IN THE CASE OF:	  

		BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110009609 


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, the opportunity to be processed under the Physical Disability Evaluation System (PDES) and be retired by reason of physical disability.

2.  The applicant states he was erroneously discharged from the Puerto Rico Army National Guard (PRARNG) and transferred to the Retired Reserve after being determined unfit for retention by a Fit-for-Duty Determination Board (FFDDB).  He states he was injured while on active duty in support of the Guardian Mariner Program and his unit failed to complete a line-of-duty (LOD) determination.  Additionally, he was never afforded the opportunity to appear before a medical evaluation board (MEB) or a physical evaluation board (PEB).

3.  The applicant provides copies of:

* orders transferring him to the Retired Reserve
* his FFDDB acknowledgement statement
* his post-deployment health assessment
* medical treatment records
* orders to active duty
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his Retirement Points Statement
* a memorandum from the Puerto Rico Army National Guard (PRARNG)



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 was born on 24 June 1969 and enlisted in the PRARNG on 28 September 1978 for a period of 6 years.  He completed his training and remained in the PRARNG through a series of continuous reenlistments.  He was promoted to the rank of sergeant on 1 June 1984 and he was issued his 20-year letter in 1998.

3.  On 14 February 2003, he was ordered to active duty in support of Operation Noble Eagle.  He was deployed to Kuwait and on 26 April 2003 he stepped on a rock and twisted his left knee while carrying water at Camp Patriot, Kuwait.

4.  The applicant was treated at the aid station and an x-ray was ordered.  The radiologic examination report indicates the applicant was a 42-year old male with a 14-year history of left knee pain and previous knee surgery.  The applicant received an x-ray which showed no focal radiographic abnormalities detected in the left knee.  The applicant also received a magnetic resonance imaging at Fort Bragg, North Carolina, on 5 June 2003 which gave the impression of a small knee effusion and likely oblique tear in the posteromedial corner of the medial meniscus with the appearance of an avulsion injury.

5.  On 14 January 2004, he was honorably released from active duty due to completion of required service.  He had served 11 months and 1 day of active service during his deployment and he was returned to his PRARNG unit.

6.  The applicant's FFDDB proceedings are not present in the available records; however, the applicant has provided the acknowledgement statement that he signed after completion of the FFDDB which notified him that he was being discharged effective 11 April 2005.

7.  On 11 April 2005, the applicant was discharged from the PRARNG and transferred to the Retired Reserve.

8.  On 20 April 2011, the PRARNG G-1 issued a memorandum to the applicant indicating the evidence showed he received complex medical treatment while on active duty for the condition in which he was declared unfit.  However, his chain of command and the PRARNG failed to seek final approval of an informal LOD investigation and there was no evidence to show he was properly counseled regarding his rights under the PDES.  He advised the applicant to apply to this Board for relief.

9.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau (NGB).  The advisory official opines that the PRARNG should submit the applicant's LOD investigation to NGB for completion, the Office of the Surgeon General should contact the applicant and arrange for the applicant to be evaluated under the PDES, and action should be taken based on the findings of the PDES.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit a comment or a rebuttal.  He did not respond.

10.  National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), provides that commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination.  Commanders who do not recommend retention will request the Soldier's discharge.

11.  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 office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTF's) who are treating Soldiers may initiate action to evaluate the Soldier's physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.

12.  Army Regulation 635-40 states that MEB's are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the evidence of record does not contain sufficient evidence to show the applicant was denied due process, was not afforded his rights, or was not properly counseled at the time.  Therefore, it must be presumed in the absence of evidence to the contrary that the applicant's administrative discharge was accomplished in accordance with the applicable regulations with no violations of any of the applicant's rights.

2.  The applicant's records show he stepped on a rock and twisted his left knee while carrying water at Camp Patriot, Kuwait, on 26 April 2003.  He was treated at the aid station and an x-ray was ordered.  The radiologic examination report indicates the applicant was a 42-year old male with a 14-year history of left knee pain and previous knee surgery.  He was honorably released from active duty due to completion of required service on 14 January 2004, 8 months and 20 days after he injured his knee.  As such, the evidence indicates he was able to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

3.  It must also be presumed in the absence of evidence to the contrary, that at the time the applicant underwent his FFDDB, medical personnel properly determined that his medical condition did not warrant consideration under the PDES and/or referral to an MEB/PEB.  Accordingly, it appears the applicant was properly discharged under administrative procedures in accordance with the applicable regulations.

4.  In the absence of sufficient credible evidence to show his condition warranted referral through the PDES at the time of his discharge, there appears to be no basis to grant his request for review under the PDES 6 years after the fact.

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)                                         AR20110009609



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ABCMR Record of Proceedings (cont)                                         AR20110009609



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