IN THE CASE OF:	  

		BOARD DATE:  7 June 2012

		DOCKET NUMBER:  AR20110021714 


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 honorable discharge from the Puerto Rico Army National Guard (PRARNG) for being medically unfit for retention be revoked and he be reinstated in the PRARNG for the purpose of being processed through the Army Physical Disability Evaluation System (PDES). 

2.  The applicant states, in effect:

	a.  His discharge from the ARNG was erroneous because the correct procedures were not followed.  He was placed in the Retired Reserve by reason of permanent profile as determined by a Fit for Duty Determination Board (FFDDB) conducted on 7 November 2004.  He was not afforded the opportunity to elect referral to the PDES.

	b.  He was not given the opportunity to be processed in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for the purpose of establishing disposition and disability benefits.  The condition for which he was declared unfit for retention was incurred during active duty training in Panama during the period 16-30 March 1985 for which he has an approved line of duty determination.  Further, his condition was aggravated by military service and he underwent surgery for the condition.  This condition caused him to be physically unfit at the time of discharge and he was not referred to the PDES.   

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DA Form 3349 (Physical Profile)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* ARNG Retirement Points History Statement
* Sworn statement
* Department of Veterans Affairs (VA) medical records
* Service personnel records

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 enlisted in the PRARNG on 12 June 1980.

3.  A DA Form 2173, dated 23 March 1985, shows he injured his back in March 1985 during a training exercise in Panama.

4.  A DA Form 3349, dated 7 November 2004, shows he was issued a permanent profile of "4" for chronic incapacitating back pain and left shoulder pain.

5.  An FFDDB convened on 7 November 2004 and he was evaluated as follows:

* He was not able to perform all of the duties associated with his military occupational specialty 11B (infantryman)
* He has 23 years of service
* He qualifies to retire due to medical conditions
* He was given a permanent profile for upper and lower extremities with assignment limitations of unfit for service


* He is unfit for retention in the PRARNG In accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-12b(1), 
      3-39e and 3-39h

6.  He was notified he was medically unfit for retention in the PRARNG and that he would be discharged effective 8 November 2004 due to his medical condition.  He signed the acknowledgment statement on 7 November 2004.

7.  On 8 November 2004, he was honorably discharged from the ARNG for being medically unfit for retention and he was assigned the U.S. Army Reserve Control Group (Retired).

8.  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 line of duty 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 the proximate cause was while performing active duty or inactive duty training.

9.  Army Regulation 635-40 states, in pertinent part, that when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of his or her grade or rank because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501.

10.  Title 10, U. S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows:

   a.  The applicant injured his back in March 1985 during a training exercise in Panama.

   b.  Almost 20 years later, he was issued a permanent profile "4" for chronic incapacitating back pain and left shoulder pain and he was found unfit for retention in the ARNG by an FFDDB.
   c.  On 8 November 2004 he was honorably discharged from the ARNG for being medically unfit for retention.

2.  He contends the medical condition for which he was declared unfit for retention was incurred while he was on active duty for training in Panama in March 1985.  However, the evidence shows he subsequently successfully served in the ARNG for almost 20 years prior to discharge being medically unfit for retention.   

3.  He contends his discharge from the ARNG was erroneous because he was not afforded the opportunity to be processed through the PDES.  However, there is no evidence which shows his chronic incapacitating back pain and left shoulder pain were incurred or aggravated while he was entitled to basic pay or was the proximate cause of his pain while performing active duty or inactive duty training or that it was from other than the normal aging process.  Therefore, there is no basis for granting the applicant's 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)                                         AR20110021714



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ABCMR Record of Proceedings (cont)                                         AR20110021714



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