IN THE CASE OF:	  

		BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20120000012 


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 that he be afforded due process, in effect, the opportunity to undergo separation process under the physical disability evaluation system (PDES).  

2.  The applicant states the Puerto Rico Army National Guard (PRARNG) discharged him through a "Fit For Duty Determination Board (FFDDB)" which denied him due process.  He was not allowed the opportunity to go through the PDES in accordance with Army Regulation 600-60 (Physical Performance Evaluation System).  The conditions that rendered him unfit for retention in the PRARNG were aggravated while he was serving on active duty from October 2001 through April 2002. 

3.  The applicant provides:

* Letter from the PRARNG G-1
* Orders 7-33 (discharging him from the ARNG)
* FFDDB Acknowledgement letter
* DA Forms 3349 (Physical Profile)
* Physical Profile Board Acknowledgement Statement
* Annual Medical Certification
* Chronological Record of Medical Care
* Department of Veterans Affairs (VA) Progress Notes
* Orders 054-104 (mobilization orders) and amendments
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 5 January 2001 and 20 August 1984
* Various medical progress/medical screening notes

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 service records including his personnel and medical records are not available for review with this case.  An exhaustive search was undertaken to locate his complete military records.  Unfortunately, they could not be found.  However, the applicant submitted sufficient documents for the Board to conduct a fair and impartial review of this case.

3.  The applicant's available records show he was born on 3 October 1961 and initially enlisted in the Regular Army on 21 August 1980.  On 20 August 1984, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.

4.  He enlisted in the PRARNG on 17 July 1989 and served in military occupational specialty 19D (Cavalry Scout).  He was honorably released from the ARNG on 1 May 1992 and transferred to the USAR Control Group (Reinforcement).

5.  He again enlisted in the PRARNG on 20 October 1993 and served through multiple extensions or reenlistments.  He attained the rank/grade of specialist (SPC)/E-4. 

6.  He was ordered to active duty on 4 May 2000 and subsequently served in Bosnia/Macedonia/Kosovo from 28 May to 9 December 2000.  He was honorably released from active duty to the control of his State on 5 January 2001.

7.  On 14 March 2004, the applicant was issued a temporary physical profile for chronic lumbar disc disease to expire on 14 June 2004. 
8.  On 22 December 2004, the PRARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (15-year letter).  This letter notified him that he had completed at least 15 but less than 20 years of qualifying service for retired pay at age 60, due to his medical disqualification, and that he had requested transfer to the Retired Reserve.

9.  On 12 January 2005, the PRARNG published Orders 7-33 honorably discharging him from the ARNG and transferring him to the Retired Reserve effective 30 September 2004.  The authority for discharge is shown as paragraph 8-26j(1), National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), medically unfit for retention. 

10.  His NGB Form 22 (Report of Separation and Record of Service) is not available for review with this case.  However, his NGB 23B (ARNG Retirement Points History Statement) shows he completed 16 qualifying years of service for non-regular retirement.  

11.  The facts and circumstances of the applicant's injury or illness are not available nor is there evidence of what occurred.  There is no evidence that he was issued a permanent physical profile, or evidence that he underwent an MOS Medical Retention Board (MMRB), or he was referred for entry into the PDES.  There are no medical documents or correspondence available relating his disposition at the time.  He provides the following documents:

	a.  Multiple chronological records of medical care, dated on various dates in 1981, which show he was injured while rapelling from a helicopter.  An examination shows superficial skin burns.

	b.  PRARNG FFDDB Acknowledgement Statement, dated 15 August 2004, which shows he was informed he had received a temporary physical profile and he would be discharged on 15 August 2004.  He acknowledged receipt of this statement. 

	c.  DA Form 3349, dated 15 August 2004, listing a medical condition of L5 radiculopathy.  

	d.  PAARNG Physical Profile Board, dated 14 March 2004, informing him that he had received a temporary profile and that he would be allowed to attend drills and unit training. 

	e.  Multiple Annual Medical Certification forms listing his medications as well as his low back pain.  

	f.  DA Form 3349, dated 14 March 2004, listing a condition related to chronic lumbar disc disease.

	g.  Chronological record of medical care, undated, listing low back pain (degenerative lumbar disc disease).

	h.  VA progress notes, dated in September 2002, listing a diagnosis of mechanical low back pain.  

12.  He also submitted a memorandum from the PRARNG G-1 who opines that the applicant's request should be approved.  The PRARNG G-1 adds that:

	a.  The applicant was injured during active service performed between August 1980 and August 1984.  This condition was the primary reason he was later found unfit for retention in the ARNG in 2004.  He was also ordered to active duty in 2001 and his condition was most likely aggravated during this period of service.  Additionally, the applicant's chain of command and PRARNG failed to properly refer his case to the PDES.  

	b.  The applicant was not properly counseled in relation to referral to a medical evaluation board (MEB) and physical evaluation board (PEB) for the purpose of disability benefits.  It was his commander's responsibility to ensure proper counseling and advising him of his rights prior to the medical recommendation that led to the FFDDB.  Finally, the applicant was issued a physical profile pertaining to the L4 and this profile was not properly approved. 

	c.  In summary, the official stated that based on his experience, the applicant's case does not appear to have been handled properly.  He should have been referred to an MEB based on the fact that his injury occurred while on active duty.  The official opined that the request should be adjudicated by the proper authority (the ABCMR), not the NGB or the PRARNG.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a 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 was the proximate cause of performing active duty or inactive duty training.

14.   Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities.  Paragraph 9-12 states that Reserve Component Soldiers with 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.

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

16.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with the lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was medically separated from the PRARNG in 2004 and placed on the retired list.  He contends that he was denied due process and that his disqualifying condition was aggravated while he was serving in an active duty status. 

2.  The applicant does not provide his FFDDB findings.  This notification letter to the Soldier routinely asks the Soldier for line of duty evidence regarding his disqualifying medical condition.  In the absence of such evidence, the Soldier is informed that he may request a non-duty related PEB (NDR PEB) or, if he has the requisite number of qualifying years of service, he may elect to be placed in the retired Reserve.  Placement on the retired reserve list is not a default position and must be elected by the Soldier. 

3.  The PRARNG statement that "there is no evidence that Soldier was properly counseled … " is unclear.  Since the applicant was transferred to the Retired Reserve, it is apparent that he was notified of his disqualifying condition, did not submit documents to show that his malady was incurred in line of duty, did not elect to undergo an NDR PEB (to argue that he was fit), and in effect elected to be placed on the retired Reserve list.  It is unclear whether the PRARNG is stating that they cannot document that the applicant was properly counseled, or if they are stating that the notification system represents inadequate counseling.
4.  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.  The available records show the applicant was injured rapelling from a helicopter in 1981.  Examination showed only superficial skin burns.  There is a diagnosis of a "contusion" on 6 August 2001 and on follow-up for back pain the next day.  He was noted to have an abrasion on the posterior trunk in the thoracic area.  There were no lumbar complaints or findings mentioned.  There is no medical documentation to show a back injury in 1981 nor any medical documentation from the 20 year interval during the applicant’s activation in 2001. There are no medical records for the period of activation between 2001 and 2002.  The applicant did apparently complain of back pain sometime around the time of his release from active service as is evident from a medical document, dated May 2002 which showed no herniated disc.  

6.  There are several VA progress notes from July through September 2002.  A VA clinic note dated September 2002 shows a diagnosis of mechanical low back pain.  An undated medical note rendered a diagnosis of degenerative lumbar disc disease.  This diagnosis is compatible with bulging discs.  It is a chronic disease that worsens with age.  

7.  The applicant provides two medical notes from 1981 showing the applicant had rope burns across his upper back (in addition to other places).  They do not show that he sustained a back injury in 1981 or that he had back problems during the next 20 years.  He does not show that he had any back problems while activated.  He does provide evidence that shows he has a chronic condition secondary to degenerating discs for which he was found to be medically disqualified in 2004.  The applicant elected to be placed in the Retired Reserve in 2004.

8.  There is no evidence to support his contention that between 2001 and 2002 he permanently aggravated an injury sustained in 1981.  There is no evidence that his disqualifying condition was sustained in line of duty or that it was a non-duty related condition that was permanently service aggravated.  

9.  It is likely that he had degenerating discs when he was activated in 2001, but even if he provided evidence that his back worsened while on active duty, a worsening of symptoms (and X-ray findings) is the nature of this disease and would not be attributable to permanent service aggravation without a specific documented injury while activated and a documented change in X-ray findings as a result of such injury.

10.  It has now been over 8 years since the applicant was separated.  An arbitrary ruling in his favor, without knowing what his records would have shown, would cause prejudice to the Government.  The doctrine of laches is invoked in his case.  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)                                         AR20120000012



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000012



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1