IN THE CASE OF:	  

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110005034 


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 that her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show her injuries that occurred while on active duty and to show her entire period of service in the Florida Army National Guard (FLARNG) as active duty.

2.  The applicant states she was injured while on active duty and should have been retained on active duty to be medically evaluated and discharged.  Her DD Form 214 does not show her injury and this has prevented her from receiving full Department of Veterans Affairs (VA) benefits.

3.  The applicant provides copies of her active duty orders, two pages of medical treatment records, a Magnetic Resonance Imaging (MRI) report, two DD Forms 3349 (Physical Profile), a line of duty questionnaire and determination, DD Form 214, a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), and a National Guard Bureau (NGB) Form 22. 

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 enlisted in the FLARNG on 20 April 2005 and was ordered to initial active duty for training (IADT) on 31 May 2005.  

3.  The 25 November 2005 medical record provided by the applicant has no patient identification information.  It does show that a 40 year old white female was seen for lower back pain and numbness.  The impression was pressure neuropathy from wearing a pistol belt.  A two-week limited profile was given.

4.  A 25 November 2005 physical profile sheet contains no patient identification information, and has pen and ink changes that significantly alter why the profile was granted as well as what limitations were in effect.

5.  The available medical records show that on 28 November 2005 she was treated for a back problem and scheduled for an MRI.  The MRI performed on 
1 December 2005 gives the reason for the MRI as a complaint of parathesis across the lower back and hips.  The MRI found that the applicant was suffering from damaged disks at L4-L5 and L5-C1 with radiculapathy [a problem in which one or more nerves are affected and do not work properly at or near the root of the nerve, along the spine with pain or other symptoms manifesting in an extremity through a process called referred pain].

6.  The 8 December 2005 profile sheet shows the applicant received a temporary L-3 profile (good through 9 March 2006) for her back condition with significant limitations noted.  

7.  The applicant completed her military occupational specialty (MOS) training and was awarded MOS 91W (Health Care Specialist).  With her completion of IADT she was released from active duty and returned to her unit on 9 December 2005.  Her DD Form 214 shows the separation authority as based on self-terminating orders with a narrative reason as completion of period of active duty training (ADT).

8.  A line of duty determination was completed on 13 December 2005 with a finding that the applicant's low back pain and numbness were incurred in the line of duty.  It noted the applicant was treated with a profile for two weeks and released without further limitations. 

9.  On 24 April 2008, a physical evaluation board (PEB) convened and determined the applicant was physically unfit for retention due to her back condition and recommended that she be discharged with severance pay, rated 10 percent disabling.  

10.  The applicant was discharged from the FLARNG effective 2 June 2008 as medically unfit for retention with entitlement to disability severance pay.  Her NGB Form 22 shows this fact in the narrative reason for separation.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 and states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states she was injured while on active duty and should have been retained on active duty to be medically evaluated and discharged.  Her DD Form 214 does not show her injury and this has prevented her from receiving full VA benefits.

2.  While the applicant apparently did injure her back during IADT, she is not shown to have been unable to complete her MOS training.  With the completion of her training she was released from active duty and transferred back to her National Guard unit.  There is no provision for retention on active duty for personnel just because a Soldier is on a profile.  

3.  The applicant served in the FLARNG for an additional two and a half years before being found to be medically unfit for retention and discharged with disability severance pay.  

4.  Therefore, the applicant's administrative separation from active duty was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  There is no provision for showing any indication that a Soldier sustained an injury while on active duty on the DD Form 214.  The closest entry would be in the narrative reason for separation if the Soldier were either discharged or retired 

due to a physical disability.  The applicant was not released from active duty as a result of a physical disability.  She was discharged from the FLARNG as a result of no meeting medical retention standards and this is noted on her NGB Form 22. 

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)                                         AR20110005034





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ABCMR Record of Proceedings (cont)                                         AR20110005034



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