have a disability and would be permanently retired with a disability rating of 60 percent.  He provided a copy of his DA Form 5892 which shows an estimate of his disability compensation.

20.  Orders D 010-16, dated 10 January 2011, released him from assignment and duty because of physical disability and he was placed on the Retired List on 14 February 2011 in the rank of captain/O-3.  These orders show he had 8 years, 9 months, and 9 days for disability retirement and 20 years, 2 months, and 12 days creditable service for basic pay.

21.  His ARPC Form 249-E (Chronological Statement of Retirement Points), dated 11 October 2011, shows he was credited with158 active duty points for retirement year 3 July 2009 through 2 July 2010 and 9 active duty points for retirement year 3 July 2010 through 14 February 2011.

22.  He provides an excerpt from the Department of the Army WTU Consolidated Guidance, dated 18 July 2008, which states:

For Soldiers being separated due to a Physical Disability Evaluation System (PDES) finding who need to have their MRP/MRP2/active duty medical extension (ADME) order extended to finish PDES processing before separation, only a Transition Point Processing System Report, Physical Disability Information Report or the separation order need be sent to HRC to execute the MRP/MRP2/ADME order extension.  The order extension will not exceed the separation date established by the Physical Disability Agency.  Only the Physical Disability Agency is authorized to change the established separation date.

23.  He provided numerous Standard Forms 600 showing medical treatment he received during the period August 2007 through April 2009.

24.  The Department of the Army WTU Consolidated Administrative Guidance prescribes and updates policies and guidance for the care and management of warriors in transition (WT's).  It states:

	a.  MRP is designed to compassionately evaluate and treat the Reserve Component (RC) WT's with an "in the line-of-duty" incurred illness, injury, disease, or an aggravated pre-existing medical condition which prevent them from performing the duties required by their specialty and/or position, and to as soon as possible return Soldiers back to duty within their respective RC.  If a return to duty is not possible, the WT will be processed through the Army PDES.  This program applies to outpatient and in-patient WT's currently on active duty mobilized under Title 10, U.S. Code, section 12302, partial mobilization orders for operations in support of the Global War on Terror (GWOT).  Soldiers on active duty in support of the GWOT under another authority will be handled on a case-by-case basis.  RC Soldiers mobilized in support of GWOT are authorized continuing care in an active duty status.

	b.  Once a medical authority determines that the Soldier will not be able to perform military duties in that status, or that the Soldier will not have a sufficient number of days left on active duty after the medical condition improves to permit a return to duty (RTD), the RC WT may be eligible for MRP.  When a Soldier is not expected to RTD within 60 days from the time of injury or illness – or if the Soldier could RTD within 60 days, but will have fewer than 120 days left on his/her current mobilization orders – he/she may also be eligible for MRP.  The decision for WT assignment will be made by the triad (Nurse Case Manager, Primary Care Manager, and Squad Leader) in conjunction with the Soldier and orders will be produced by HRC-STL.

	c.  Soldiers on active duty orders not in support of GWOT might be eligible for ADME.  An MRB must determine that the Soldier is eligible for MRP2.  RC Soldiers mobilized in support of GWOT are authorized continuing medical care while in an active duty status.

	d.  The ADME Program is designed to voluntarily place RC Soldiers on temporary active duty in order to evaluate or treat their service-connected medical conditions or injuries so that they may RTD within his or her respective RC as soon as possible.

25.  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 when the unfitness is of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was ordered to active duty in support of OEF from 9 November 2006 to 7 November 2008 and for CO-ADOS in support of OEF 8 November 2008 to 7 November 2009.

2.  His OER's for this period show he passed the APFT, successfully performed his duties, and was determined to be fully qualified for promotion.  Therefore, there appears to have been no valid medical reason to have extended him on active duty for physical disability evaluation processing.

3.  The applicant was evaluated by an MEB in May 2010.  His service record is void of evidence which indicates he was extended on active duty for physical disability processing.

4.  The applicant's service record does not contain orders which verify he was mobilized to active duty in support of the GWOT after November 2009 until he retired on 14 February 2011.

5.  A formal PEB found him physically unfit for continued military service as a result of his migraine headaches and lumbar degenerative disc disease and assigned a 60-percent disability rating.  As a result, he was medically retired from active duty and placed on the Retired List on 14 February 2011.

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 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)                                         AR20110002892



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ABCMR Record of Proceedings (cont)                                         AR20110002892



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