IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20110011635 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant:

* be reinstated on active duty, effective 9 April 2010
* receive payment of all back pay and allowances to which she is entitled
* be evaluated by a Military Treatment Facility (MTF) for the purpose of entry into the Army Physical Disability Evaluation System (PDES)
* receive a formal hearing addressing the actions of Lieutenant Colonel (LTC) W. R., who reprised against the applicant by terminating her active duty orders

2.  Counsel states:

* the applicant was unlawfully removed from active duty on 8 April 2010
* the Army failed to refer the applicant through the PDES
* the applicant experienced reprisal by her superior officer, LTC W. R.
* the applicant initiated two congressional inquiries and an Inspector General (IG) investigation, which have not resolved this matter


3.  Counsel provides:

* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the period ending 8 April 2010 and 29 September 2008
* DD Form 215 (Correction to DD Form 214), dated 26 April 2010
* Officer Record Brief (ORB), dated 10 July 2008
* DA Forms 67-9 (Officer Evaluation Report (OER)) during the period           2 November 2004 through 8 April 2010
* Orders A-05-913264, issued by the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL), dated 7 May 2009
* Numerous medical documents
* DD Form 2796 (Post-Deployment Health Assessment) 
* DD Form 2900 (Post-Deployment Health Re-Assessment) 
* Six DA Forms 3349 (Physical Profile)
* DD Form 689 (Individual Sick Slip)
* Memorandum from an orthopedic surgeon, dated 17 March 2010
* Memorandum from the Officer-in-Charge of Specialty Services, dated
17 March 2010,
* Victim Information Notification Everyday (VINE)
* Injunction Against Harassment
* Department of Veterans Affairs (VA) medical documents
* Extract from Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraphs 8-3 through 8-8
* Title 10, U.S. Code (USC), sections 1034 and 1035

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the U.S. Army Reserve (USAR) in the rank/grade of captain (CPT)/O-3.

2.  The applicant’s ORB shows her basic active service date as 24 April 2003.  She was commissioned out of Officer Candidate School and entered active duty as a commissioned officer in the Regular Army on 9 October 2003.  

3.  The applicant’s OER for the period ending 20 June 2005 evaluated her as a Platoon Leader and her 3 May 2006 OER evaluated her as a Company Executive Officer.  These reports show she passed her Army Physical Fitness Test (APFT), successfully performed her duties, and she was determined to be best qualified for promotion to the next higher grade.

4.  On 5 January 2007, she was given a permanent profile for patellar tendonitis (an injury that affects the tendon connecting the kneecap to the shinbone) with a physical profile serial of 112111.  Her DA Form 3349 indicated she was unable to do the 2-mile run event of the APFT; however, she could perform the alternate APFT activities of walking, swimming, or biking.  The profiling officer indicated the applicant could not perform activity requiring prolonged positioning on her knees.

5.  She was promoted to CPT on 20 January 2007.

6.  The applicant’s OER for the period ending 3 May 2007 evaluated her as an Assistant Secretary of the General Staff and her 3 May 2008 OER evaluated her as a Plans Officer.  These reports show she passed her APFT, successfully performed her duties, and she was determined to be best qualified for promotion to the next higher grade.

7.  Counsel provided numerous copies of the applicant’s Standard Form (SF) 600 (Chronological Record of Medical Care) that indicate:

	a.  she was evaluated for left ear and left knee pain on 15 August 2006.  She was assessed as having tendonitis patellar and otitis externa (an inflammation of the outer ear and ear canal).  A handwritten entry on this medical document indicates "main damage occurred Jun – Dec 2007 in Afghanistan."

	b.  she was evaluated for adverse reactions to medication on 23 October 2007.  She was assessed with allergic rhinitis (reaction that occurs in the eyes, nose, and throat).  The healthcare provider indicated follow-up treatment would be scheduled as needed.

	c.  she was evaluated for pains in her back on 5 February 2008.  The healthcare provider noted the applicant's history of condition was status post acute pain located between the shoulder blades and upper back three times a week.  The applicant reported she denied trauma or injuries, pain started after recent rest and relaxation, and pain was aggravated by prolonged sitting, typing, and trunk rotation.

	d.  On 5 February 2008, the healthcare provider also indicated the applicant had a history of low back pain and carpal tunnel syndrome, bilateral wrists.  The 
applicant reported she was in good health and her job involved administrative work.  The applicant was assessed with mid-back pain and the healthcare provider further indicated the applicant was an excellent candidate to start a rehabilitation program for the upper back to increase range of motion.  The healthcare provider indicated follow-up would be needed in the Occupational Therapy/Physical Therapy Clinic.

	e.  she was evaluated for nasal passage blockage on 5 February 2008.  She was assessed as having sinusitis and elevated blood pressure.  The healthcare provider stated a follow-up would be needed with her primary care physician.

8.  On 17 June 2008, the applicant completed a DD Form 2796 that indicates she was deployed to Afghanistan from 22 June 2007 through 5 June 2008.  She indicated she was seen three times by a healthcare provider during this deployment and she rated her health as:

* "Very Good" during the past month
* "About the same as before I deployed"
* "Not difficult at all" to do her work or other regular daily activities

9.  She also indicated on the DD Form 2796 that she had developed medical problems during deployment and she was on profile for her lower extremity.  The healthcare provider indicated minor concern regarding the applicant's physical symptom(s) and referred her to a primary care physician within 30 days with a follow-up for a 5-day back pain check.

10.  Counsel provided an SF 600, dated 29 August 2008, which indicated three views of the applicant's knees were assessed and they were both within normal limits.  One view of her chest was taken and there were no findings diagnostic of acute cardiopulmonary disease.  

11.  On 3 September 2008, she was evaluated for left knee pain.  On the SF 600, the healthcare provider noted the applicant reported she could not do the 2-mile ruck march or the 3-5 second rushes and she wanted to have the profile upgraded to a level 3.  The applicant also reported she had just completed a
12- month deployment 2 weeks prior and had no problems accomplishing her mission while deployed.  The healthcare provider assessed the applicant as having tendonitis patellar.

12.  She was released from active duty on 29 September 2008 at the completion of required active service and was transferred to the USAR Control Group (Individual Ready Reserve (IRR)).

13.  On 14 November 2008, she was evaluated at an Orthopedic Clinic for 
pre-operative orthopedic examination for knee joint pain.  X-rays of both knees were performed and there was no radiographic evidence of any osteoarticular abnormality.

14.  The applicant's Operative Report, dated 5 December 2008, indicated she underwent an OssaTron (high frequency ultrasound treatment) and she was diagnosed as having bilateral patella tendonitis.  This report indicated the applicant had more than 6 months of bilateral tendonitis and she had failed at least two consecutive treatments.

15.  On 14 January 2009, she was placed on a temporary profile for bilateral knee pain with a physical profile serial of 113111.  Her unsigned DA Form 3349, dated 14 January 2009, indicates she was unable to perform activities of the APFT or alternate APFT and she was unable to do the 3 to 5 second rushes under direct and direct fire.  The profiling officer indicated the applicant could run and walk at her own pace for a distance not to exceed 2 miles.  

16.  On 23 January 2009, she completed a DD Form 2900.  She indicated she had seen a healthcare provider for six or more times since she returned from deployment.  She rated her health as:

* "Good" during the past month
* "Somewhat worse now than before I deployed"
* "Somewhat difficult" to do her work or other regular daily activities

17.  On the DD Form 2900, dated 23 January 2009, she listed health concerns or conditions she felt were related to her deployment as:

* bad headaches
* generally feeling weak
* muscle aches
* swollen, stiff, or painful joints
* back pain
* watery, red eyes
* dizzy, light headed, passed out
* problems sleeping or still feeling tired after sleeping
* trouble concentrating, easily distracted
* increased irritability 
* skin diseases or rashes

The healthcare provider confirmed screening results as reported and indicated the applicant was already under care for physical symptoms.

18.  On 24 April 2009, she underwent a second OssaTron treatment and she was again diagnosed as having bilateral patella tendonitis.

19.  Orders A-05-913264, dated 7 May 2009, indicate she was ordered to operational active duty for operational support on 22 June 2009 for 101 days in accordance with Title 10, USC, section 12301(d).
20.  On 15 July 2009, she was placed on a temporary profile for back pain and knee pain with a physical profile serial of 113111.  The profiling officer indicated the applicant would be allowed to attend gym for physical therapy for rehabilitation purposes, advance physical activity as per physical therapy only with no impact activities.

21.  The applicant’s OER for the period ending 25 August 2009 evaluated her as a Pacific Command Desk Officer, Action Officer, and Cyber Operations Officer.  This evaluation report indicates she was given a physical profile, successfully performed her duties, and she was determined to be best qualified for promotion to the next higher grade.

22.  She underwent surgical procedures on 2 September 2009, that included fluroscopically (an instrument for visual observation of the form and motion of the deep structures of the body) guided, contrast enhanced bilateral L5 transforaminal epidural steroid (spinal injections given to patients with leg and/or back pain), and anesthetic injection with epidurogram (performed to assess the structure of the epidural space in the spine).

23.  On 11 December 2009, she was referred to the Orthopedics Spine Clinic at William Beaumont Army Medical Center, El Paso, TX for a second opinion for spondylolisthesis (a condition in which a bone in the lower part of the spine slips out of the proper position).  Her assessment revealed congenital spinal anomaly spondylolisthesis and congenital spinal anomaly lumbosacral spondylosysis.  The healthcare provider recommended the applicant proceed with surgery, which she elected to do at Fort Huachuca, AZ.  

24.  On 5 January 2010, she underwent surgical procedures.  Her Operative Report, dated 5 January 2010, from the Northwest Medical Center, Tucson, AZ, listed her diagnoses as isthmic spondylolisthesis, lumbar radiculopathy, and low back pain.

25.  On 17 March 2010, LTC R. W., Orthopedic Surgeon, U.S. Army Medical Activity, Fort Huachuca, AZ,submitted a memorandum through the Deputy Commander of Clinical Services to the Commander, requesting a medical disposition of the applicant.  LTC R. W. indicated the applicant's medical history was reviewed and she recommended the applicant undergo a medical evaluation and rehabilitation.  LTC R. W. indicated she anticipated the applicant's low back pain and her knees would not meet medical retention standards and a medical evaluation board (MRB) would be initiated as soon as maximum medical improvement had been reached.  LTC R. W. also recommended the applicant's activation be extended for 6 months to complete rehabilitation.

26.  On 17 March 2010, LTC R. W. submitted a second memorandum through the Deputy Commander to the Commander of Clinical Services.  She reiterated the statements of her preceding memorandum, except she indicated in paragraph 2 that the applicant informed her that her current command would not extend her contract beyond 8 April 2010.

27.  Her service record is void of orders that indicate her active duty was extended or that she submitted a request for extension on active duty for physical disability processing.

28.  She was honorably released from active duty on 8 April 2010 and she was transferred to a Reserve unit at Fort Huachuca.

29.  She received an OER for the period ending 8 April 2010 that rated her performance as a Battle Captain.  The rater assessed her as "Satisfactory Performance, Promote" with positive comments of "CPT L. has the potential to serve in the next grade.  Promote to Major when eligible."  The senior rater assessed her promotion potential to the next higher grade as "Fully Qualified" with positive comments and a recommendation for promotion to major with her peers.

30.  On 22 April 2010, she was placed on a temporary profile for back and knee pain with a physical profile serial of 114111.  This was an extension of a temporary profile first issued on 15 July 2009.  The profiling officer indicated the applicant would be allowed to attend gym for physical therapy for rehabilitation purposes and attend all scheduled physical therapy sessions with no formations and maximum 6-hour work day and sitting limit of 2 hours.

31.  Counsel provided an 8-page brief in which he gives a factual background of the applicant’s military service, conduct of the applicant's commanding officer at 
Fort Huachuca, applicant’s current medical status, applicable laws regarding medical processing, and errors and injustices in this case.  Counsel states:

	a.  the applicant served on active duty as a Signal Corps officer from 24 April 2003 to 30 (sic) September 2008 and she was reassigned to the IRR and recalled again to active duty on 22 June 2009.  She deployed to Afghanistan from 10 June 2007 to 10 June 2008.  Her duty performance was outstanding.

	b.  the applicant began experiencing knee pain in 2006 and pains in her arms and legs in 2007 while she was deployed to Afghanistan.  Her medical records noted the following:


		(1)  she experienced worsened back pain and related symptoms in 
February 2008.

		(2)  she was diagnosed with patellofemoral syndrome on 16 May 2008.

		(3)  she was diagnosed with patellar tendonitis and constant leg and arm shooting pains on 29 August 2008.  She was also diagnosed with sleep apnea and high blood pressure on this same date.

		(4)  she reported she was experiencing chronic back and knee pain on
3 September 2008 and she was placed on a P-2 profile for her knees.

		(5)  she underwent surgery on her knees on 5 December 2008 and again 
on 24 April 2009.

		(6)  she suffered from lumbar neuritis, spondylolisthesis, and lumbar 
spondylosis on 5 August 2009.

		(7)  she suffered migraine headaches and received epidural steroid injection treatments for her back pain during the period 18 to 30 September 2009.

		(8)  she was referred to Fort Bliss, TX for a second opinion on 
11 December 2009.

		(9)  she underwent surgery on her spine on 5 January 2010.

		(10)  she was placed on numerous physical profiles for her knees and back from 2006 through the date of her release from active duty.  Her last profile, dated 22 April 2010, was a T4.

	c.  LTC R. W. prepared a memorandum, dated 17 March 2010, for the Commander, U.S. Army Medical Activity, Fort Huachuca, recommending final medical disposition for the applicant and that the applicant’s orders be extended for 6 months to allow for completion of rehabilitation and final medical disposition.

	d.  the applicant was supervised by LTC W. R., Chief G-3, Current Operations from 26 September 2009 through 8 April 2010, at Fort Huachuca.  LTC W. R.'s conduct included the following actions:

		(1)  LTC W. R. engaged in a pattern of inappropriate behavior with the applicant and others, which led the applicant to complain to her chain of command, the IG, and members of Congress.
		(2)  LTC W. R.’s verbal abuse; inappropriate physical contact and violations of personal and physical space; false accusations of Uniform Code of Military Justice (UCMJ) violations (e.g., conduct unbecoming an officer); instructing the applicant that she must come to her before seeking IG assistance; instructing the applicant to report to her all of her out-processing activities; attempting to hug the applicant; and unsolicited personal visits to the applicant’s off-post residence and civilian neighbor.

		(3)  LTC W. R.’s refusal to extend the applicant’s active duty orders for medical evaluation and treatment was an act of reprisal for her protected communication.  LTC W. R. also gave the applicant a poor OER.

		(4)  LTC W. R. continued harassment of the applicant after she was released from active duty.  The applicant obtained a restraining order against LTC W. R. from a local civilian court system.

	e.  the applicant’s VA medical records revealed she continued to suffer incapacitating knee and back pain and other symptoms, such as radiculopathy.  She also suffers from migraine headaches, which began while she was on active duty.  She takes numerous medications.

	f.  Army Regulation 635-40, paragraph 8-6 (Medical processing) governs medical evaluation and disability processing for Reserve Component (RC) Soldiers and Title 10, USC, section 1034 authorizes the ABCMR to review Military Whistleblower Protection Act claims and conduct hearings into the matters raised in such claims.

	g.  the applicant unquestionably suffers from physical disabilities that prevent her from performing the duties of her grade and AOC.  She suffered from those conditions at the time of her improper release from active duty on 8 April 2010.

	h.  the termination of her orders resulted in serious hardship because of her loss of income and subsequent inability to find reasonable employment due to her physical limitations and need for ongoing treatment.

	i.  the applicant has not received the results of the IG, superiors within chain of command, or members of Congress investigations of her complaint against LTC W. R.

32.  On 1 February 2011, the applicant filed an injunction against LTC W. R. 
(i.e., defendant) at the Arizona Superior Court in Pima County, Tucson, AZ.  The court ordered the defendant to have no contact with the applicant except through attorneys, legal process, and court hearings.  The court further ordered the defendant not go to or near the applicant's or other protected person's residence.

33.  Counsel provided numerous VA medical documents indicating medical treatment the applicant received in 2010 and 2011.

34.  Counsel provided a declaration, dated 18 May 2011, from the applicant attesting to her current medications, physical conditions, and her experiences with LTC W. R.

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

	a.  Paragraph 2-2b provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

	b.  Paragraph 8-6 states that when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of their office, grade, rank, or rating because of physical disability, the 
commander will refer the Soldier for medical evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness).

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

	a.  Medical review process (MRP) is designed to compassionately evaluate and treat the RC WT's with an "in the line-of-duty" incurred illness, injury, disease, or an aggravated pre-existing medical condition that prevents 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, USC, 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 the 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 the GWOT might be eligible for active duty medical extension (ADME).  An MRB must determine that 
the Soldier is eligible for MRP2.  The MRP2 program is designed to voluntarily return Soldiers back to temporary active duty, to evaluate or treat RC WT with unresolved mobilization connected medical condition that either was not identified or did not reach optimal medical benefit prior to their release from active duty.  RC Soldiers mobilized in support of the 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 their respective RC as soon as possible.

37.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was on active duty as a Regular Army officer from 24 April 2003 through 29 September 2008 and was ordered to active duty as a USAR officer from 22 June 2009 through 8 April 2010.



2.  Her OERS for these periods show she either passed the APFT, or had valid temporary profiles while undergoing apparently successful treatment and rehabilitation.  Her OERs also showed she could perform her military duties.  Therefore, there appears to have been no valid medical reason to have extended her on active duty for physical disability evaluation processing.

3.  Counsel contends the applicant was unlawfully removed from active duty on 8 April 2010.  However, the applicant's service record is void of evidence which indicates she was erroneously removed from active duty on 8 April 2010.  She had been ordered to active duty effective 22 June 2009 for 101 days.  It appears she had received at least one extension, and she was released from active duty at the completion of required active service.

4.  The applicant’s medical documents indicate she was diagnosed with tendonitis patellar and otitis externa as early as August 2006 and she was placed on a permanent profile for this condition.  In addition, her medical documents indicate she had a history of low back pain and carpal tunnel syndrome, bilateral wrists.  She also had knee pain, isthmic spondylolisthesis, and lumbar radiculopathy.

5.  However, she was deployed to Afghanistan from 22 June 2007 through          5 June 2008, and during her deployment her knees were evaluated and they were both within normal limits.  Also, x-rays of her chest were taken and there were no findings of acute cardiopulmonary disease.

6.  She was ordered to active duty again on 22 June 2009 after having undergone two OssaTron treatments for bilateral patella tendonitis.  She was placed on a temporary profile for bilateral knee pain with a physical profile serial of 113111.  The applicant's civilian orthopedist indicated her post-operative recovery from back surgery was progressing well.  

7.  Tests conducted subsequent to her periods of active duty do not reflect her conditions required referral to an MEB.  The applicant performed her duties as shown on her evaluation reports.  Her conditions did not affect her performance of duty.

8.  The applicant's continued performance of duty raises a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury related to her service.  Therefore, the applicant's release from active duty on 8 April 2010 by reason of completion of her required period of active service 


was proper and correct.  The Army was not required by law or regulation to keep her on active duty for the purpose of recovering from her conditions or to refer her through the PDES.

9.  The memorandum, dated 17 March 2010, indicates a Medical Corps officer, who was not the applicant's treating physician, recommended the applicant be extended for 6 months to allow for completion of rehabilitation and final medical disposition.  However, this memorandum, in the absence of significant portions of the applicant's military treatment record and given her evaluation reports showed she could perform her duties, is unpersuasive.

10.  There is no corroborating evidence to support the applicant's contention that her commanding officer, LTC W. R., denied her an MEB and released her from active duty as punishment or retaliation for her protected communications to the IG.

11.  Counsel's request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

12.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's/counsel's 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)                                         AR20110011635



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ABCMR Record of Proceedings (cont)                                         AR20110011635



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