IN THE CASE OF:	  

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20110024964 


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

2.  The applicant states he was discharged from the Puerto Rico Army National Guard (PRARNG) and transferred to the Retired Reserve because of a permanent profile by a Fitness For Duty Determination Board (FFDDB).  He was not given the opportunity to be processed under the PDES for the purpose of establishing disability benefits.  The evidence shows he was diagnosed and treated for a right ear perforation with a recommendation for a mastoidectomy (surgery to remove cells in the hollow air-filled spaces in the skull behind the ear) while on active duty orders.

3.  The applicant provides:

* his orders to active duty
* service medical records from November 2002 to January 2003
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 8 February 2003
* a copy of his FFDDB results, dated 15 August 2004
* two DA Forms 3349 (Physical Profile), dated 15 August 2004 and            23 January 2005
* a memorandum, dated 31 August 2004, from the Deputy Chief of Staff for Personnel (DCSPER) of the PRARNG
* a copy of his FFDDB results, dated 23 January 2005
* his NGB Form 22 (National Guard Bureau, Report of Separation and Record of Service)
* Department of Veterans Affairs (VA) medical 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.  He enlisted in the PRARNG on 26 December 1989.  He previously completed 
10 years, 5 months, and 7 days of active service in the Regular Army.

3.  On 3 October 2000, he was issued his 20-year letter, which notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

4.  He was ordered to report for active duty effective 12 September 2002, in support of Contingency Operation Desert Spring.

5.  Service medical records, dated between 13 November 2002 and 17 January 2003, show he was treated for a right ear condition.  He reported that he had had ear problems for several years and had pressure equalization (PE) tubes as a child.  

	a.  A consultation, dated 18 December 2002, from the Specialized Medical Center Hospital, Riyadh, Kingdom of Saudi Arabia stated he had right chronic otomastoiditis (infection and inflammation of ear and mastoid process) with tympanic membrane perforation (ruptured ear drum) and granulation tissue of his right ear.

	b.  On 13 January 2003, Dr M____w recommended orders for additional medical evaluation for a mastoidectomy. 

	c.  On 16 January 2003, Dr. B____e recommended a Computed Axial Tomography (CAT) Scan of the inner ear and middle ear to rule out a cholesteatoma (type of skin cyst located in the middle ear).  If there is a cholesteatoma he needs a mastoidectomy.  If there is no cholesteatoma he still needs an exploration to get rid of that last little bit of granulation tissue, rebuild the eardrum and put an ossiculoplasty (a surgical procedure designed to repair damaged bones of hearing with carefully designed artificial bones) to try to restore some of his hearing.   

	d.  There is no evidence in the service medical records which he provided that shows he was not fit for duty.

6.  On 13 January 2003 at the demobilization station at Fort McCoy, WI, the applicant complained of shortness of breath (dyspnea) with exertion)  He was evaluated by CT of the chest.  A cause for his exertional dyspnea was not found.

7.  On 8 February 2003, he was released from active duty and returned to his unit.  He completed 4 months and 27 days of active service that was characterized as honorable.

8.  He received a non-commissioned officer evaluation report (NCOER) for the periods:

* August 2002 to July 2003
* August 2003 to July 2004

9.  Both NCOER's rated him excellent in all categories in Part IV (Values/NCO Responsibilities).  He was rated among the best in overall potential for promotion and/or service in positions of greater responsibility.  His senior rater rated him successful in overall performance and superior in overall potential for promotion and/or service in positions of greater responsibility.

10.  On 14 July 2003, he received a right tympanomastoidectomy (a surgical procedure to remove growth or infected bone from the inside of the ear) at the VA Medical Center (VAMC), San Juan, Puerto Rico.

11.  On 15 August 2004, an FFDDB was convened at Camp Santiago Training Site, Salina, Puerto Rico.  The FFDDB determined he was given a temporary 3, E3 profile for the right ear and cholestone (a supplement established to normalize the level of cholesterol and other lipids in the blood), high blood pressure, heavy dyspnea on treatment, and vertigo.  His temporary profile was to expire on 15 November 2004.  He acknowledged the finding and recommendation of the FFDDB on 15 August 2004.
12.  A memorandum, dated 31 August 2004, from the DCSPER of the PRARNG stated he was fit for retention in the PRARNG.

13.  On 23 January 2005, a second FFDDB was convened by Headquarters, State Area Command, San Juan Puerto Rico.  The FFDDB determined he was given a permanent profile P4, H4 for vertigo, ear surgery, and shortness of breath.  The FFDDB determined that he should be discharged, effective
24 January 2005, due to his medical condition.  He acknowledged the finding and recommendation of the FFDDB on 23 January 2005.

14.  On 24 January 2005, he was discharged from the PRARNG and transferred to the Retired Reserve.

15.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  

	a.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and 
S-psychiatric.  

		(1)  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

		(2)  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

		(3)  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

	b.  To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary).  The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

	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 due to in line of duty (LOD) injuries or illnesses will be processed in accordance with Army Regulation 40–400 and Army Regulation 635-40.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  

	a.  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.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.  

17.  National Guard Regulation 600-200 (Enlisted Personnel Management) governs the policies and procedures for assigning, attaching, removing, and 
transferring enlisted Soldiers of the ARNG/ARNGUS.  Chapter 8, of the regulation in effect at the time, provided for the discharge of Soldiers deemed medically unfit for retention per Army Regulation 40-501 and National Guard Regulation 40-501.

18.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

19.  Information obtained from the website www.mdconsult.com indicates cholesteatoma has been suggested to occur trough any of several processes, including insertion of ventilation tubes (PE tubes) into the eardrum.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has submitted no evidence to show his right ear condition was aggravated by military service.  

2.  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.  Surgery on his right ear was performed on 14 July 2003, which was 5 months after he was released from active duty.  An FFDDB found him fit for duty, with limitations, on 15 August 2004, over a year after his surgery.  His NCOERs show he was able to perform the duties of his office, grade, and rank.  

3.  He was given a permanent 411411 permanent profile, but it appears to have been poorly written.  The profile was given for “vertigo, ear surgery, shortness of breath.”  None of those three entities represents a diagnosis.  Two are symptoms and one (ear surgery) is a historical statement that says nothing about his physical condition.  

4.  He reported he had ear problems for several years and he had PE tubes as a child.  His symptoms started prior to service.  The cholesteatoma was confined to his middle ear and the mastoid bone and it did not extend into the inner ear and would have had no known connection to any symptoms of vertigo.  Without a nexus between his condition in January 2005 and his treatment in 2002 and 2003 there is insufficient evidence to grant his request.  

5.  At the time he underwent his second FFDDB medical personnel properly determined that his medical condition did not warrant consideration under the PDES and/or referral to an MEB/PEB.  Therefore, it appears that he was properly discharged and transferred to the Retired Reserve under administrative procedures in accordance with the applicable regulations.
6.  Disabilities which worsen after a Soldier is separated are treated by and compensated for by the VA.  Any claims or issues concerning treatment or compensation for service connected disabilities should be addressed to that Agency.  

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)                                         AR20110024964



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ABCMR Record of Proceedings (cont)                                         AR20110024964



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