IN THE CASE OF:	  

		BOARD DATE:	    4 September 2012

		DOCKET NUMBER:  AR20110023167 


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 evaluation through the Physical Disability Evaluation System (PDES).

2.  The applicant states he was treated for a lower back injury while entitled to military pay and allowances, but his chain of command did not complete a line of duty (LOD) determination.  Later, the Puerto Rico Army National Guard (PRARNG):

* wrongfully placed him before a Medical Duty Review Board (MDRB)
* issued him a permanent profile for multilevel herniated nucleus pulposus (HNP) radiculopathy L4, spinal stenosis
* recommended he be separated

3.  Additionally, the applicant states that, on 1 May 2002, he was separated without receiving proper counseling in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) and Army Regulation (AR) 135-178 (Army National Guard (ARNG) and Army Reserve: Enlisted Administrative Separations).

4.  The applicant provides:

* 28 pages of extracts from his medical and personnel records 
* letter, PRARNG G1, dated 26 October 2011
* National Guard Bureau Form 22 (Department of the Army and Air Force Report of Separation and Record of Service)
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 26 April 1980.  He was ordered to active duty for training on 9 June 1980.  He completed training and was awarded military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist).  He was released from active duty on 29 October 1980 and returned to the 755th Military Police Company, PRARNG, Arecibo, PR.

3.  Permanent Orders 87-1, Headquarters, First U.S. Army, Fort Gillem, GA, dated 27 March 2000, ordered the applicant's unit, the 755th Military Police Company, to active duty in support of contingency Operation Joint Guardian for a period of 270 days.

4.  Orders Number 73-75, Headquarters, PR State Area Command, San Juan, PR, dated 18 April 2000, ordered the applicant to active duty effective 4 May 2000.

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 January 2001 shows he was ordered to active duty in support of Operation Joint Guardian in accordance with Title 10, U.S. Code 12304.  He received imminent danger pay for Macedonia from 28 to 29 May 2000, Kosovo during the period 29 May to 6 December 2000, and Macedonia during the period 6 through 9 December 2000.

6.  A Standard Form 558 (Emergency Care and Treatment), dated 27 June 2000, shows the applicant received treatment for back pain.

7.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 30 June 2000, appears to have been completed by his unit on 30 June 2000 and subsequently completed by medical personnel on 7 October 2000, this form shows the following:
a. Item 9 (Hour and Date Examined), 7 October 2000.

   b. Item 11 (Medical Opinion) individual was not under the influence; his injury was likely to result in a claim against the government for future medical care; his injury was incurred in the LOD.

   c. Item 22, individual was on active duty under Title 10, U.S. Code, section 12304.  

   d. Item 30 (Details of Accident – Remarks) "…applicant was changing the tire.  When he finished and stood, he felt a sharp pain in his lower back.  His supervisor was notified and he was immediately taken to the Camp Bondsteel Hospital where he was treated and released.  The unit's first sergeant was notified and immediate action was taken."
   
e. Item 31 (Formal LOD investigation required) is marked "No."

8.  Orders Number 346-2258, Headquarters, United States Infantry Center, Fort Benning, GA, dated 11 December 2000, show the applicant was released from active duty effective 5 January 2001 and assigned to the 755th Military Police Company, PRARNG.

9.  His DD Form 214 shows he was honorably released for completion of required active service and returned to his previous Army National Guard status.

10.  Orders Number D-01-101273, U.S. Army Reserve Personnel Command, St. Louis, MO, dated 9 January 2001, show he was honorably discharged from the U.S. Army Reserve on 9 January 2001.  These orders were apparently later revoked or voided.

11.  On 1 May 2001, after having completed the required qualifying years of service the applicant was notified that he was eligible for retired pay at age 60.

12.  On 7 December 2001, the Department of Veterans Affairs (VA) granted the applicant a 60 percent disability rating for HNP L3-L4, L4-L5, and disc bulge 
L5-S1; left L4 radiculopathy (claimed as back condition).

13.  On 28 January 2002, the applicant was notified that his records were scheduled for review by an [Enlisted] Qualitative Retention Board (EQRB) scheduled to convene on 11 March 2002.

14.  The Commanding Officer, 755th Military Police Company, PRANG, provided a memorandum for the Adjutant General of PR/President, EQRP, dated 28 January 2002, per memorandum Recommendations for the EQRB, dated 4 February 2002.  The commander recommended the applicant not be retained.  The commander further stated the applicant had performed his duties outstandingly, but he was given a disability percentage of 60 percent from the VA and he would be processed for an MDRB.  

15.  The memorandum or EQRB proceedings, dated 4 February 2002, are not in the applicant's personnel records or contained in the applicant's interactive Personnel Electronic Records Management System (iPERMS).

16.  On 28 January 2002, the applicant signed a statement indicating his desire to be transferred to the Retired Reserve if he was not selected for retention.

17.  On 23 March 2002, the applicant was given a DA Form 3349 (Physical Profile) for multi-level HNP radiculopathy L4, spinal stenosis.  His profile was annotated as permanent and coded "1,1,4,1,1,1" with the following limitations in the physical profile serial system factors (PULHES – [P]hysical capacity or stamina, [U]pper extremities, [L]ower extremities, [H]earing and ears, [E]yes, and p[S]ychiatric):

* no physical training (PT), sitting, standing, and lying to tolerance 
* non-deployable

18.  The results of the applicant's MDRB, dated 15 April 2002, shows he:

* was diagnosed with HNP radiculopathy L4, spinal stenosis
* was not able to comply with all of his MOS duties
* had 20 years of service
* qualified to retire under medical conditions
* was receiving VA compensation with a combined rating of 60 percent
* was given a permanent profile under L4 with the assignment limitations of unfit for service
* was unfit for retention in the PRARNG, in accordance with Army Regulation 40-501(Standards of Medical Fitness), paragraph 3-39e, 

19.  On 1 May 2002, he was honorably discharged for being medically unfit for retention in accordance with NGR 600-200, paragraph 8-26j(1). He was transferred to the U.S. Army Control Group (Retired).

20.  Orders Number 106-10, Headquarters, PR State Area Command, Army National Guard, San Juan, PR, dated 10 June 2002, confirms the applicant was discharged on 1 May 2002 and transferred to the U.S. Army Control Group (Retired).
   
21.  The PRANG G1 Health Support Services (HSS) Branch provided the applicant a memorandum, dated 26 October 2011, stating in pertinent part, the following: 

   a.  After reviewing and conducting detailed research of the case, the PRANG G1 HSS office agrees and recommends approval of the applicant's request.  The evidence clearly shows the applicant had a low back injury incurred in the line of duty while on active duty in support of Operation Joint Guardian in Kosovo.  The PRARNG failed to ensure the applicant was properly referred to the PDES in accordance with AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and Department of Defense Instruction 1332.18 (Separation or Retirement for Physical Disability).

   b.  There was no evidence that shows the applicant was properly counseled as to his rights to referral to a medical evaluation board or physical evaluation board (MEB/PEB) for the purpose of disability benefits determination as a result of a medical condition acquired while on active duty under the authority of Title 10, U.S. Code, section 12304.  It was the commander's responsibility to ensure proper counseling was issued concerning these rights prior to follow on with the medical recommendation for separation issued by the MDRB.

   c.  Since the applicant was no longer a member of the PRARNG, the Command did not have the authority to order reinstatement, or to change his retirement status to a disability retirement.

   d.  The PRARNG G1-HSS recommended the following:

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

        (2)  if appropriate referral to an MEB or PEB.  The OTSG issue appropriate invitational travel orders to accomplish the MEB/PEB, if necessary;

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

        (5)  all required reviews and approvals be made subsequent to completion of the formal PEB.

   e.  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 to 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.

   f.  This is in the best interest of the Government and most importantly the Soldier.

22.  A review of the applicant's records shows the following:

* he was noted to have a history of back pain that occurred when pushing a car in 1998
* he was diagnosed with muscle strain in 2000 while in Kosovo
* he had a muscle strain, but continued to serve and was mobilized with his unit over 6 months later
* service connection was granted for herniated discs seen on an MRI during his VA evaluation in 2001
* he passed his physical training (PT) test, including sit-ups, 15 months after his muscle strain and during the same time frame the VA performed an MRI and noted his herniated discs
* in 2002, he was medically disqualified for herniated discs
* his Annual Medical Certificate, signed by a reviewer on 23 March 2002, shows he indicated no medical problems other than claudication

23.  AR 135-178 states a Soldier is entitled to be discharged on the expiration of his or her service obligation, and normally will be discharged unless action is taken to retain the Soldier beyond such expiration date.  Once a Soldier receives his/her orders, such orders may not be revoked except in one or more the following circumstances:  (1) the orders are revoked by proper authority, either orally or in writing, prior to the effective date of the discharge; or (2) when one or more of the exceptions to the doctrine of administrative finality exist (i.e. fraud; mistake of law; mathematical miscalculation; and/or substantial new evidence discovered contemporaneously within a short time following the action).  After the effective date of discharge, orders may be amended by the separation authority only to correct administrative errors, such as errors concerning grade, social security number, or misspelled name.

24.  AR 40-501 (Standards of Medical Fitness), in effect during the applicant's service, provides the following:

	a.  Chapter 3 lists the standards of medical fitness applicable to retention for all components of the U.S. Army, requiring individual assessment for determination of retainability.  Soldiers not meeting the standards of chapter 3 are considered to not meet retention standards and will require review by the State Surgeon and referral to the MDRB, in accordance with this regulation, in order to be retained in the ARNGUS.

	b.  Chapter 7 and tables 7–1 and 7–2 establish the policy on physical profiles and documenting a Soldier's physical limitations.  Any profile of “3” or greater requires referral to an MDRB to determine if the duty restriction causes significant limitations in performing normal military duty for the MOS.

	c.  A DA Form 3349 will be completed on all Soldiers requiring limitation of duty.  The MDRB is the state authority for issuance of permanent profiles for
M-Day Soldiers, with the exception of Soldiers who have been assigned a permanent P–3 or P–4 profile by a military MTF for LOD-related disabilities.  

	d.  National Guard Soldiers with nonduty-related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 are eligible to request referral to a PEB for a determination of fitness.  Because these are cases of Soldiers with nonduty-related medical conditions, MEBs from Active Army MTFs are not required and cases are not sent through the PEB liaison officers at the MTFs.  Once a Soldier requests in writing that his/her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB from the Soldier’s unit.  The documentation will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards.  AR 635–40 governs the administrative requirements for such a referral.

25.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change of his retirement to a disability retirement was carefully considered.

2.  He contends that he was wrongly discharged without proper counseling and referral to the PDES.  Although the MDRB determined the applicant did not meet retention standards in April 2002, the available personnel and medical records do not suggest that he was unfit.   He passed his PT test in September 2001 and his November 2001 Noncommissioned Officer Evaluation Report shows that he was 


satisfactorily performing the duties of his MOS and was ready for increased responsibility.

3.  The purpose of the PDES is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.

4.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.  Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation, beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.

5.  With regard to the mechanism of the applicant's injury, by multiple accounts, his herniated discs did not occur as a result of lifting the tire.  Lifting the tire and then standing and feeling pain in the lower back  is consistent with muscle strain and/or spasm.  The history that the applicant gave the VA examiner of an episode of back pain in 1998 that occurred after pushing a car (axial load) is much more consistent with a mechanism that produced a herniated disc.  

6.  The fact that he had no symptoms of nerve compression during his muscle strain episode but later described some sort of radiculopathy symptoms to the VA examiner would support a recent injury.  Further, the fact that he passed the PT test, including sit-ups, in September 2001 either shortly before or, perhaps, after the MRI findings would support the probability that the herniated discs represented an old injury that was minimally symptomatic if at all or that the herniated discs occurred after the PT test and not while on active service.

7.  The PRARNG advisory opinion notwithstanding, it has now been over 10 years since the applicant was separated.  The documents provided do not reconstruct the thought process in 2002 and do not show that an injustice occurred.  Further, it is noted that this process started essentially when he presented himself as "fit" in 2002.

8.  In view of the foregoing, there is insufficient evidence to grant him the 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)                                         AR20110023167



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ABCMR Record of Proceedings (cont)                                         AR20110023167



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