IN THE CASE OF: 

		BOARD DATE:	    20 December 2012

		DOCKET NUMBER:  AR20120003529 


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 referral to the Army Physical Disability Evaluation System (PDES) for processing.

2.  The applicant states:

	a.  The Puerto Rico Army National Guard (PRARNG) wrongfully separated him from the service and failed to ensure he was properly counseled and advised of his right to elect referral to the PDES for conditions wherein he was found unfit for continuance on active duty.

	b.  His chain of command failed to complete a line of duty investigation.

	c.  He was directed to report before a Fit For Duty Determination Board (FFDDB) on 13 June 2006, at which time he was assigned a physical profile rating of "4" in the rating under the "P" (physical capacity or stamina) factor and recommended for separation.

	d.  His separation orders confirm he was likewise separated on 13 June 2006, the same date of his FFDDB.

	e.  He was evaluated by the PDES while on active duty, determined fit for duty, and would now like to be afforded the same opportunity for conditions shown in the evidence he provides.


3.  The applicant provides:

* FFDDB Acknowledgement Statement
* DA Form 7349 (Initial Medical Review-Annual Medical Certificate)
* DA Form 3349 (Physical Profile)
* Standard Form (SF) 600 (Chronological Record of Medical Care)
* Memorandum, dated 3 March 2004
* Release from Active Duty (REFRAD) Order
* Active Duty Orders, dated 28 January 2004
* Attachment Orders, dated 18 December 2003
* Discharge and Amendment Orders, dated 11 October 2006
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* NGB Form 22 (National Guard Bureau Report of Separation and Record of Service)
* Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter)
* ARNG Retirement Points History Statement

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 military record shows he initially enlisted in the PRARNG on 5 May 1974 and intermittently during the following periods:

* 5 May 1974 – 4 May 1980
* 12 September 1981 – 8 March 1982
* 29 March 1995 - 13 February 2003

3.  Headquarters, PRARNG, Orders Number 044-389, dated 20 February 2003, ordered the applicant to active duty in support of Operation Noble Eagle on 14 February 2003.  He held military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).

4.  On 3 March 2004, the Chief, Operations Division, U.S. Army Physical Disability Agency, issued a memorandum which shows a Physical Evaluation Board (PEB), at Walter Reed Army Medical Center, Washington, DC, found the applicant physically fit to perform the duties of his office, grade, rank and MOS and deployable within the limitations of his profile on 9 February 2004.  This document does not indicate and the applicant's Army Military Human Resource Record (AMHRR) does not identify the condition(s) evaluated by the PEB.

5.  On 9 June 2004, the applicant was honorably REFRAD by reason of completion of required active service and transferred to his PRARNG unit.  The DD Form 214 issued at that time shows he completed 1 year, 3 months, and 26 days of creditable active duty service.

6.  A DA Form 7349, dated 13 June 2006, shows the applicant was diagnosed with "Diabetes Mellitus Type II" and "Gastro esophageal Reflux Disease."  A DA Form 3349, dated 13 June 2006, shows was assigned a "4" rating under the "P" factor of his PULHES:  P - physical capacity or stamina; U - upper extremities; L - lower extremities; H - hearing and ears; E - eyes; and S - psychiatric, based on his "diabetes mellitus type II" and recommended for separation from military service.

7.  A PRARNG, FFDDB Acknowledgment Statement shows the applicant acknowledged he was given a copy of his DA Form 3349 and provided the various non-duty options from which to select as it relates to an Early Reserve Retirement.  On 13 June 2006, he elected Option C (Request Transfer to Retired Reserve with early qualification of eligibility to receive retired pay at age 60 if completed 15 but less than 20 years of qualifying service).  

8.  PRARNG Orders Number 284-546 dated 11 October 2006, directed the applicant's discharge from the PRARNG and assignment to the Retired Reserve on 13 June 2006, under the provisions of National Guard Regulation 600-200, paragraph 8-36o.  These orders were amended by PRARNG Orders Number 284-551, dated 11 October 2006 to show paragraph 8-35i(8), National Guard Regulation 600-200 as the authority for the applicant's discharge.

9.  On 13 June 2006, the applicant was honorably discharged from the PRARNG. The NGB Form 22 shows he was discharged under the provisions of National Guard Regulation 600-200, paragraph 8-36i(8) by reason of "medically unfit."  It also shows he completed 17 years, 8 months, and 12 days of creditable military service.

10.  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 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 for training.

11.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that Reserve Component (RC) Soldiers with a non-duty related medical condition that 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 was designed to give the Soldier with a non-duty related 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.

12.  National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of the ARNG Soldiers.  Chapter 8 provides for separation of ARNG Soldiers.  Paragraph 8-35i(8) states separation is warranted if the Soldier is medically unfit for retention per Army Regulation 40-501.  Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination.  If the Soldier refuses to report as directed the commander may proceed with administrative separation action under paragraph 8-36u.  Commanders who do not recommend retention will request the Soldier’s discharge.  When the medical condition was incurred in line of duty, the procedures of another regulation will apply.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the PRARNG wrongfully separated him without affording him evaluation through the PDES.  He also indicates and the evidence of record confirms, he was processed through the PDES during an earlier period of active duty service and determined to be fit for duty.  However, the medical condition for which he was determined to be fit during this period of service is unknown.

2.  The evidence of record fails to show the applicant suffered from a medically unfitting condition that would have warranted his processing through the PDES.  It does confirm he was diagnosed with the non-duty condition of "diabetes mellitus type II; assigned a "P4" profile; and recommended for separation by the profiling officer.  There is no evidence showing he incurred this condition while entitled to basic pay.

3.  By regulation, Soldiers with a non-duty related medical condition that are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB solely for a determination of fitness but not for a determination of eligibility for disability benefits.  The evidence confirms the applicant was given this opportunity and declined.  At his request, the applicant was transferred to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 if completed 15 but less than 20 years of qualifying service.  Accordingly, there is no basis upon which to grant 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)                                         AR20120003529





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ABCMR Record of Proceedings (cont)                                         AR20120003529



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