IN THE CASE OF:	  

		BOARD DATE:  12 January 2012

		DOCKET NUMBER:  AR20110004434 


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 discharge from the Puerto Rico Army National Guard (PRARNG) be voided so he can be processed through the Physical Disability Evaluation System (PDES).

2.  The applicant states his discharge from the Army National Guard was erroneous because regulatory procedures were not followed.  He was given a permanent physical profile by way of a Fit-for-Duty Determination Board (FFDDB) but he was not afforded an opportunity to elect referral to the PDES for a proper medical determination of his condition to establish the proper disposition and his disability benefits.  He further states the condition for which he was declared unfit for retention was acquired while serving on active duty since he was treated and diagnosed with post-traumatic stress disorder (PTSD).

3.  The applicant provides copies of:

* two Line of Duty (LOD) determinations
* Purple Heart orders and award certificate
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 April 2004
* a December 2005 medical record
* an April 2006 medical record
* a DD Form 3349 (Physical Profile), dated 30 April 2006
* his discharge orders and amendment
* 
a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 14 January 2008
* an email from the Chief, Health Service Support Branch, dated 27 June 2011
* a PRARNG memorandum, dated 2 March 2011

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's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs (VA) or in the possession of the PRARNG and are not available for review.

3.  The applicant's NGB Form 22 shows he served in the PRARNG from 6 June 2001 through 14 January 2008.  On 18 January 2003, he was ordered to active duty in support of Operation Enduring/Iraqi Freedom.  He served in Jordan and Iraq from 10 March 2003 through 4 March 2004.

4.  The applicant was awarded the Purple Heart for wounds received as a result of enemy or hostile action on 31 October 2003.

5.  The applicant was honorably released from active duty on 18 April 2004 at the completion of required active service.

6.  A 12 December 2005 medical record completed by a VA physician shows the applicant was evaluated to determine if he should return to active service due to psychiatric problems.  The diagnosis was shown as PTSD.  It was recommended the applicant not handle firearms and that he not return to active service as it would be detrimental to his psychological wellbeing.


7.  A 30 April 2006 medical record shows the applicant has disability evaluations for PTSD at 30 percent (%) and for a scar and right ear condition at 20% (presumably from the VA).  He was also placed on a permanent profile for these conditions on the same date.

8.  On 14 January 2008, the applicant was honorably discharged from the ARNG and as a Reserve of the Army under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), by reason of medical unfitness for retention.

9.  A 2 March 2011 PRARNG advisory memorandum advised the applicant that the PRARNG agreed he had been erroneously separated and recommended approval of his request; however, they had been advised not to make a final determination on his case.  Further, since he was no longer a member of the PRARNG they did not have the authority to reinstate him to afford him proper consideration of his medical conditions.

10.  In the processing of this case, on 23 August 2011, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The advisory official opined that the applicant had not been afforded his due process.  He recommended the applicant's record be sent to a Medical Evaluation Board (MEB) for disability processing and then referred to a Physical Evaluation Board (PEB) to determine suitability for a medical discharge.

11.  On 30 August 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the medical treatment facility commander will provide a thorough and prompt evaluation when a Soldier’s medical condition becomes questionable in respect to physical ability to perform his/her assigned duties; will appoint a PEB liaison officer to counsel Soldiers undergoing physical disability processing; and will ensure MEB proceedings referred to a PEB are complete, accurate, and fully documented.

13.  Army Regulation 40-501 (Standards of Medical Fitness) provides that Soldiers with medical conditions who do not meet the required standards will be evaluated by an MEB and PEB, as appropriate.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been sent to an MEB and/or a PEB prior to being discharged from the ARNG.

2.  The applicant appears to have been afforded a VA disability evaluation of 20% for a scar and wound to his ear and 30% for PTSD at some point after he was released from active duty but before he was found unfit for retention by the ARNG.  There is no evidence he was processed through the PDES.

3.  It is reasonable to believe the applicant's PTSD is related to his combat experiences.  Therefore, it is recommended that the applicant's discharge from the PRARNG be voided and he be reinstated in the PRARNG; afforded an MEB/PEB; and be shown to be entitled to 15 membership points and 35 inactive duty for training points annually from the date of his voided ARNG discharge through completion of the MEB/PEB processing.  

BOARD VOTE:

___X____  ___X ___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by recommending that:

	a.  the applicant's discharge from the PRARNG be voided and he be reinstated; 

	b.  he be afforded an MEB/PEB; and 



	c.  he be shown to be entitled to 15 membership points and 35 inactive duty for training points annually from the date of his voided ARNG discharge through completion of the MEB/PEB processing.  



      ___________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)                                         AR20110004434



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004434



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1