IN THE CASE OF:	  

		BOARD DATE:	    31 May 2012

		DOCKET NUMBER:  AR20110019504 


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, referral to the Army Physical Disability Evaluation System (PDES) for processing.  He also requests that his discharge be changed to show he was medically retired due to physical disability.

2.  The applicant states:

	a.  He was wrongfully separated from service without receiving proper counseling regarding his right to referral to the PDES for conditions that led to his unfit findings for continuance in the military.

	b.  The evidence showed he was treated for a lower back injury, lumbar radiculopathy in his right leg, hypertension, arthritis, and right retro-auricular cervical scar while on Title 10 active duty orders in support of contingency operations. 

	c.  The Puerto Rico Army National Guard (PRARNG) failed to ensure he was properly counseled and advised of his right to elect referral to the PDES in accordance with Army Regulation 635-40.

3.  The applicant provides:

* Multiple medical documents
* Active duty order
* Amendment order
* Reassignment order
* Two DA Forms 2173 (Statement of Medical Examination and Duty Status)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Form 21-526 (Veteran's Application for Compensation and/or Pension)
* VA Letter dated 24 March 2005 with Rating Decision
* PRARNG Fit for Duty Determination Board (FFDDB) Acknowledge Statement
* DA Form 7349 (Initial Medical Review-Annual Medical Certificate)
* DA Form 3349 (Physical Profile)
* Army National Guard Retirement Points History Statement
* PAARNG Memorandum
* Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter)
* NGB Form 22 (National Guard Bureau Report of Separation and Record of Service)
* Discharge order

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 military record shows he initially enlisted in the PRARNG on 18 July 1985.  He held military occupational specialties (MOS) 11B (Infantryman) and 95B (Military Police).

3.  On 21 January 2003, he was ordered to active duty with his PRARNG unit in support of Operations Noble Eagle and Enduring Freedom.  On 26 January 2003, he completed a DA Form 2795 (Pre-Deployment Health Assessment) which shows he indicated:

* his general health was excellent
* he had no medical or dental problems
* he currently was not on a profile, light duty, or undergoing a medical board


4.  A DD Form 2173, dated 11 September [sic] 2003, shows in July 2003 the applicant injured both of his arms after carrying heavy equipment causing an epicondylitis bilateral (tendonitis) that prevented certain movement and numbness in his hands causing him to lose strength.  This document also shows he injured himself again on 9 October 2003 while on a detail lifting heavy boxes at Camp Santo Domingo Iraq.  It does not show an in line of duty (LOD) determination was considered.

5.  A DD Form 2173, dated 7 January 2004, shows the applicant was medically treated for a back injury at the 530th Military Police Battalion Medical Section in Diwaniyah Iraq, after the vehicle he was riding in hit a big hole in the road due to poor visibility caused by fog.  It also shows this injury was determined to be in the LOD.

6.  On 5 June 2004, the applicant was honorably released from active duty by reason of completion of required active service and transferred to the PRARNG.  His DD Form 214 shows he completed 1 year, 4 months, and 15 days of creditable active service for the period it covered.

7.  On 24 March 2005, the Department of Veterans Affairs (VA) granted the applicant an overall service connected disability rating effective 6 June 2004 of 30 percent (%), and 40%, effective 30 September 2004 based on the following conditions:

Medical Description
Percent (%) Assigned
Lumbar paravertebral myositis; posterior bulging disc at L5-S1
20%
Lumbar radiculopathy in right leg
10%
Hypertension
10%
Arthritis, both knees
10%
Right retroauricular cervical scar
0%
8.  On 2 July 2005, a DD Form 3349 was issued to the applicant for chronic back pain, arthritis, and hypertension.  It shows he was assigned a "3" rating under the "P" factor and a "4" rating under the "L" factor of his PULHES:  P - physical capacity or stamina; U - upper extremities; L - lower extremities; H - hearing and ears; E - eyes; and S - psychiatric, based on his medical conditions.

9.  A PRARNG Element, Joint Forces Headquarters, Deputy Chief of Staff for Personnel (DCSPER), Memorandum, dated 28 July 2005, shows a FFDDB convened on 2 July 2005, which shows:

	a.  The applicant's diagnosis of chronic low back pain with herniation of pulposus nucleus and arthritis were evaluated;

   b.  he was not able to comply with all of his MOS duties;
   
   c.  he qualified for medical retirement;
   
   d.  he had a permanent "P3" and "L4" profile with assignment limitations of unfit for service; 
   
   e.  in accordance with Army Regulation 40-501, paragraph 3-14a, and 3-39h, he was unfit for retention in the PRARNG;
   
   f.  a request for completion for all administrative actions was initiated to effect the applicant's separation from the PRARNG within 30 days; and

	g.  he had completed 20 years of service.

10.  An NGB Form 22, effective 22 July 2005, shows the applicant was separated from the PRARNG and transferred to the Retired Reserve.

11.  In a memorandum, dated 22 September 2011, the DCSPER, G1, PRARNG, stated that after reviewing the applicant's separation action and conducting detailed research of his situation the G1 determined the following.

   a.  The evidence clearly showed he received complex medical treatment while on active duty for a condition for which he had been declared "unfit";
   
   b.  The evidence also showed his chain of command and the PRARNG failed to complete an LOD investigation and properly refer him for PDES processing;
   
   c.  There was no evidence to show he was properly counseled as to his rights to referral to a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) for the purpose of disability benefits determination as a result of a medical condition acquired while on a Title 10 active duty status in support of contingency operations;
   
   d.  The PRARNG G1 further stated the applicant was no longer a member of the PRARNG.  The G1 did not have the authority to order his reinstatement, or to change his retirement status to a disability retirement; and
   
   
   
   e.  The PRARNG G1 further recommended:
   
       (1)  the ABCMR approve the applicant's request for PDES processing;
 
       (2)  the Surgeon General contact the applicant and arrange a physical evaluation via appropriate medical facilities;

       (3)  if appropriate, referral to an MEB and PEB;

       (4)  the OTSG use appropriate invitational travel orders to accomplish MEB/PEB processing if necessary;

       (5)  in the event the formal PEB becomes necessary, issue the applicant invitational travel orders to prepare for and participate in consideration of his case;

       (6)  should a determination be made that the applicant should have been separated under the PDES, the ABCMR proceedings will serve as the authority to void his administrative discharge; and

       (7)  issue him the appropriate disability separation retroactive to his original ARNG separation date with entitlement to all back pay and allowances, less any entitlements already received.

12.  Army Regulation 135-178 prescribes the policies for the separation of enlisted Soldiers from the Reserve Components.  Chapter 15 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness.

13.  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.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several LOD criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

14.  Army Regulation 635-40 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 Army Regulation     40-501, chapter 3.
15.  Chapter 8 of the disability regulation contains the rules and policies for disability processing of Reserve Component (RC) Soldiers on active duty.  It states, in pertinent part, that an RC Soldier will be referred for medical processing through the PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to processing through the Army's PDES. There is sufficient evidence to support his claim.

2.  The evidence of record confirms the applicant sustained injuries while on active duty in support of Operations Noble Eagle and Enduring Freedom and at least on one occasion his injuries were determined in the LOD.  Based on his injuries sustained in the LOD, an FFDDB found him unfit for further duty and directed his separation from the PRARNG within 30 days without referral through the PDES.  As a result, it appears he may not have been properly counseled concerning the options available to him due to his medical disqualification.

3.  By regulation, RC Soldiers will be referred for medical processing through the PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  Therefore, based on the applicant's injuries sustained in the LOD that resulted in his disqualification for further service by the FFDDB, it would be equitable to provide him the opportunity to have his medical fitness determined by an MEB/PEB.

BOARD VOTE:

________  ________  ________  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:

	a.  directing the Office of The Surgeon General to contact the individual and arrange, via appropriate medical facilities, an MEB; and

	b.  if appropriate, referral to an informal PEB.

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the MEB and, if necessary, the PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned 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 a PEB finds that the individual concerned has a medically unfitting condition and it is compensable, appropriate action will be taken to void his administrative discharge and issue him the appropriate disability separation retroactive to his original ARNG separation date with entitlement to all back pay and allowances, less any entitlements already received.




      _______ _   _______   ___
               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)                                         AR20110019504



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ABCMR Record of Proceedings (cont)                                         AR20110019504



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