BOARD DATE:	  4 December 2012

		DOCKET NUMBER:  AR20110023388 


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, reinstatement in the Army National Guard (ARNG) of the United States (ARNGUS) and Puerto Rico ARNG (PRARNG) and referral to a medical evaluation board (MEB)/physical evaluation board (PEB) for a disability rating determination due to a service-connected injury.

2.  The applicant states he was not given the opportunity to be processed through the Physical Disability Evaluation System (PDES) for the purpose of establishing the proper basis for his separation.

	a.  He states he served on active duty in the U.S. Marine Corps (USMC) from 1984 to 1992.  He injured his back during this period of service, a line-of-duty (LOD) investigation was conducted, and his injury was determined to be in the LOD.

	b.  He entered the ARNGUS and PRARNG on 26 February 1993.

	c.  The Department of Veterans Affairs (VA) granted him service-connection for lumbosacral strain with a 20-percent disability rating effective 29 November 1996.

	d.  On 13 April 2003, he was issued a permanent physical profile of "4" in his lower extremities and a Fit-for-Duty Determination Board declared him unfit for retention.  He was discharged on 1 July 2003 and transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) without being referred to the PDES for evaluation by an MEB/PEB.

3.  The applicant provides a copy of his request for review of discharge that he submitted to the PRARNG and his previous requests to the Army Board for Correction of Military Records (ABCMR) which included documents from his medical treatment records and the VA.

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 DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he enlisted in the USMC on 11 November 1984 and he was honorably discharged on 11 April 1992 based on expiration of his term of enlistment.

	a.  He completed 7 years, 5 months, and 1 day of net active service during this period; 3 years, 9 months, and 27 days of total prior active service; and 5 months and 2 days of total prior inactive service.

	b.  It also shows he was awarded primary specialty 1341 (Engineer Equipment Mechanic) and he held the rank of sergeant/E-5.

3.  He had a break in service from 12 April 1992 through 25 February 1993.

4.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant enlisted in the ARNGUS and PRARNG on 26 February 1993; he was honorably discharged on 1 July 2003 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), due to being medically unfit for retention; and he was transferred to the USAR Control Group (Retired Reserve).

	a.  He completed 10 years, 4 months, and 6 days of net service during this period; 5 months and 2 days of prior Reserve Component service; 11 years, 2 months, and 28 days of prior active Federal service; and 22 years and 6 days of total service for pay.

	b.  It also shows he was awarded military occupational specialty 62B (Construction Equipment Repairer) and he held the rank of sergeant/E-5.

	c.  The applicant was not available to sign the NGB Form 22.  He was notified by mail that his discharge and the NGB Form 22 would be available to him upon request.

5.  On 13 August 2009, the applicant submitted an application to the ABMCR requesting reinstatement in the ARNGUS and PRARNG and referral to an MEB/PEB for a disability rating determination due to a service-connected injury.

	a.  In support of his application he provided:

		(1)  a letter to the PRARNG, dated 6 August 2009, requesting review of his discharge based on the fact that he was not referred to an MEB/PEB for evaluation of his medical condition; and

		(2)  National Guard Regulation 40-501 (Annual Medical Certification), a DA Form 3349 (Physical Profile), and a Standard Form 600 (Chronological Record of Medical Care), all dated 13 April 2003, that show he was diagnosed with lumbar herniated nucleus pulposus symptomatic with chronic/recurrent lower back pain, he was issued a permanent physical profile of "4" in his lower extremities, and the examining physician recommended his separation from the service.

	b.  On 15 March 2010, an advisory opinion from the Chief, Personnel Division, NGB, was obtained which indicated the applicant should resubmit his request upon obtaining additional medical documentation.  On 19 March 2010, the advisory opinion was forwarded to the applicant; however, he failed to respond.

	c.  On 26 April 2010, an ABCMR representative informed the applicant that his application was being returned without action and he could resubmit his request to the Chief, NGB, after obtaining the requested medical documentation.

6.  On 9 June 2010, the applicant submitted a letter to the ABCMR requesting reconsideration of his case.  He provided the following documents:

	a.  Five Standard Forms 600 with dates of treatment highlighted by the applicant for 2 December 1982, 4 and 6 June 1984, 22 and 28 July 1986, and 19 July 1989; two DD Forms 689 (Individual Sick Slip), dated 20 and 23 December 1990, and two Standard Forms 558 (Emergency Care and Treatment), dated 20 and 23 December 1990; that document the applicant's treatment for lower back pain during his service in the USMC;

	b. VA Regional Office, San Juan, PR, letter, dated 23 March 2010, that shows VA records certify the applicant is receiving monthly compensation benefits for service-connected disabilities that include lumbosacral strain rated at 20 percent effective 29 November 1996.

	c.  Email messages between the applicant and ARNG officials spanning the period 21 January 2010 to 7 June 2010 that show officials from the Health Service Support Branch, PRARNG, confirmed the applicant's chain of command failed to ensure he was properly counseled, he was not afforded the opportunity to accept referral to the PDES under the duty-related process, and he did not waive this referral in writing and request transfer to the Retired Reserve.  Instead, he was automatically separated and transferred to the Retired Reserve.  Officials of both the PRARNG and NGB recommended reconsideration of his case.

7.  On 11 May 2011, an ABCMR representative informed the applicant that his application was being returned without action and he could resubmit his request to the Chief, NGB.  He was also advised that he could resubmit his application to the ABCMR should his case not be resolved to his satisfaction by NGB.

8.  In support of his application, the applicant now provides letters from the PRARNG G-1, dated 14 November 2011, and PRARNG Senior Enlisted Leader, dated 15 November 2011, that show both officials concur with the applicant's reinstatement in the ARNGUS and PRARNG and referral to an MEB/PEB for a disability rating determination due to a service-connected injury.  The officials note that records show the applicant was injured while serving on active duty in the USMC, the condition was documented on the applicant's physical examination upon entry in the PRARNG, and it did not preclude his enlistment.  A Fit-for-Duty Board subsequently declared the applicant unfit for retention based on his medical condition incurred in the LOD.  However, the applicant was not processed through the PDES and he did not waive referral to the PDES.

9.  There is no evidence the applicant was referred to an MEB or PEB during the period of service under review.  There is also no evidence the applicant waived referral to the PDES or requested transfer to the Retired Reserve.

10.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.

	a.  The advisory official recommends administrative relief.

	b.  He states the PRARNG G-1 reviewed the applicant's case and the supporting documents.  The review shows the applicant's medical condition for which he was declared unfit for retention was incurred in the LOD while he was serving on active duty in the USMC.  In addition, this was documented in the applicant's records upon entry in the ARNGUS and during the fitness for duty evaluation in which he was recommended for separation.  Accordingly, an informal LOD should have been completed by the chain of command and the applicant should have been referred to the PDES under the duty-related process.  However, this was not accomplished.

	c.  The advisory official recommends:

		(1)  directing the Office of the Surgeon General (OTSG) to contact the applicant and:

* arrange a physical evaluation
* refer the applicant to an MEB and informal PEB if appropriate
* issue appropriate invitational travel orders to accomplish the above

		(2)  in the event a formal PEB becomes necessary, that OTSG should issue the appropriate invitational travel orders for the applicant to prepare for and participate in consideration of his case by a formal PEB; and

		(3)  should a determination be made that the applicant should have been separated under the PDES, that this ABCMR Record of Proceedings serves as the authority to void the applicant's 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.

11.  On 5 November 2012, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.  On 14 November 2010, the applicant concurred with the advisory opinion.

12.  National Guard Regulation 600-200, paragraph 8-26j(1) in effect at the time, shows the service of an ARNG enlisted Soldier should be terminated when the Soldier becomes medically disqualified for further military service.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

	a.  Chapter 3 (Policies), paragraph 3-4 (LOD Decisions), provides that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LOD criteria to be eligible to receive retirement and severance pay benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

		(2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

	b.  Chapter 4 (Procedures) provides:

		(1)  in paragraph 4-10 (The MEB) that MEB's 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 qualification for retention based on criteria in Army Regulation 40-501(Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

		(2)  in paragraph 4-12 (Informal Board) that each case is first considered by an informal PEB.  Informal procedures reduce the overall time required to process a case through the disability evaluation system.  An informal board must ensure that each case considered is complete and correct.  All evidence in the case file must be closely examined and additional evidence obtained, if required.  In addition, in all informal cases, the PEB Liaison Officer of the medical treatment facility having control of the Soldier will be the counselor for the Soldier.  As such, the PEB Liaison Officer is primarily concerned with the Soldier's interests.  The Soldier will be made fully aware of the election options available to him or her, the processing procedures, and the benefits to which he or she will be entitled if separated or retired for physical disability.

	c.  Chapter 8 (Reserve Component), paragraph 8-6 (Medical Processing), provides:

	d.  When a commander or other proper authority believes a Soldier not on extended active duty is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501 or National Guard Regulation 40-3 (Medical Care for Army National Guard Members).

	e.  Conduct of an MEB and referral of the case to a PEB will be according to the procedures of chapter 4 (Procedures), section III (Medical Processing Related to Disability Evaluation).  If the Soldier is not eligible for referral to a PEB, the Medical Treatment Facility will forward the MEB to the Soldier's unit commander for disposition under applicable regulations.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be referred to an MEB/PEB for a disability rating determination due to a service-connected injury he sustained while serving on active duty in the USMC because a Fit-for-Duty Board found him unfit for duty in the ARNGUS and PRARNG based on the medical condition.

2.  The evidence of record shows the applicant was injured while serving on active duty in the USMC, the condition was documented on the applicant's physical examination upon entry in the PRARNG and it did not preclude his enlistment, and a Fit-for-Duty Board subsequently declared the applicant unfit for retention based on his medical condition incurred in the LOD.  As a result, he was transferred to the USAR Control Group (Retired Reserve).  However, there is no evidence to show the applicant was processed through the PDES or that he waived referral to the PDES prior to his transfer.

3.  It is noted that the advisory opinion did not recommend the applicant be reinstated in the ARNG and the applicant concurred with the advisory opinion.  Therefore, considering the applicant has not participated in the ARNG in over     9 years, reinstatement in the ARNG is not warranted.

4.  In view of the foregoing, it would be appropriate to correct the applicant's records as recommended below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ___x_____  __x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  having OTSG:

* contact the applicant and arrange a physical evaluation
* refer the applicant to an MEB and informal PEB, if appropriate
* issue appropriate invitational travel orders to accomplish the above

	b.  having OTSG issue appropriate invitational travel orders for the applicant to prepare for and participate in consideration of his case by a formal PEB in the event a formal PEB becomes necessary; and

	c.  should a determination be made that the applicant should have been separated under the PDES, showing this ABCMR Record of Proceedings serves as the authority to void the applicant's 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.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reinstatement in the Army National Guard of the United States and Puerto Rico Army National Guard because, despite the outcome that may have occurred from his referral to the 


PDES, he was properly transferred to the USAR Control Group (Retired Reserve).




      ___________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)                                         AR20110023388



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ABCMR Record of Proceedings (cont)                                         AR20110023388



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