IN THE CASE OF:
BOARD DATE: 9 February 2012
DOCKET NUMBER: AR20110012784
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 consideration by a Medical Evaluation Board (MEB)/ Physical Evaluation Board (PEB) and a medical retirement.
2. The applicant states he never went through the MEB/PEB process.
3. The applicant provides:
* Department of Veterans Affairs (VA) Rating Decision, dated 11 May 2006
* Numerous medical records
CONSIDERATION OF EVIDENCE:
1. The applicant was ordered to active duty from the Army National Guard on
24 July 2005 in support of Operation Iraqi Freedom. He served in Iraq from
22 August 2005 until he was wounded in action in September 2005 (injured in an improvised explosive device blast) and transferred to the United States on
25 September 2005 for medical treatment.
2. Medical records show he sustained severe injuries to both lower extremities from his heels to his hips and he had multiple open wounds and multiple fractures.
3. On 17 January 2006, a line of duty determination of "In Line of Duty" was approved by his unit commander.
4. He was honorably released from active duty on 31 January 2006.
5. On 11 May 2006, the VA granted him service connection for fragment wounds to both lower extremities with compound fractures of both tibias and right calcaneus and talus, closed fracture of left calcaneus with bilateral ankle fusions, bilateral knee fibroarthrosis, and right hip dislocation with osteoarthritis (100%).
6. Records show he resumed his medical treatment at Northwestern Medical Center and the Chicago VA. In 2007, he was approved for special housing. Publicly available information shows he now participates in sports for disabled veterans, pedaling a tricycle with his arms.
7. On 15 September 2008, he was honorably discharged from the Army National Guard due to financial hardship.
8. There is no evidence which shows the applicant was evaluated by an MEB or PEB prior to his release from active duty.
9. 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. 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 (MTFs) who are treating Soldiers may initiate action to evaluate the Soldiers physical ability to perform the duties of his or her office, grade, rank, or rating. The commander will advise the Soldiers 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.
10. Army Regulation 635-40 states that MEBs are convened to document a Soldiers medical status and duty limitations insofar as duty is affected by the Soldiers status. A decision is made as to the Soldiers 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's request for consideration by an MEB and PEB was carefully considered and determined to have merit.
2. The medical documentation provided by the applicant is comprehensive but the narrative that would explain the lack of an MEB is absent. It is likely that after the applicant's initial surgeries (multiple), he was allowed to resume treatment near his home duty station. He resumed his treatment at Northwestern Medical Center and the Chicago VA who rated him at 100% (temporary because he still needed several surgeries).
3. In view of the nature of his injuries, particularly the multiple heel fractures, it is not likely he will ever be considered "fit" again. It is reasonable to presume that at the time of completion of active service and his subsequent discharge from the Army National Guard, he was unfit. It appears he was receiving adequate care and compensation through the VA system and the need for an MEB was overlooked.
4. Prior to his release from active duty, he should have undergone an MEB and PEB. He was not fit at the time he was discharged and will not likely ever be fit for duty again. It is also probable that he was not stable for rating purposes at the time of discharge and he should have been placed on the Temporary Disability Retired List. At this point, invitational orders for an MEB would seem to be the best option. Although it has been several years since his discharge, his current condition will speak for itself and his medical records are adequate to determine if and when he was stable for rating purposes.
5. Based on all of the foregoing, it would be appropriate in this case to:
* Issue the applicant invitational travel orders for the purpose of evaluation by the Physical Disability Evaluation System (PDES) via MEB and PEB
BOARD VOTE:
____x___ ___x____ ____x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by offering him the opportunity to undergo a PDES evaluation to determine his fitness for retention in the Army:
a. by directing the Office of The Surgeon General to contact him and arrange, via appropriate medical facilities, a physical evaluation; and
b. if appropriate, referral to an MEB and an informal PEB.
2. The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the physical evaluation and, if necessary, the MEB and PEB.
3. In the event that a formal PEB becomes necessary, the applicant will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB.
4. In the event it is determined that the applicant should be medically separated, his 31 January 2006 honorable separation from active duty should be voided and he should be medically separated or retired.
_______ _ _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) AR20110012784
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ABCMR Record of Proceedings (cont) AR20110012784
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