IN THE CASE OF:	  

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110016889 


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 record to change his honorable discharge to an honorable discharge for medical disability.

2.  He states while attending the Noncommissioned Officer (NCO) Development School from 18 April to 3 May 2008, he had to carry 80 pounds on a march.  Eighty pounds was 71 percent of his weight of 113 pounds.  His neck and back bothered him after the march.  He underwent surgery on 5 October 2009 to have a titanium support installed in his neck to keep him from being paralyzed. 

3.  The applicant provides a:

* Non-Injury Status Report
* DA Form 1059 (Service School Academic Evaluation Report)
* memorandum, subject:  Notification of Medical Unfitness for Retention Reference: [the applicant]
* doctor's note
* Return to Work Certification

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 28 February 1989 and served until 27 February 1996.  Following a break in service, on 26 January 2007, he enlisted in the USAR for a period of 6 years in the rank/grade of specialist/E-4.  He completed the course for military occupational specialty 88M (Motor Transport Operator) and was awarded this MOS.
2.  A DA Form 1059 shows he attended the Warrior Leader Course from 19 April to 3 May 2008 and successfully completed the course.

3.  On or about 1 April 2009, he completed a Functional Capacity Certificate.  The form shows he reported he was unable to participate in numerous activities required of Soldiers due to his neck and back.  He also reported having asthma, and he indicated he had a temporary profile for his neck and back and asthma.

4.  On 1 April 2009, he underwent a periodic health assessment (PHA).  He reported he had been seen by a health care provider for arthritis and curvature of the neck causing back pain and numbness of both arms and hands.  The examining provider noted he had a "one year history of pain moderate left cervical region causing bilateral parathesia.  non dermational worse with stress."  He also reported having asthma, depression, and irritable bowel syndrome (IBS).  The form documenting the PHA shows it was reviewed by the Command Surgeon's Office, U.S. Army Human Resources Command (AHRC), St. Louis, MO, on 4 September 2009.

5.  On 4 September 2009, the Physical Review Board, AHRC, St. Louis, MO, determined he did not meet medical retention standards published in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, based on diagnoses of osteoarthritis, depression, asthma, hearing loss, and IBS.  

6.  A Physical Profile, dated 4 September 2009, shows he was given a permanent physical profile based on his diagnoses of osteoarthritis, depression, asthma, hearing loss, and IBS.  The form shows an "x" in the box indicating he needed a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB).

7.  On 3 November 2010, Headquarters, 99th Regional Support Command, Fort Dix, NJ, issued Orders 10-307-00037 honorably discharging him from the USAR effective 2 December 2010.  The orders show the authority for his discharge was Army Regulation 135-178 (Enlisted Administrative Separations).  He completed 1 year, 10 months, and 5 days of USAR service qualifying for retirement.

8.  The record is void of documentation showing he sustained or aggravated physically unfitting disabilities while entitled to basic pay.

9.  He provides the following: 

	a.  A Non-Injury Status Report, dated 1 April 2009, shows he underwent a PHA.  The form shows the entries "able to perform essential functions" and "no medical restrictions."
	b.  A doctor's note, dated 10 September 2009, states he was to be excused from Army service until further notice for neck pain.  The note shows he was scheduled for surgery on 5 October 2009.

	c.  A Return to Work Certification shows he was under a doctor's care and was unable to participate in the USAR until released from care.  The form shows he had undergone surgery on 5 October 2009 and suffered wound complication with infection.  He underwent another operation on 14 November 2009.  

	d.  A memorandum, subject: Notification of Medical Unfitness for Retention Reference: [the applicant], dated 27 October 2010, from Headquarters, 99th Regional Support Command, Fort Dix, NJ, notified him he was medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501, chapter 3.  He was informed of the reasons for his medical disqualification and notified he was required to complete an enclosed "Acknowledgement of Notification of Medical Unfitness for Retention and Elections Option" within 30 days.  

		(1)  The "Acknowledgement of Notification of Medical Unfitness for Retention and Elections Option" he was asked to complete is not available for review; however, it would have required him to acknowledge the notification and elect one of the following options:

			(a)  request reassignment to the Retired Reserve in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), if he had completed 20 years of qualifying years;

			(b)  request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 (15 year retirement);

			(c)  request honorable discharge from the USAR; or

			(d)  request an informal MEB/PEB to review his medical records for a final determination of his medical fitness for retention.

      (2)  In a handwritten note on the memorandum, he states, in part, he did not dispute the action because "the Army said that you had to have 16 [years] of service to request medical retirement."  

10.  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 incurred while entitled to basic pay.  It states that 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 his or her office, grade, rank, or rating.  Under the laws governing the Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically-unfitting disabilities must meet several LOD 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 must have been the proximate cause of performing active duty or inactive duty training.

11.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement.  Paragraph 9-12 states that Reserve Component (RC) Soldiers with non-duty related 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.  Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities.  Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the U.S. Army Reserve Command Regional Support Command or the AHRC Command Surgeon's office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.
   
12.  Army Regulation 135-178 sets policies and procedures for administrative separation of Army National Guard of the United States and USAR enlisted Soldiers.

   a.  Paragraph 15-1k states discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is:

   (1)  granted a waiver under Army Regulation 40-501, as applicable;

      (2)  determined fit for duty under a non-duty related PEB fitness determination under the provisions of Army Regulation 635-40; or

   (3)  eligible for transfer to the Retired Reserve under the provisions of Army Regulation 140-10.
   
   b.  Soldiers who do not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training will be processed as specified in Army Regulation 635-40 if otherwise qualified.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show and the applicant has not provided evidence showing he incurred a disabling condition during a period he was entitled to basic pay or that he aggravated a previously-existing condition while entitled to basic pay.  

2.  From the limited medical information available, almost exclusively from the applicant without documentation, it appears that he had arthritis and a curved spine prior to the rucksack march.  He was found to have several medical conditions that did not meet retention standards.  However, since his neck pain was attributed to arthritis and curvature (not herniated discs) it does not appear that carrying a heavy rucksack caused or permanently aggravated his problems. He was properly notified of his medical disqualification and informed of the options available to him.  

3.  He did not have sufficient service to be eligible for transfer to the Retired Reserve, which left two options available to him:  request honorable discharge from the USAR or request a PEB to review his medical records for a final determination of his medical fitness for retention.  It appears he requested honorable discharge from the USAR.  

4.  He was properly discharged for medical unfitness, not disability.  There is no evidentiary basis for changing the type of discharge he received.  

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)                                         AR20110016889





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ABCMR Record of Proceedings (cont)                                         AR20110016889



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