IN THE CASE OF:	  

		BOARD DATE:  31 July 2012

		DOCKET NUMBER:  AR20110020448 


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 his transfer to the Retired Reserve be voided and he be processed through the Physical Disability Evaluation System (PDES) with a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB).

2.  The applicant states: 

   a.  on 23 March 2002, he was directed to appear before a medical duty review board (MDRB) after which he was issued a permanent profile rating of 4 for his lower extremities and recommended for separation; and   
   
   b.  his separation from the Puerto Rico Army National Guard (PRARNG) was erroneous.  He was assigned to the Retired Reserve by reason of a permanent profile and given by a Fit for Duty Determination Board (FFDDB) on 23 March 2002 without the opportunity to elect referral to the PDES for proper medical disposition.

3.  The applicant provides:

* DD Form 1380 (U.S. Field Medical Card)
* DD Form 689 (Individual Sick Slip)
* two DA Forms 2823 (Sworn Statements) 
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* two DA Forms 3349 (Physical Profile Board Proceedings) 
* Standard Form (SF) 88 (Report of Medical Examination)
* SF 93 (Report of Medical History)
* SF 509 (Progress Notes)
* two SFs 513 (Consultation Sheet)
* SF 558 (Emergency Care and Treatment)
* SF 600 (Chronological Record of Medical Care)
* National Guard Form 40-501 (Annual Medical Certification)
* Report of Medical Assessment
* Orders
* three memoranda

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.  He enlisted in the PRARNG on 23 February 1982.

3.  He submitted two DA Forms 2173, dated 21 July 1986, which state his lower back injury was incurred when he fell 12 feet from the rope bridge obstacle while on active duty for training.  Item 31 (Formal Line of Duty (LOD) Investigation Required) is checked "NO" and item 32 (Injury is Considered to Have Been Incurred in the LOD) is checked "YES."

4.  He submitted:

	a.  an SF 558, dated 21 July 1986, which shows he was transported by ambulance due to trauma to his back;
	
   b.  an SF 509, which shows he was admitted to the hospital on 21 July 1986 and discharged on 24 July 1986 after being diagnosed with acute lumbar spine strain;
   
   c.  two SFs 513, dated 8 July and 11 September 1986, which show he was referred to Orthopedics due to a 12 foot fall he incurred on active duty for training on 21 July 1986; 
   d.  two DA Forms 2823, dated 21 and 23 July 1986, which state he was injured when he fell from an obstacle course bridge while training with his unit;
   
   e.  a DD Form 689, dated 24 July 1986, which shows he received a 3 week profile for back strain;

   f.  an SF 600, dated 8 August 1986, which shows he was seen for lower back pain that occurred on 21 July 1986;

   g.  a DA Form 3349, dated 12 September 1986, which shows he was awarded a temporary level 3 profile to his lower extremities as a result of low back pain that was scheduled to expire on 12 December 1986. 
   
   h.  an SF 93, dated 12 December 2000, which shows he stated:

   (1)  in item 7a (Present Health), he takes Motrin for back pain;
   
   (2)  item 10 (Past/Current Medical History), he checked recurrent back
pain or any back injury; 
   
   (3)  (Remarks), he wrote "when he began to use the ranger vest in Kosovo, he began to feel low back pain";
   
   (4)  item 25 (Physician Summary and Elaboration of All Pertinent Data),
the physician wrote "back pain, over the counter medications, no treatment";
    
   i.  an SF 88, dated 12 December 2000, which shows he received a redeployment examination.  Item 17w (spine, other musculoskeletal) was checked "normal";
   
j.  a Report of Medical Assessment, dated 13 December 2000, indicates in:
   
   	(1)  item 10 (Compared to his last medical assessment/physical examination, my overall health is), he checked "Worse" and wrote "he has a back pain maybe from use of ranger vest";
   
   	(2)  item 13 (Have you suffered any injuries or illness while on active duty for which you did not seek medical care?), he checked "yes" and wrote "for strong back pain"; and 
		
   (3) item 15 (Do you have any conditions which currently limit your ability to
work in your primary MOS or require geographic or assignment limitations?), he checked "yes" and wrote "strong back pain at low (lower) region."
   k.  No National Guard Bureau Form 22 (Report of Separation) is available, but he was apparently transferred to the U.S. Army Reserve (USAR) on an unknown date.  Orders Number D-01-101253, issued by the U.S. Army Reserve Personnel Command (now known as Human Resources Command), dated 9 January 2001, show he was honorably discharged from the USAR effective the date of the orders.

   l.  a memorandum from the Commonwealth of Puerto Rico, PRARNG, Arecibo, PR, Subject:  Request for Medical Evaluation Board (MEB), dated 14 March 2002, shows:

   (1)  an MEB was requested for the applicant; and  
   
   (2)  he received a 60 percent entitlement from the Department of Veterans
Affairs (VA). 

   m.  a DA Form 3349, dated 23 March 2002, shows he was awarded a permanent level 4 profile for his lower extremities due to multilevel herniated nucleus pulposus and spinal stenosis.
   
5.  He submitted a memorandum from the PRARNG, Headquarters, State Area Command, Subject:  PRARNG, MDRB, dated 15 April 2002, which stated an MDRB convened on 23 March 2002, and found he was unable to comply with all his military occupational specialty (95B) military police duties and had 18 years.  He qualified for retirement under the Temporary Early Retirement Authority (TERA).  He had a 60% VA compensation.  The MDRB recommended a permanent level 4 profile for lower extremities with assignment limitations of unfit for service.  In accordance with Army Regulation 40-501, paragraph 3-39c, he was unfit for retention in the PRARNG.  Item 3 (MDRB Action) of the National Guard Form 40-501 was checked "Separate" as attested to by his signature.  

6.  His record contains an ARPC Form 249-E (Chronological Statement of Retirement Points), dated 20 June 2012, which shows he was placed in a retired status on 8 June 2002.

7.  In a memorandum from the PRARNG, dated 5 October 2011, Subject:  Request for Correction of Erroneous Separation from PRARNG by Medical Reasons, an official from the Office of the Deputy Chief of Staff for Personnel, Joint Forces Headquarters, PRARNG, stated, in pertinent part, the following:

	a.  After reviewing and conducting a detailed research of his case the PRARNG recommended approval of his request.  The applicant had a low back injury incurred in the LOD while participating in his scheduled annual training in 1986 in Panama.  Evidence shows his chain of command and the PRARNG failed to ensure he was properly referred to the PDES in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and Department of Defense Instructions (DoDI) 1332.18.
	
	b.  There was no evidence the Soldier was properly counseled as to his rights to referral to a MEB/PEB for the purpose of disability benefits determination as a result of a medical condition incurred while on active duty.  It was his commander's responsibility to ensure the proper counseling was issued concerning these rights prior to follow on with the medical recommendation issued by the MDRB.

	c.  The PRARNG recommended the applicant’s PRARNG and the Department of the Army records be corrected by:

		(1)  directing the Office of the Surgeon General contact the applicant and arrange, via appropriate medical facilities a physical evaluation;

		(2)  if appropriate, referring him to an MEB/PEB;

		(3)  directing the Office of the Surgeon General to use appropriate invitational travel orders to accomplish the MEB/PEB if necessary;

		(4)  if a formal PEB becomes necessary, the applicant be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB; and 

		(5)  should a determination be made that he should have been separated under the PDES that the ABCMR proceedings serve as the authority to void his administrative discharge and issue him the appropriate disability separation retroactive to his original ARNG separation date with entitlements to all pay and allowances, less any entitlements already received.

8.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.  

   a. Chapter 7 provides guidance on the classification of individual Soldiers according to functional abilities.  The physical profile serial system is based primarily upon the function of body systems and their relation to military duties. The functions of the various organs, systems, and integral parts of the body are considered.  Since the analysis of the individual’s medical, physical, and mental status plays an important role in assignment and welfare, not only must the functional grading be executed with great care, but clear and accurate descriptions of medical, physical, and mental deviations from normal are essential.  In developing the system, the functions have been considered under six factors designated "P–U–L–H–E–S."  Four numerical designations are used to reflect different levels of functional capacity.  The basic purpose of the physical profile serial is to provide an index to overall functional capacity.  Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4.

   b. Paragraph 7-3c(4) states that a profile serial containing one or more numerical designators of "4" indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. 

   c. National Guard 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 only.  Soldiers pending separation for LOD injuries or illnesses will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation
635-40.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

10.  DoDI 1332.18 (Separation or Retirement for Physical Disability), paragraph 3.9 provides, in pertinent part, that Service members who are otherwise eligible for, and who have the minimum number of years of service to qualify for, military retirement under any law in effect at the time of their physical disability evaluation, and who are pending separation for unfitness because of physical disability or medical disqualification, shall be afforded the opportunity to elect disability separation or to apply for, and, if approved, be retired for length of service.

11.  Title 10, U.S. Code, Section 12731b (Special rule for members with physical disabilities not incurred in line of duty) provides, in pertinent part, that in the case of a member of the Selected Reserve of a reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of entitlement to retirement pay, determine to treat the member as having met the required 20 years of qualifying service.  The Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay if the member has completed at least 15 years, and less than 20 years of qualifying service.

12.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U.S. Code by adding section 1273b, (Special Rule for member with physical disabilities not incurred in the line of duty).  Section 1273b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records are incomplete.  He enlisted in the ARNG in 1982; orders issued by the U.S. Army Reserve Personnel Command dated January 2001 show he was discharged from the USAR; documents from the PRARNG dated 2002 indicate he reentered the ARNG at some point (or the January 2001 orders were invalid); and his ARPC Form 249-E indicates he is in a retired status (which comports with what he contends) yet the last orders (the January 2001 orders) show he was discharged.

2.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  Therefore, it must be presumed the applicant received proper counseling at the time.  

3.  He incurred a lower back injury in July 1986 while navigating an obstacle course and it was determined his injury was in the LOD.  He continued to serve in his rank and MOS for over 16 years with no record of treatment for a back condition.  His pain is now attributed to the use of a ranger vest during his deployment in 2000.  There is no connection between the degenerative changes causing chronic pain in 2000 and the pain that was associated with his fall in 1986 that was temporary.  

4.  In order to be processed through the PDES his disability must have been incurred or aggravated while he was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  Without a connection between his condition in 2000 and his injury in 1986 there is insufficient evidence to grant his request.
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)                                         AR20110020448





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ABCMR Record of Proceedings (cont)                                         AR20110020448



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