IN THE CASE OF:	  

		BOARD DATE:	  5 September 2013

		DOCKET NUMBER:  AR20120017796 


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 his records to:

* show he was retained on active duty (AD) until the day he was retired, 
3 July 2012
* receive any and all back pay and allowances to the date of his retirement
* back pay and allowances in connection with his deployment to Iraq 

2.  The applicant states:

* he initially enlisted in the Regular Army in 1985 and served until he was discharged in 1992
* he secured civilian employment with a U.S. firm in Germany
* he reenlisted in the U.S. Army Reserve (USAR) in 2008 and was ultimately deployed to Iraq where he was injured
* he was returned to Germany and underwent two operations while assigned to the warrior transition unit (WTU)
* while assigned to the WTU, it was determined no additional care was authorized, and he was released from active duty (REFRAD)
* after he left the WTU his profile was changed from a permanent 3 (P3) to a P2 without benefit of a physical examination
* no line of duty (LOD) investigation was done in connection with his injuries and the medical evaluation board (MEB) had to be delayed
* he ultimately underwent an MEB and physical evaluation board (PEB) and received a 40 percent permanent disability rating
* an investigation indicated he was REFRAD without "appropriate administrative adjudication of his medical condition"
* he had pay problems since he enlisted in the USAR, to include being taxed while deployed to Iraq and not receiving travel pay to and from Iraq
* on three occasions, he requested pay inquiries to no avail

3.  The applicant submitted:

* 4 orders
* A 4-page self-authored statement
* 13 DA Forms 4865-E (Developmental Counseling Form)
* an APRC 249-E (Chronological Statement of Retirement Points)
* 2 DA Forms 3349 (Physical Profile)
* his DD Form 214 (Certificate of Release or Discharge from AD)
* 5 pages of email
* a DA Form 1594 (Daily Staff Journal or Duty Officer's Log)
* a DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* a Memorandum for Record (MFR)
* 4 Leave and Earnings Statements (LES)
* a DA Form 2142 (Pay Inquiry)
* 2 DD Forms 1351-2 (Travel Voucher or Subvoucher) 
* pages 1-3 and 6 of a Report

CONSIDERATION OF EVIDENCE:

1.  There is no evidence nor did the applicant submit any evidence that shows he contacted the Defense Finance and Accounting Service-Indianapolis, Dept. 3300 (Protest Audit), 8899 E. 56th Street, Indianapolis, IN 46249-3300 to seek resolution of his pay issues related to his deployment to Iraq.  As a result, these issues will not be discussed any further in this record of proceedings.

2.  The applicant was born on 21 October 1965.  After prior AD service, he enlisted in the USAR on 21 May 2008.  He entered active duty on 11 February 2010 in military occupational specialty 88N (Traffic Management Coordinator).

3.  He submitted:

	a.  Orders Number 143-002, issued by Department of Defense, Heidelberg Entrance Processing Station, dated 22 May 2008, which show he was ordered to report to the Warrior Transition Course at Fort Sill, OK, on 20 August 2008;  


	b.  Orders Number 240-084, issued by Headquarters, U.S. Army, 95th Adjutant General Battalion (Reception), dated 27 August 2008, which show he was attached to 1st Battalion, 515th Regimental Regional Training Institute, a follow-up assignment to White Sands Missile Range, NM, with a report date of 
29 August 2008;

	c.  Orders Number 09-049-00016, issued by 7th Civil Support Command, dated 18 February 2009, which show he was ordered to AD for the purpose of mobilization in support of Operation Iraqi Freedom with a reporting date of 
7 January 2009;

	d.  Orders Number A-02-005448, issued by the U.S. Army Human Resources Command (HRC), dated 19 February 2010, which show he was retained on AD, effective 11 February 2010, in order to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for the purpose of a medical evaluation;

	e.  13 DA Forms 4856-E, dated from 20 February 2010 to 2 December 2010, which show he assigned to the WTU for the purpose of healing and transition back to his unit;

   f.  an MFR, issued by A Company, Warrior Transition Battalion, Europe Regional Medical Command, dated 11 January 2011, Subject:  REFRAD, (the applicant), which stated:
   
		(1)  he received treatment for right shoulder pain (surgery on 22 October 2010), neck pain, and anxiety/depression; 

   (2)  he had actively participated in treatment and reached a point where he
could function in his military occupational specialty; 

   (3)  recommended he be REFRAD as soon as possible; and 
   
(4)  he had no temporary physical restrictions and no functional limitations
that prevented him from duty.
   
   g.  a memorandum to HRC from A Company, Warrior Transition Battalion, Europe Regional Medical Command, dated 18 January 2011, Subject:  REFRAD, which stated:

* a medical evaluation for the applicant found him fit for duty 
* he was REFRAD to return to his parent unit
* he met medical retention standards
* he was able to perform within the limits of his profile
* he has a temporary profile with 3 for upper 
* he was diagnosed with shoulder pain 
   
   h.  a DA Form 3349 dated 19 May 2011, from the 90th Regional Reserve Command, which show Colonel R______t as the profiling officer and Colonel P_______g as the approving authority for the P3 profile issued for his upper and lower extremities due to rotator cuff tendonitis right shoulder and cervical spondylosis (moderate) and recommended him to a MEB;

   i.  a DD Form 214, which shows he was REFRAD on 24 May 2011 after the completion of required active service.  His DD Form 214 shows he competed
1 year, 3 months, and 14 days of active service.  Item 18 (Remarks) does not show his service in Iraq.

	j.  two DA Forms 3349, which were issued after he was discharged on:

   (1)  31 May 2011, from the Baumholder, Germany, Health Clinic, which shows Colonel A_______y as the profiling officer and Colonel P_______g as the approving authority for the P2 profile issued for his upper and lower extremities due to rotator cuff tendonitis right shoulder and cervical spondylosis (moderate) and recommended him to a Military Occupational Specialty/Medical Retention Board;

   (2)  18 July 2011, which shows Major N____n as the profiling officer and Doctor M____n as the approving authority for the P3 profile issued for his upper extremities due to chronic degenerative neck pain and recommended him to an MEB.  Of 10 functional activities listed, the applicant was found to be able to perform only one – wear military boots and uniform for at least 12 hours per day; and
   
   k.  five emails, dated:

		(1)  11 July 2011, from the PEB Liaison Officer, who stated the applicant's  P3 physical profile was erroneously changed to a P2 profile on 31 May 2011 and that he needed orders to continue the MEB process;

		(2)  12 August 2011, which indicated he was having pay problems and was going to Landstuhl Regional Hospital to get his appointment schedule;

		(3)  14 September 2011, concerning his lack of pay, wrongful removal from the WTU as of 24 May 2011, and inability to continue his medical appointments; 
   (4)  21 September 2011, which show he was inquiring about an LOD and
DD Form 2173, that needed to be completed within 7 days of injury; and 
   
   (5)  13 July 2012, from the Office of Soldiers' Counsel, which indicated his office was working with the applicant.

l.  two DA Forms 1594, which show on:

	(1)  26 August 2011, he contacted his unit regarding his residency status in relationship to his medical and finance problems; and  

	(2)  30 August 2011, he contacted his unit regarding his appointments.
The MEB nurse told the applicant's unit that he may need to be on orders for his appointments.

	m.  a memorandum from the 1177th Transportation Detachment Movement Control Team, dated 22 September 2011, Subject:  In the Line of Duty Determination Letter of Lateness, which stated that neither the applicant's unit nor the WTU initiated an LOD.  The memorandum also stated:

   (1)  on 22 July 2011, he received a P3 profile for chronic degenerative
neck pain; 
   
   (2)  a medical board was initiated to evaluate his continued service; 
   
   (3)  an MEB was initiated based on the approved LOD he provided to his assigned PEB liaison; 

   (4)  on 24 August 2011, it was discovered that the LOD he provided was
actually for a torn anterior cruciate ligament (one of the four major ligaments of the human knee) and not related to the P3 profile:  
   
   (5)  since the LOD and P3 profile did not match, his MEB proceedings
were placed on hold pending a matching LOD;  

   (6)  when asked, the applicant stated that while he was assigned to the
WTU he was treated at the emergency room for the neck issue that resulted in the P3 profile issued on 18 July 2011; and 
   
   (7)  on 8 September 2011, an LOD was initiated based on the applicant's
medical documentation of his visit to the emergency room.
   


   n.  Orders Number 273-0005, issued by the Installation Management Command, Kaiserslautern Transition Center, dated 30 September 2011, show:
   
   (1)  effective 24 May 2011, he was REFRAD and assigned to the
1177th Transportation Company Detachment; and
   
   (2)  he was eligible for transitional health care until 20 November 2011.
   
   o.  a memorandum for retention from the Landstuhl Regional Medical Center, Patient Administration Division, dated 16 November 2011, Subject: Notification of Physical Disability Processing, which stated the applicant:

   (1)  had been identified as having a permanent profile with a "3" or "4" and
as a result was referred to an MEB to determine his medical fitness;

   	(2)  he must be deleted from any pending levy actions; 
   
   	(3)  he would be in the MEB and PEB process for 180 days or until his case was adjudicated by the appropriate agencies from an AD status; and 
   
   	(4)  he must be compliant with all medical appointments, and medications.

   p.  the applicant's record contains a DA Form 199, dated 21 March 2012, which shows the PEB:

   (1)  found that the applicant was physically unfit due to degenerative
arthritis of the spine, arm (limitation right shoulder), and left patellofemoral syndrome (knee);   
   
   (2)  granted him a combined 40 percent disability rating and permanent
disability retirement;   
   
   (3)  determined his retirement was not based from injury or disease
received in the LOD as a direct result of armed conflict, caused by an instrumentality of war, or incurred in the LOD during a period of war; and 
   
   (4)  his disability did not result from a combat-related injury.

   q.  Orders Number D150-05, issued by the U.S. Army Physical Disability Agency, dated 29 May 2012, show the applicant was released from assignment and and placed on the retired list on 3 July 2012 with a 40-percent disability rating.
   
   r.  an unverified report, dated 4 June 2012, which indicated an investigation was conducted in regard to the applicant's allegations to his being REFRAD prior to the administrative adjudication of his medical conditions; returned to AD; and awarded associated back pay and allowances.  The findings indicated he was REFRAD without appropriate administrative adjudication of his medical conditions.  However, his record is void of and he did not submit pages 4 and 5 of the findings.

4.  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.

5.  Army Regulation 635-40, paragraph 3-6, in pertinent part, states that the time at which a Soldier should be processed for disability retirement or separation must be decided on an individual basis.  The interest of both the Army and the Soldier must be considered.  A Soldier may not be retained or separated solely to increase retirement or separation benefits.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

6.  Title 10, U.S. Code, Section 1145 states that (a) Transitional Health Care will be provided for:   

a.  A member of a Reserve component who is separated from AD to
which called or ordered in support of a contingency operation if the AD is for a period of more than 30 days. 

b.  Except as provided in paragraph (7), transitional health care for a member
under subsection (a) shall be available for 180 days beginning on the date on which the member is separated from active duty.  For purposes of the preceding sentence, in the case of a member on active duty as described in subparagraph (B), (C), or (D) of paragraph (2) who, without a break in service, is extended on active duty for any reason, the 180-day period shall begin on the date on which the member is separated from such extended active duty. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he should have been retained on AD until the date he was retired and he should receive all associated pay and allowances were carefully considered.  Unfortunately, the medical records that document the applicant’s underlying condition promoting a profile are not included with his application, nor is his MEB narrative summary available.  Since the case revolves around a series of profiles, it is difficult to determine which profile (the MEB or the NO MEB) profile is the most accurate without those medical records.  It also appears that two profiles are missing, and an investigating officer appears to have determined that the applicant should have been referred to the disability evaluation system while activated but his findings are submitted as a partial document with a portion missing.  

2.  The available evidence shows the applicant received a P2 profile from the WTU after appropriate convalescence from knee and shoulder surgery.  He met retention standards, did not need an MESB, and was approved for REFRAD.  This profile is not included.  Just 5 days prior to discharge, he received a profile from a doctor who did not treat him.  That doctor changed his profile to a P3, specifically 333111.  The profile lists no lower extremity malady but nonetheless assigned a permanent L3, for lower extremities.  This profile , which presumed to overrule that which was generated by the treating physicians, recommended an MEB, yet the profiling doctor did not stop the applicant’s separation in order to effect an MEB.  

3.  Twelve days later (7 days after his separation), the WTU profiling physician changed the applicant’s profile back to P2, but appears to have changed only the profile itself, to 122111, and did not change the limitations imposed by the previous doctor back to those which would more appropriately support a permanent 2.  This appears to be nothing more than an administrative error and poor profile management.  Both of the contradictory profiles were approved by the same approving officer.  

4.  Therefore, it appears the investigating officer’s determination that the applicant should have received an MEB while on active duty, based on the profiles noted, is without merit.  The profile generated by the applicant’s surgeons and primary care manager who also determined he was fit for duty and cleared for REFRAD is of much more probative value than the profile issued by a non-treating physician who based his opinion on a records review.

5.  A fourth profile was issued in July 2011, a permanent 113111 profile due to neck pain.  This profile prohibited every activity except the wearing of military boots and clothing and resulted in an MEB.  It was issued at a pain clinic.

6.  The PEB found three conditions to be unfitting (knee, shoulder, and neck).  None of these conditions were unfitting due to objective findings, but they were specifically stated to be unfitting because of the limitations imposed by the profile.  The conditions were not unfitting because of limitations imposed by the applicant’s surgeons or his primary care manager.  Those doctors determined he was fit for duty.  The conditions in question were unfitting because of the limitations imposed by the profile written by a pain management physician.  Because a PEB has to determine if the Army can reasonably accommodate the limitations of any given Soldier’s profile, the applicant’s July 2011 profile basically left no room for a PEB finding of anything other than “unfit.”

7.  However, the preponderance of evidence indicates that the applicant could perform the duties of his MOS (traffic management coordinator) at the time of his REFRAD.  The profile written 5 days prior to his REFRAD is of little probative value, and the profile from July 2011, 2 months after his REFRAD, was written by a pain management doctor and appears to represent nothing more than a difference of opinion.  However, that does not establish fault on the part of the applicant’s treating physicians who determined that he was fit for duty and appropriately recommended REFRAD.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:
____ ____  ____ ___  ________  GRANT FULL RELIEF 

_______  _________  ________  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)                                         AR20120017796



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ABCMR Record of Proceedings (cont)                                         AR20120017796



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