IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120005543 


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, correction of his military records to show he requested a medical evaluation board (MEB) with all rights, privileges, and benefits.  Furthermore, he requests, in effect, to appear before an MEB at this time.

2.  The applicant states he served in the Armed Forces of the United States from 4 October 1972 to 2 August 2010.  He entered in the rank of private/pay grade 
E-1 and ended his career as a lieutenant colonel/pay grade O-5.  He contends that he had four honorable discharges and one break in service in 1978 of about 6 days.

	a.  On or about 22 October 2003, he received an injury in the line of duty (LOD) at Fort Lewis, Washington, while serving on active duty in support of Operation Noble Eagle.

	b.  On or about 10 October 2009, he was notified that he did not meet retention standards and was given four options.  He chose an MEB and forwarded all of the appropriate paperwork by mail in a timely manner to the U.S. Army Reserve Personnel Center (ARPERCEN) (properly known as the U.S. Army Human Resources Command, St. Louis (HRC-STL) effective 2003).

	c.  The U.S. Army Reserve (USAR) failed to move forward in a timely manner to deliver his option.  He did not receive an MEB.

	d.  He wrote a follow-up letter to the Commander, ARPERCEN.  He failed to receive his requested option and was discharged on 2 August 2010.

	e.  Currently the Department of Veterans Affairs (VA) has awarded him service-connected disability compensation rated at 90 percent.

3.  The applicant provides a list of enclosures.  However, his list varies from the documents actually received.  The following documents were received with his application:

* memorandum, Headquarters, I Corps and Fort Lewis, dated 29 April 2002, subject:  Line of Duty Investigations DA Form 2173
* Accident Report Number DX45H6003, dated 21 October 2003
* emergency care and treatment record, dated 22 October 2003
* contested hearing subpoena, dated 3 February 2004
* memorandum, Personnel Officer, dated 15 March 2004, subject:  Line of Duty Investigation (Applicant)
* memorandum, Headquarters, I Corps and Fort Lewis, dated 19 March 2004, subject:  DA Form 2173 (Statement of Medical Examination and Duty Status) Pertaining to (Applicant)
* DA Form 2173, dated 31 March 2004
* memorandum, Western Regional Medical Command, dated 1 April 2004, subject:  Line of Duty Investigation (Applicant)
* Standard Form 513 (Medical Record – Consultation Sheet), dated 28 May 2009, 3 pages
* DA Form 3349 (Physical Profile), dated 19 August 2009, page 1 only
* memorandum, HRC-STL, dated 5 October 2009, subject:  Notification of Failure to Meet Medical Retention Standards of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (14 December 2007)
* letter from the applicant to HRC-STL, dated 31 October 2009, with a list of 31 enclosures, not attached
* memorandum, Headquarters, 99th Regional Support Command, dated 9 December 2009, subject:  Medical Determination for (Applicant)
* letter from the applicant to HRC-STL, dated 19 April 2010
* Orders D-08-013903, HRC-STL, dated 9 August 2010
* Honorable Discharge Certificate, dated 2 August 2010
* VA Rating Decision, dated 12 March 2009
* VA Service Connected Identification Card
* VA Rating Decision, dated 27 May 2009
* VA Rating Decision, dated 6 July 2010
* VA Rating Decision, dated 21 May 2011
* VA Rating Decision, dated 31 January 2012
* VA Rating Decision, dated 9 February 2012
* VA Rating decision, dated 28 February 2012
* VA Rating Decision, dated 1 March 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 6 June 1950.  On 20 March 2003, he was ordered to active duty as a member of the USAR in support of Operation Noble Eagle.  He was assigned to Fort Lewis, Washington, as a social work officer.

1.  A police accident report, dated 21 October 2003, states the applicant was involved in a motor vehicle accident on that date at 0730 hours.  His vehicle sustained damage to the front.  No injuries are mentioned.

2.  An emergency care and treatment record, dated 22 October 2003, states the applicant arrived at Madigan Army Medical Center at 0729 hours.  He complained of shoulder and arm pain due to a motor vehicle collision.  The applicant described the accident as a head-on collision at 25 miles per hour.  The applicant was diagnosed with cervical, right shoulder, and lumbar strains with intermittent burning pain.  He was prescribed pain medication, isometric neck and shoulder exercises, and stretching.

3.  On 15 March 2004, the Personnel Officer, Madigan Army Medical Center, stated in a memorandum that the applicant had been involved in a motor vehicle accident and sustained a shoulder and back injury that received medical treatment at the medical center.  The applicant was returned to duty.  The personnel officer further stated the applicant's company commander determined his injuries were in the LOD.  The personnel officer recommended that a formal LOD investigation not be required.

4.  A DA Form 2173, dated 31 March 2004, reports that the applicant had been involved in a head-on collision and sustained right shoulder injury and back pain.  No formal LOD investigation was required and the applicant's injury was considered to have been in the LOD.

5.  On 1 April 2004, the LOD investigation pertaining to the applicant's motor vehicle accident was approved as in the LOD.  No formal LOD investigation was required.

6.  On 19 September 2004, the applicant was released from active duty and transferred to the USAR Control Group (Individual Mobilization Augmentation).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time indicates he had served on active duty for a period of 1 year and 6 months.  He completed his required active service and had not served in an imminent danger pay area.

7.  A Standard Form 513, dated 28 May 2009, indicated that an orthopedic evaluation was a medical requirement for Reserve duties.

	a.  The applicant complained of chronic neck pain with intermittent exacerbation which he described as disabling.  Each attack lasted a couple of days.  His job was sedentary, but he was not capable of lifting, running, or other strenuous labor.  He was considering deployment, but felt he would not be able to participate in any of the physical activity required of him in the Army.  He contended that his problem had been on-going for several years and he had been treated in the past with physical therapy, chiropractic treatment, and pain management.  His other problems included sleep apnea, pain in his feet, and carpal tunnel syndrome.

	b.  Examination of the applicant's mobile cervical spine showed no obvious neurodeficit to suggest radiculopathy.  A record of previous x-rays of his cervical spine indicated degenerative disc disease.

	c.  The physician's impression was chronic cervical spondylosis.  He advised that the applicant should continue with conservative management of this condition because surgery was contraindicated.  His activities should be tailored to avoid exacerbation of the condition; the physical requirements of deployment would not be tolerated and should be avoided.  He was capable of performing only a sedentary job.

8.  A Standard Form 507 (Medical Record), dated 19 August 2009, reports that the applicant's medical review process was completed and showed the following:

	a.  Medical records review:

* sleep apnea
* neck pain – whiplash injury secondary to motor vehicle accident 2003, degenerative disc disease, had physical therapy and treated by chiropractor, receives VA disability
* foot pain – torn sole bilaterally
* wrist pain – carpal tunnel
* history of depression
* elevated blood pressure – blood pressure 133/73, treated with hydrochlorothiazide
* over maximum allowable weight – height 77 inches, weight 275 pounds

	b.  Summary:  Does not meet medical retention standards in accordance with Army Regulation 40-501 for:

* chronic neck pain
* chronic wrist pain
* chronic plantar fasciitis
* chronic sleep apnea
* history of depression
* history of eczema
* elevated blood pressure
* over maximum allowable weight

9.  A DA Form 3349, dated 19 August 2009, records the applicant's permanent physical profile of "233111" for his medical conditions listed below.  It also states the need for an MEB/physical evaluation board (PEB).  The form was signed by two physicians and approved.  The applicant's unit commander had not signed the copy available for review.  Page 2 of this document is not available in the applicant's record.

* chronic neck pain
* chronic wrist pain
* chronic plantar fasciitis
* chronic pes planus

10.  On 5 October 2009, the Command Surgeon, HRC-STL, informed the applicant via memorandum of the following:

	a.  Based on a review of available medical records, he did not meet USAR retention standards.  The specific medical conditions were those listed on his DA Form 3349.

	b.  He had four options for disposition of his case:

* elect to be discharged from the USAR
* elect transfer to the Retired Reserve, if eligible for retirement
* elect consideration by a non-duty related (NDR) PEB
* elect consideration by an MEB for injuries that occurred or were aggravated while on active duty orders

	c.  If he elected an NDR-PEB or an MEB, he was responsible for assembling legible copies of all documents he wanted the board to consider and to provide those documents to HRC no later than 5 November 2009.

	d.  Until the medical board process was completed, his medical disqualification would remain a part of his record and would prevent him from performing any active military service or being transferred to any other unit.

	e.  He could obtain military retirement points during this period via completion of military correspondence courses.

	f.  If he was unable to comply with these instructions by the suspense date, he was to notify the administrative team as soon as possible.

11.  In a letter from the applicant to the Command Surgeon, HRC-STL, dated 31 October 2009, the applicant stated he selected the MEB option and had enclosed photocopies of 31 documents for the board to consider which he had listed in an attached roster.

12.  In a memorandum, dated 9 December 2009, the Command Surgeon, 99th Regional Support Command, informed the Commander, U.S. Army Medical Activity, that he had reviewed the applicant's medical documents concerning his conditions as listed in paragraph 7a above.  The applicant's medical condition was considered unacceptable.  The medical documents were referred to the Human Resources Director for administrative action.

13.  In a letter addressed to the Commander, HRC-STL, dated 19 April 2010, the applicant requested his assistance.  The applicant states:

	a.  On or about 8 October 2009, he received notification of his failure to meet retention standards and a directive to elect one of the options.  He contends that on 31 October 2009 he sent notarized copies of his documents by overnight express mail to HRC-STL.  He also states that he did not receive any further information and was not given a date for an MEB.

	b.  On or about 26 March 2010, the applicant received a memorandum from a Senior Human Resources Officer, 99th Regional Support Command, Fort Dix, NJ, dated 19 April 2010.  This correspondence requested a second acknowledgment of notification and selection of election options for the disposition of his case.  He informed the addressee that he had responded to the Senior Human Resources Officer that same day and had enclosed a copy of his response with this letter.

	c.  On or around 2 January 2010, the applicant received a memorandum from the Deputy Director, Actions and Services, HRC-STL, subject:  Attainment of Maximum Age, which requested a response in 30 days.  The applicant contends that he sent his notarized response via overnight express mail on 11 January 2010.  On 27 March 2010, he received another copy of the same memorandum.  He asked in this letter if there was a problem with his first response.

	d.  The applicant also stated he had received a letter from the addressee, dated 24 June 2009, assigning him to the Individual Ready Reserve (IRR) effective on or around 17 April 2010.  He stated it appeared the correspondence had been lost in the mail for 10 months based on its postmark of 14 April 2010.  He thanked the addressee for his attention to this matter.

14.  Orders D-08-013903, HRC, St. Louis, dated 9 August 2010, discharged the applicant from the USAR Control Group (Reinforcement) effective 2 August 2010.  He was also issued an Honorable Discharge Certificate in accordance with these orders.

15.  The applicant was evaluated by the VA on multiple occasions.  The following rating decisions were rendered:

	a.  12 March 2009:  50 percent for sleep apnea and 0 percent for hypertension, both with service connection;

	b.  27 May 2009:  service connection for cervical spine degenerative disc disease, increased from 10 percent to 20 percent;

	c.  6 July 2010:  pseudofolliculitis barbae (inflammation of one or more hair follicles) reduced from 10 percent to 0 percent effective 18 December 2009 and entitlement to individual unemployability and payment at the 100-percent rate was denied because his service-connected disabilities do not show he was unable to work;

	d.  21 May 2011:  service connection for lumbosacral spine degenerative arthritis and associative bladder dysfunction, each rated at 20 percent effective 29 March 2010; bilateral hearing loss was denied.  His overall combined rating was 80 percent;

	e.  31 January and 9 February 2012:  service connection for major depression rated at 30 percent effective 4 May 2005 and degenerative changes of right acromioclavicular joint rating increased from 10 percent to 20 percent effective 9 September 2010;

	f.  28 February 2012:  service connection for sciatic nerve dysfunction, left and right lower extremities associated with lumbosacral spine degenerative arthritis, each rated at 10 percent effective 9 September 2010;

	g.  1 March 2012:   The VA informed the applicant that his overall combined physical disability rating was 90 percent.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.

17.  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.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that a Soldier is fit.  Application of the rule does not mandate a finding of fit.  The presumption is rebuttable and is overcome when the preponderance of evidence establishes the Soldier was physically unable to perform adequately the duties of his or her office, grade or rank.

18.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he requested to go before an MEB in a timely manner; however, he never received such consideration.  He now implies that he wants to be evaluated by an MEB.

2.  The available evidence clearly shows the applicant was involved in a motor vehicle accident in 2003 while serving on active duty that resulted in neck and shoulder injuries.  Those injuries may have contributed to his subsequent inability to meet medical retention standards.  However, the 28 May 2009 Standard Form 513 indicated that he was capable of performing “only” a sedentary job, but he also indicated on the form that his job was sedentary.  There is insufficient evidence to show he was not fit to perform his duties as a social worker officer; therefore, he was properly separated upon reaching maximum age without going through the physical disability evaluation system.

3.  Orders show that the applicant was discharged from the USAR effective 2 August 2010.

4.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge from the USAR was conducted in accordance with law and regulations applicable at the time.

5.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20120005543



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ABCMR Record of Proceedings (cont)                                         AR20120005543



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