BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110011802 


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 as follows: 

* adjustment of his discharge orders from the Army National Guard (ARNG) to a later, unspecified date
* credit of service throughout 2004 to include back pay and allowances
* opportunity to be processed before a physical evaluation board for the purpose of establishing disposition and disability benefits

2.  The applicant states:

* his ARNG discharge orders were wrongfully and illegally backdated 
* the orders were issued 9 months after his 3 February 2004 discharge and 4 years and 3 months prior to the expiration of his enlistment commitment
* the ARNG did not afford him the opportunity to be considered by an ARNG medical evaluation board (MEB) or a physical evaluation board (PEB)
* he did not receive any service credit or pay for service performed in 2004
* the ARNG had no right to circumvent regulations or laws to back date his discharge while at the same time not affording him any rights 
* the ARNG had no right to receive Federal funding for service members and the deny those members benefits for the same period

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* California ARNG (ARNG) discharge orders
* Various emails, faxes, and printouts
* Line of Duty determination
* Letters to and from the CAARNG

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 records show he was born on 10 May 1956.  Having had prior service in the U.S. Marine Corps, U.S. Marine Corps Reserve, and ARNG, the applicant enlisted in the CAARNG for a period of 6 years on 21 May 2002.  

3.  On 21 March 2003, while in an active status at the San Diego Armory, he was carrying a desk when he slipped and fell down a flight of stairs, injuring both knees.  He was treated in an outpatient status at the National Medical Center, San Diego, CA.  His injury was determined to be in line of duty.

4.  On 14 May 2003, he was ordered to active duty in support of Operation Noble Eagle.  He was directed to report to the mobilization station at Fort Carson, CO.

5.  On 20 May 2003, he complained of chronic knee pain and chronic back pain.  A routine review of the knee revealed no evidence of a fracture, dislocation, or other abnormality.  No joint effusion or significant arthritic change was seen.  Additionally, a radiologist report indicated that his lumbosacral spine revealed the vertebral bodies to be of normal height with adequate maintenance of the intervertebral disk space. 

6.  On 28 May 2003, with the persistence of his pain, he was issued a permanent physical profile for chronic back and knee pain.  The profile restricted running and prolonged marching or heavy lifting.
7.  On 8 September 2003, his immediate commander submitted a performance statement wherein he indicated that as a result of having pain in his knees and back, the applicant was assigned to the 858th Quartermaster Company in a medical hold status.  He had not been able to perform the duties of his primary specialty.  His had previously experienced knee pain as a result of physical training in June 2002.  He received treatment and physical therapy then.  Due to his injury, it was unlikely he would be able to perform the duties required of his grade and/or military specialty.

8.  On 10 September 2003, he underwent a physical examination at Evans Army Community Hospital (EACH), Fort Carson, CO, to determine his fitness for duty.  His narrative summary shows he was diagnosed with mechanical low back pain and bilateral anterior knee pain.  The military physician indicated that he failed to meet retention criteria of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and recommended his referral to the Army physical disability evaluation system (PDES).

9.  On 14 November 2003, an MEB convened at EACH, Fort Carson, CO, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of lumbar spine - low back pain, and bilateral knees - anterior knee pain syndrome.  He was also diagnosed with various other conditions that met retention standards, including depressive disorder, adjustment disorder, occupational difficulties, epicondylitis, gastroesophageal reflux, onychomycosis, vision deficit, and elevated cholesterol.  The MEB recommended his referral to a PEB.  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

10.  On 23 December 2003, an informal PEB convened at Fort Lewis, WA.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to:

* Bilateral anterior knee pain syndrome attributed to his fall on 21 March 2003
* Low back pain for 10 to 15 years, said to have been aggravated by the same incident

The PEB rated him under the VA Schedule for Rating Disabilities (VASRD), assigned codes 5099 and 5003 for the knee condition and 5299 and 5237 for the low back condition, and granted him a 0% disability rating for each condition.  The PEB also considered his other conditions listed on his MEB but did not find them unfitting and therefore not ratable.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  

11.  The applicant was counseled regarding his medical condition and of the findings and recommendations of the PEB.  He was also counseled and given a full explanation of the results of the findings and the recommendations, and of his rights under the law.  Subsequent to this counseling, on 29 December 2003, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

12.  He was honorably discharged from active duty on 22 February 2004 by reason of disability with entitlement to severance pay under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The DD Form 214 he was issued shows he completed 9 months and 9 days of active service.  He received $15,132 in severance pay.

13.  It appears that the CAARNG was unaware of his discharge until 2 December 2004 when the Joint Forces Headquarters, CAARNG published Orders 337-1054 ordering his discharge from the ARNG effective 23 February 2004 in accordance with Section 260 of the California Military and Veterans Code and paragraph      2-26j(1) of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) by reason of being medically unfit for retention standards.  

14.  He was also issued an NGB Form 22 that shows he was discharged on       23 February 2004 under the same State and NGB authority.  He completed 1 year, 9 months, and 3 days of ARNG service during this period. 

15.  There is no indication in the applicant's records that he suffered any other illness/injury that rendered him unable to perform the duties required of his grade and/or military specialty and warranted his entry into the PDES.  

16.  There is no indication the applicant performed any duties in the CAARNG subsequent to his medical discharge on 22 February 2004.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, 

rank, or rating.  It provides for medical evaluation boards, which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.

18.  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 physical evaluation board rates all disabilities using the VASRD.  Ratings can range from 0 to 100%, rising in increments of 10%.

19.  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.

20.  Section 260 of the California Military and Veterans Code provides for various reasons that cause discharge of enlisted personnel from the CAARNG.  One of the reasons is a certificate of disability.

21.  NGR 600-200 prescribes the criteria, policies, processes, procedures and responsibilities to classify; assign; utilize; transfer within and between states; and separate ARNG enlisted Soldiers.  Chapter 8 provides for separation of enlisted Soldiers.  Paragraph 8-26j(1) provides for the discharge from State ARNG and/or Reserve of the Army of Soldiers medically unfit for retention standards of chapter 3, Army Regulation 40-501.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained injuries to his knees on 21 March 2003 while he was drilling with his unit.  His injury was determined to be in line of duty.  He was mobilized shortly thereafter and he reported to Fort Carson, CO.  While there, he complained of knee pain and back pain.  He underwent a medical examination that warranted his entry into the PDES.  He underwent an MEB which recommended referral to a PEB.  The PEB found his back and knee conditions prevented him from performing his duties and determined he was physically unfit. The PEB recommended separation with entitlement to severance pay.

2.  He was counseled regarding his medical condition and of the findings recommendations of both the MEB and PEB.  He was also given a full 

explanation of the results of the findings and recommendations of both boards and of his rights under the law.  Subsequent to this counseling, he concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

3.  The MEB noted the applicant had other conditions.  However, those conditions met retention standards and were necessarily unfitting.  In any case, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

4.  The determination of medical unfitness and subsequent disability discharge mandated a discharge from the ARNG as required by State law and ARNG regulation.  While it is acknowledged that the orders should have been published immediately, this does not negate the fact that he was medically unfit to perform the duties required by his grade and military specialty.  It appears he could not have performed duties after his discharge on 22 February 2004 because he was medically unfit to do so, and there is no evidence to show that he attended drills subsequent to 22 February 2004.  Therefore, he is not entitled to additional service credit or pay. 

5.  Under the laws governing the Army PDES, regardless of the Soldier’s component, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty criteria to be eligible to receive retirement and severance pay benefits:  the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training, and the disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.   

6.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  Other than his dissatisfaction with the outcome of the disability process, he has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant 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)                                         AR20110011802



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ABCMR Record of Proceedings (cont)                                         AR20110011802



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