IN THE CASE OF:	 

		BOARD DATE:	  28 August 2012 

		DOCKET NUMBER:  AR20120002606 


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 correction of the Military Occupational Specialty (MOS)/Medical Retention Board's (MMRB) recommendation, dated 5 October 2008, to show "refer to the Physical Disability Evaluation System (PDES)" instead of "discharge."

2.  The applicant states:

* He received an approved line of duty (LOD) determination for lower back spasm on 3 February 2004
* This was the same condition for which he received a permanent physical profile on 5 June 2008
* The physical profile states "Arthritis and Nerve Root Pressure in Back"
* The supporting medical documentation shows his LOD was related to ongoing back problems
* In accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), he should have been referred to the PDES and considered for disability and subsequent medical retirement

3.  The applicant provides:

* Approved MMRB Proceedings
* Medical disqualification memorandum
* Summary of MMRB Proceedings
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Retired Reserve orders
* Multiple DA Forms 3349 (Physical Profile)
* DA Form 4254 (Request for Private Medical Information)
* DA Form 2173 (Statement of Medical Examination and Duty Status) 
* LOD Checklist/Coversheet, allied documents, and approval memorandum
* Various civilian and military records dated between 1994 and 2008

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 records show he was born on 28 January 1953.  Having had prior service in the Regular Army, he enlisted in the Utah Army National Guard (UTARNG) on 20 February 1988.  

3.  He served in a variety of assignments in MOS 31U (Signal Support Systems Specialist) (now MOS 25U) and he attained the rank/grade of sergeant first class (SFC)/E-7.

4.  His entire military medical record is not available for review with this case.  However, he submitted selected military and civilian medical documents as follows: 

	a.  DD Form 2697 (Report of Medical Assessment), dated 11 November 2001, wherein he stated that he was experiencing foot pain which began while on active duty but the pain was" improving since out of boots."  He related that he was experiencing right knee pain which began while on active duty and that the pain was worsening with activities.  He was also experiencing left shoulder pain which began prior to coming on active duty. 

	b.  DA Form 7349-R (Initial Medical Review - Annual Medical Certificate), dated 21 July 2001, wherein he stated he strained his back.  The physician indicated the applicant was "Fit." 
	c.  Standard Form (SF) 93 (Report of Medical History) and SF 88 (Report of Medical Examination), both dated 2 November 2001.  The applicant indicated he had shoulder pain and foot pain.  The military medical doctor noted his pain and recommended further evaluation, but otherwise found him medically qualified for service.  

	d.  DA Form 2173, dated 19 December 2003, which shows on 17 December 2003, he was lifting a box and when he stood up, he had terrible back spasms.  He was taken to Jordan Valley Hospital, UT, where he underwent treatment and was assigned to quarters for 48 hours.  He was then referred to the unit medic and assigned modified/light duties.  His injury was determined in-LOD by the UTARNG.

	e.  DA Form 3349, dated 17 December 2003, for back spasm.  This form shows he was assigned to quarters until 20 December 2003. 

	f.  SF 600 (Chronological Record of Medical Care), dated 20 December 2003, which shows he returned for a check-up and complained that his "back still hurt." He was able to sleep with straight legs and roll-over but he experienced pain when leaning over.  

	g.  SF 600, dated 22 December 2003, which shows he returned for a check-up and his condition, including flexion and extension, had improved.  He was returned to light duty.

	h.  SF 600, dated 31 December 2003, which shows the entry "back problems, and limitations or pain; no muscle spasm noted" and "relooked lower back spasm, full duty; discussed body mechanics and proper lifting."

	i.  DD Form 2807 (Report of Medical History) and DD Form 2808 (Report of Medical Examination), dated 22 January 2005, which shows he underwent a retention medical examination.  He indicated that he had back problems during annual training during the previous year.  The military doctor noted he had high cholesterol but found him medically fit.

	j.  Selected civilian medical documents, ranging between October 2000 and October 2011, which show intermittent low back pain, no trauma, mechanic back pain, highlighted in yellow.

	k.  DA Form 3349 (injury), dated 5 May 2007, shows he had a temporary profile through 5 August 2007, for two bulging discs and a torn ligament in the lower back.

	l.  DA Form 3349 (injury), dated 2 June 2008, permanent profile, for arthritis and nerve root pressure in the back.  The profile is signed by the profiling officer but not approved by the approving authority.

   m.  His official records contain a DA Form 3349 (injury), dated 5 June 2008, by the profiling officer and 10 August 2008 by the approving authority.  The profile is permanent, for arthritis and nerve root pressure in the back.

5.  Between March 2002 and September 2008, he received multiple DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) for his duties as a signal support systems chief, S-6 NCO in charge, or communications section chief, while assigned to 2nd Battalion, 211th Aviation.  These reports show he:

* Was rated mostly excellent and among the best by his raters
* Was rated successful or superior by his senior raters
* Passed most of his Army Physical Fitness Tests and met height and weight standards
* Was on a physical profile from March through September 2002 and from October 2006 through September 2008; but the profile did not affect his duty performance
* His duty proficiency and MOS competency were rated successful 

6.  On 5 October 2008, he appeared before the UTARNG MMRB, in accordance with Army Regulation 600-60 (Physical Performance Evaluation System (PPES)). The MMRB Proceedings show the medical board considered all records, reports, and other pertinent information.  After carefully considering the evidence, the MMRB found/recommended:

* The applicant was not performing his duties
* He suffered from arthritis and nerve root pressure in the lower back
* His medical condition precluded performance of his duties in a worldwide field environment
* His chain of command recommended separation
* medical separation from the UTARNG

7.  On 5 October 2008, by memorandum, the MMRB President notified the applicant through his chain of command of the findings and recommendations.  The applicant was provided a timeframe to submit a rebuttal to the findings and recommendations.  However, it is unclear if he did so.



8.  The Adjutant General, UTARNG, approved the findings and recommendations of the MMRB and ordered the applicant discharged on 4 November 2008. 

9.  On 4 November 2008, the UTARNG published Orders 309-025 discharging the applicant from the ARNG and transferring him to the Retired Reserve effective 4 November 2008.  His NGB Form 22 shows he completed 28 years, 
10 months, and 21 days of total service for pay.

10.  Army Regulation 600-60 requires Active Army, Army National Guard of the United States, and U.S. Army Reserve Soldiers with a permanent profile containing a 3 or 4 in one of the profile serial factors to be evaluated by an administrative screening board designated as the MMRB.  This evaluation is to determine if Soldiers can perform satisfactorily in their primary occupational specialty or specialty code in a worldwide field environment. This regulation gives the duties and procedures of the MMRB.  It also gives the procedures for processing the decision of the MMRB convening authority to recommend a Soldier for medical reclassification or to refer the Soldier into the PDES or the Reserve Component (RC) medical disqualification process, as applicable.  Soldiers will appear before an MMRB within 60 days from the date the DA Form 3349 is signed by the appropriate approving authority.

11.  The PPES is a program designed to evaluate Soldiers with a permanent numerical designator of 3 or 4 (hereafter referred to as a permanent 3 or 
4 profile) in one of the profile serial factors based on their physical ability to perform their duties in a worldwide field or austere environment and recorded on DA Form 3349.  The PPES establishes the MMRB as an administrative screening board to make this evaluation. This screening system ensures continuity of effort among commanders, doctors, personnel managers, and the PDES.  It provides the MMRB convening authority with increased flexibility to determine a Soldier’s deployability, reclassification potential, or referral into the PDES (or processing for medical disqualification as applicable to certain RC cases).

12.  The MMRB evaluation process will not be used as a quality assessment of leadership, degree of technical skill, or promotion potential.  The MMRB recommendations will only be based on an enlisted Soldier’s physical ability to reasonably perform the duties of his or her primary MOS or of an officer’s physical ability to perform in his or her branch or area of concentration or functional area.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply 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.  It provides for medical evaluation boards (MEB), which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).  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 635-40 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also states in:

	a.  Paragraph 2-2b(1) that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty (until he is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to a PEB unless his physical defects raise substantial doubt that he is fit to continue to perform the duties of his office, grade, rank, or rating.

	b.  Paragraph 2-2b(2) that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that:

		(1)  the member, in fact, was physically unable to adequately perform the duties of his office, grade, rank, or rating even though he was improperly retained in that office, grade, rank, or rating for a period of time.

		(2)  acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him unfit for further duty.


15.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that RC Soldiers with nonduty-related (NDR) 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.  The process is designed to give the Soldier with NDR impairment the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits.

16.  Army Regulation 40-501 explains the PULHES.  To determine medical standards for different jobs, and to make sure that Soldiers are medically qualified to perform the duties of that job, the Army has developed a medical profile indicator, known as the physical profile serial system.  The physical profile serial system is based primarily upon the function of body systems and their relation to military duties. The functions of the various organs, systems, and integral parts of the body are considered.  In developing the system, the functions have been considered under six factors designated "P–U–L–H–E–S."

17.  Department of Defense Instruction 1332.38, definition E-2.1.20, defines NDR impairments as "impairment of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation.  Members with NDR impairments are eligible to be referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits.  The determination of whether a case is forwarded to the PEB as an NDR case (as opposed to a duty-related case) rests with the RC."

DISCUSSION AND CONCLUSIONS:

1.  The applicant was injured on 17 December 2003 while lifting a box and suffered from back spasms.  While this injury was in fact in-LOD, he continued to perform his duties over the next few years with no limitations.  In other words, this injury did not warrant entry into the PDES. 

2.  In 2008, some 5 years later, he was evaluated for his ability to perform his duties in his MOS.  The command surgeon determined after reviewing the applicant's medical records that he suffered from arthritis and nerve root pressure in the lower back.  Accordingly, he was referred to an MMRB.  However, there is no evidence his arthritis and nerve root pressure was connected to his back spasms 5 years earlier.

3.  The MMRB is an administrative screening board charged with the responsibility to evaluate a Soldier's ability or inability to physically perform duties required of his/her MOS in a worldwide field environment.  The MMRB is not part of the PDES but it feeds into the system.  It appears the applicant has confused the requirements to appear before an MMRB (Army Regulation 600-60) with MEB proceedings (Army Regulation 635-40).

4.  The MMRB did not recommend referral to the PDES; rather, it recommended that he be medically discharged from the USAR.  He was informed of this decision and he was given an opportunity to submit a rebuttal but there is no evidence he did so. 

5.  The purpose of the MEB is to evaluate the Soldier's medical condition(s) as diagnosed during a medical examination to determine if they do or do not meet the medical retention standards of Army Regulation 40-501, document a Soldier’s medical status and duty limitations, and refer Soldiers to a PEB.

6.  But even if he had been recommended by the MMRB for referral to an MEB and a subsequent PEB, when a member of the RC has medical issues that are neither incurred nor aggravated while the member was performing duty that renders the member unfit for retention, they have four options: an honorable discharge; transfer to the Retired Reserve, if eligible; or consideration by an NDR PEB.  Members with NDR impairments are eligible to be referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits.  The determination of whether a case is forwarded to the PEB as an NDR case (as opposed to a duty-related case) rests with the RC.

7.  There is a difference between a duty-related impairment and a non-duty related impairment.  A duty-related impairment could result in consideration by a PEB for the purpose of assigning disability compensation.  However, 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. 

8.  Here, the applicant's 2008 physical profile was delivered to the unit.  The profiling officer made a recommendation to the command surgeon.  That triggered a determination of fitness evaluation by the appropriate Regional Command and subsequent MMRB.  In order for the applicant to have received any compensation in the form of medical retirement or severance pay he would had to show that any conditions that were deemed by the MMRB to have prevented him from performing his MOS were incurred while entitled to basic pay or that they were aggravated by active service.  

9.  In view of the foregoing, the applicant is not entitled to 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)                                         AR20120002606



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ABCMR Record of Proceedings (cont)                                         AR20120002606



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