BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110009198 


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 records to show:

* He was released from duty because of physical disability incurred as a result of injury while entitled to receive basic pay
* Placement on the temporary disability retired list (TDRL), or permanently retired, or entitled to severance pay
* Entitlement to incapacitation pay

2.  The applicant states he was wrongly discharged from the Puerto Rico Army National Guard (PRARNG) due to medical disqualification instead of being referred for a final disposition through the medical evaluation board (MEB) and physical evaluation board (PEB) as required by Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The personnel involved in this process conducted all personnel actions using arbitrary decisions which prevented him from receiving a line of duty for the reason of separation due to the fact that he was on orders when the injury that ultimately led to his medical unfitness occurred.  He was also prevented from attending drills from February 1999 to March 2001 due to his medical condition.  As required by Army Regulation 135-178 (Enlisted Administrative Separations), he should have been entitled to incapacitation pay.  He currently receives 30% service-connected disability compensation from the Department of Veterans Affairs.

3.  The applicant provides:

* 2001 Orders 185-9 (discharge from the PRARNG)
* Three DA Forms 3349 (Physical Profile)
* ARNG Retirement Points History Statement
* 2001 National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) (Army National Guard))
* 1998 NGB Form 22 (Air National Guard)
* 1997 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-authored statements
* DD Form 368 (Request for Conditional Release)
* 1994 through 1996 multiple orders to active duty
* Various medical documents, charts, reports, records of medical care, and other medically-related documents
* Civilian and/or military radiology reports and medical statements

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 records, including his personnel and medical records are not available for review with this case.  An exhaustive search was undertaken to locate his complete military records.  Unfortunately, they could not be found.  However, the applicant submitted sufficient documents for the Board to conduct a fair and impartial review of this case.

3.  The applicant's available records show he was born on 30 October 1963 and initially enlisted in the PRARNG on 22 October 1984.  He held military occupational specialty 94B (Food Service Specialist) and appears to have served in a traditional ARNG unit until 14 April 1988 when he was transferred to the U.S. Army Reserve Control Group (Reinforcement). 

4.  He again enlisted in the PRARNG on 30 January 1991.  He then entered active duty for special work on 1 March 1995 and served with the 1st Battalion, 29th Infantry, PRARNG.  He was released from active duty on 30 January 1997.
5.  He served in the Puerto Rico Air National Guard from 1 November 1997 through 25 August 1998.

6.  He again enlisted in the PRARNG on 26 August 1998 and he was assigned to the 480th Military Police Battalion, PRARNG.  

7.  On 27 September 2001, the PRARNG published Orders 185-9 ordering his honorable discharge from the ARNG, effective 25 August 2001.  The authority for his discharge is shown as paragraph 8-26j(1) of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), medically unfit for retention. 

8.  He was discharged from the PRARNG on 25 August 2001 in accordance with paragraph 8-26j(1) of NGR 600-200 by reason of medical unfitness.  His NGB Form 22 shows he completed 15 years, 7 months, and 1 day of total service for pay.  His ARNG Retirement Points History Statement shows he completed 11 qualifying years toward non-regular retirement.

9.  The facts and circumstances of the applicant's injury or illness are not available for review with this case.  There is no indication in the applicant's records of what occurred.  There is no indication in the applicant's records that he was issued a permanent physical profile or that he underwent an MOS Medical Retention Board (MMRB) or he was referred for entry into the PDES.  His service records are void of any medical documents or correspondence related to what his disposition was.  However, he provides the following documents:

	a.  Statement, dated 14 October 1998, which shows a total of five views of the left shoulder were submitted.  The bony structure shows satisfactory mineralization.  There was an impression of mild acromioclavicular joint arthritis. 

	b.  Radiology report, dated 27 March 1996, that shows an impression of "suspicious for a tear of the rotator cuff tendon near the attachment to the greater tuberosity.  Attention is needed."

	c.  Radiology report, dated 24 August 2000, that shows no significant degenerative changes, mild sclerotic disease at both greater tuberosities and bone island at proximal left humerus.   

	d.  Examination, dated 18 April 2001, which shows increased signal and irregularity in the supraspinatus tendon; tendonitis; partial tear in the tendon. 

	e.  Radiology report, dated 24 November 2003, that shows normal study.

	f.  Radiology report, dated 8 February 2005, that shows straightness of the lordosis suggestive of spasm, mild degenerative osteoarthritis changes, posterior spur and central disc protrusion at C3-C4 without significant spinal canal stenosis or neural foraminal stenosis, and mild spur and central disc protrusion at C3-C4 without significant canal stenosis or neural foraminal stenosis, and mild disc bulge at C4-C5.

	g  Radiology report, dated 12 January 2005, that shows increased signal intensity, small amount of fluid in the subacromial, and calcifications. 

	h.  Three DA Forms 3349, temporary physical profiles, issued in March 2000 (left shoulder pain), September 2000 (left shoulder pain), and August 2001 (unclear). 

10.  An advisory opinion was obtained from the NGB on 27 August 2009.  An NGB official recommended the applicant's request be returned without action.  He added that upon reporting to his unit on 25 November 1998, the applicant notified his chain of command of his impending surgery on his left shoulder.  There was no official line of duty in his records nor did he provide any.  He was advised in February 1999 not to report to any more drills until the outcome of a medical board is obtained.  He was ultimately found medically unfit for retention and he was discharged at the end of his enlistment.  It is unclear when and how his injury occurred.  There was no record of a medical board or medical assessment of such injury.  The advisory opinion also noted that it is a Soldier’s responsibility for initiating an incapacitation pay claim.

11.  The applicant submitted a rebuttal disagreeing with the NGB's opinion.  He stated:

* His shoulder injury occurred while on active duty and he underwent an MRI (magnetic resonance imaging) in March 1997 wherein the doctors noted his rotator cuff problems
* Although there was no line of duty completed, the treatment and the diagnosis should have been sufficient to refer him to the PDES
* His chain of command failed to complete the line of duty
* He agrees with the advisory opinion that it was his responsibility to take appropriate action with regard to the incapacitation pay

12.  On 20 August 2009, by email, an official at the PRARNG Health Services stated:

	a.  The applicant's right shoulder rotator cuff injury occurred while on active duty Title 32, supporting State counter-drug operations.  Medical documents showed he sustained a shoulder injury during physical training.  He underwent an MRI on 27 March 1996 and the doctor suspected a finding of tear of the rotator cuff.

	b.  It appears his injury occurred while on active duty.  The fact that no line of duty was conducted does not change the fact that his injury should have been presumed in line of duty and he should have been referred to the disability evaluation system.  The official further opined that the PRARNG failed to ensure a line of duty was completed.

	c.  With regard to the incapacitation pay, since he was told not to undergo drills as a result of his presumably in line of duty condition, he should be entitled to incapacitation pay.  Nevertheless, it was his responsibility to notify his chain of command and submit the claim.  

	d.  In summary, the official stated that based on his experience, the applicant's case does not appear to have been handled properly.  He should have been referred to an MEB based on the fact that his injury occurred while on active duty.

13.  On 13 April 2011, another official at the PRARNG, Joint Force Headquarters, stated that after reviewing and conducting a detailed research of the applicant's case, his office recommends approval of the applicant's request.  The official opined that the request should be adjudicated by the proper authority (ABCMR), not the NGB or the PRARNG.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities.  

16.   Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities.  Paragraph 9-12 states that Reserve Component Soldiers with medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

18.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, among other things, a medical separation.  He contends that he was wrongly discharged without benefits from the PRARNG because of a medical condition that was incurred in line of duty.  He contends that now, 10 years after his discharge, he has received a 30% disability rating from the VA and that the VA determined that his disqualifying condition was in line of duty.

2.  In reality, the VA does not make line of duty determinations and the applicant does not submit a line of duty statement for any medical condition.  He submits selected documents intended to support his contention that the disqualifying condition was incurred while entitled to basic pay.  

3.  The purpose of the PDES is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.

4.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.  Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation, beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.

5.  In this case, the evidence he submits shows he was seen in 1996 for several complaints, including left shoulder pain.  The pain was attributed to doing push-ups.  In March 1996, an MRI was ordered and was suspicious of a rotator cuff tear.  He was referred to an orthopedic.  On 18 November 1998, he underwent arthroscopic surgery of his left shoulder for impingement syndrome.  A lesion was found and repaired.  There was no finding of a rotator (tendon) cuff tear.

6.  Although his record is incomplete, the medical documents he submitted show he underwent a second shoulder operation in 2001.  There are no clinical notes or surgical findings available but a pathology report suggests there was a rotator cuff tear.  

7.  The findings of the State medical review board are not available for review.  It is unclear what the applicant's disqualifying condition was.  He places a lot of weight on a statement by a doctor in 1996 (in an orthopedic referral) that he sustained an injury to the left shoulder during physical fitness.  This suggests that he had a prior history of shoulder problems.  But regardless of the shoulder problem in 1996, the surgery in 1998 did not reveal a rotator cuff tear.  He had an impingement syndrome and a lesion tear that was repaired.  The rotator cuff surgery performed in May 2001 cannot be linked to the prior shoulder problems.  

8.  The applicant has not shown that he was medically disqualified for a condition that was sustained while entitled to basic pay.  It is not reasonable to conclude that he sustained any significant injury doing push-ups and it was clearly shown that he did not tear his rotator cuff doing push-ups.  His presumed disqualifying condition was a rotator cuff tear.  The timing and circumstances of this injury are unknown.  It cannot be ascertained that he had any disqualifying condition was incurred while entitled to basic pay. 

9.  With respect to the incapacitation pay, there is no evidence in his records and he did not provide any to support his entitlement to such pay.  The applicant acknowledges in his response to the advisory opinion that it was his responsibility to notify his chain of command and submit the claim officially in order to promptly process incapacitation pay.  He has neither done so nor has he provided any documentation to support his entitlement to such pay.

10.  It has now been over 10 years since the applicant was separated.  An arbitrary ruling in his favor, without knowing what his records would have shown, would cause prejudice to the Government.  The doctrine of laches is invoked in his case.
11.  In view of the foregoing, there is insufficient evidence to grant him the requested relief.

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)                                         AR20110009198



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ABCMR Record of Proceedings (cont)                                         AR20110009198



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