BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120019969 


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, appearance before a medical evaluation board (MEB)/physical evaluation board (PEB) and correction of his military records to show he was medically discharged.

2.  The applicant states his separation from the Puerto Rico Army National Guard (PRARNG) was erroneous due to the fact that he was not referred to an MEB/PEB.  He was instead transferred to the Retired Reserve due to a permanent physical profile.  He contends that after a "Fit For Duty Determination Board" conducted on 6 February 2001, he was not given the opportunity to elect referral for proper medical disposition by an MEB/PEB.  He argues that the medical condition for which he was declared unfit for retention occurred while he was serving on annual training at Camp Shelby, MS, during the period 29 May to 12 June 1999.  The evidence shows he was diagnosed with and treated for a lower back strain while loading a powder pallet on a truck when a pallet fell.  Neither his commander nor the PRARNG ensured that a line-of-duty (LOD) determination was completed prior to his separation.

3.  The applicant provides:

* Orders 072-336, PRARNG, dated 22 April 1999
* Standard Form 600 (Chronological Record of Medical Care), dated 7 June 1999
* DD Form 689 (Individual Sick Slip), dated 7 June 1999
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 June 1999
* DD Form 689, dated 9 June 1999
* letter, PRARNG, dated 1 July 1999
* Standard Form 600, dated 8 July 1999
* Standard Form 600, dated 2 September 1999
* Standard Form 600, dated 1 November 1999
* DA Form 3349 (Physical Profile), dated 1 November 1999
* National Guard Bureau (NGB) Form 23B (Army National Guard Retirement Points History Statement), dated 2 July 2000
* memorandum, PRARNG, dated 2 July 2000, subject:  Notification of Eligibility for Retired Pay at Age 60 (two certified true copies)
* DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 31 August 2000
* ARNG Annual Medical Certificate, dated 20 January 2001
* memorandum, PRARNG, dated 6 February 2001, subject:  PRARNG Medical Duty Review Board (MDRB)
* NGB Form 22 (Report of Separation and Record of Service) effective 1 March 2001
* Orders 58-26 PRARNG, dated 27 March 2001
* NGB Form 23B, dated 17 October 2012
* memorandum, PRARNG, dated 17 October 2012, subject:  Request for Correction of Erroneous Separation from PRARNG due to Medical Reasons

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.  Orders 072-336, PRARNG, dated 22 April 1999, ordered him to annual training at Camp Shelby during the period 29 May to 12 June 1999.



3.  A DD Form 689, dated 7 June 1999, reported the applicant was examined for a complaint of a back injury.  He was ordered to quarters and restricted from doing any lifting, pushing, or pulling for 16 days.

4.  A Standard Form 600, dated 7 June 1999, reported the applicant injured his lower back while lifting his arms above his head.

5.  A DA Form 2173, dated 8 June 1999, reported the applicant was loading the ammunition truck on 7 June 1999 with powder pallets when he felt a sharp pain in his lower back.  His injury was determined to be in the LOD.  The PRARNG Adjutant General subsequently approved the LOD determination as indicated on the reverse side of the form.

6.  A DD Form 689, dated 9 June 1999, reported the applicant complained of lower back pain and was placed on light duty for 48 hours.

7.  On 1 July 1999, the PRARNG Administration Noncommissioned Officer notified the troop medical clinic at Fort Buchanan, PR, via letter that the applicant was authorized necessary treatment or hospitalization for his lower back pain.  All bills for his treatment were to be referred to the PRARNG.

8.  A Standard Form 600, dated 8 July 1999, reported that the applicant complained of having lower back pain for the past month.

9.  A Standard Form 600, dated 2 September 1999, reported that the applicant's lower back pain is improved but was persistent.  He was prescribed medication for the pain.

10.  A Standard Form 600, dated 1 November 1999, reported the applicant still had lower back pain, especially when waking up in the morning.  He had mild pain the day prior.

11.  A DA Form 3349, dated 1 November 1999, reported that the applicant was given a temporary physical profile of "112111."  His assignment limitations consisted of no sit-ups and running at his own pace and distance.

12.  On 6 February 2000, a PRARNG Health System Specialist issued a memorandum stating that an MDRB convened on 20 January 2000 and considered the applicant's medical fitness for retention in the ARNG.  The MDRB diagnosed the applicant with a herniation of nucleus pulposus in L4-L5.  He was not able to comply with all of the duties of his military occupational specialty.  He had completed 20 years of qualifying service for retired pay.  The MDRB recommended a permanent physical profile rating of "4" in his lower extremities with an assignment limitation of "unfit for service."  He was "unfit for retention in the PRARNG" in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39e.

13.  On 2 July 2000, the PRARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

14.  An ARNG Annual Medical Certificate, dated 20 January 2001, indicates that an MDRB considered the applicant's lower back pain and recommended his separation.  The form indicates he had a permanent physical profile rating of "4" in his lower extremities.  The form was signed by a medical member, a military personnel officer, and the applicant.

15.  NGB Form 22, effective 1 March 2001, reports the applicant was separated from the PRARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve).  He completed 20 years, 8 months, and 2 days of service.

16.  In a memorandum for the applicant, dated 17 October 2012, the Personnel Officer (G-1), PRARNG, wrote that after reviewing and conducting a detailed research of the applicant's case, an agreement was reached.  The G-1 recommended approval of the applicant's request.  The G-1 makes the following statements/recommendations:

	a.  The evidence clearly shows the applicant received complex medical treatment for a lower back injury incurred while participating in annual training at Camp Shelby.

	b.  An informal LOD investigation was completed by the PRARNG with a "yes" determination.

	c.  An MDRB determined he was unfit for retention and issued him a permanent physical profile rating of "L4."

	d.  In accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), his command was required to provide him with the benefit of prompt disability processing to determine if his military service was to be terminated due to a service-connected disability.

	e.  There is no evidence showing he was properly counseled about his rights to an MEB/PEB.  His commander had the responsibility to ensure he received this counseling.

	f.  The G-1 opined that his request should be approved as a matter of justice.  However, because he was no longer a member of the PRARNG, the PRARNG no longer had the authority to reinstate him or to change his current Retired Reserve status to a retirement based on disability.

	g.  The G-1 recommended that the Office of the Surgeon General (OTSG) authorize a physical evaluation of the applicant and issuance of invitational travel orders should a formal PEB become necessary.

17.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

18.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.

19.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

20.  Army Regulation 40-501 provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this regulation should be referred for disability processing.  This regulation provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations ("1-4") are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  The numerical designator "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  The numerical designator "4" indicates an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.
21.  Army Regulation 635-40, paragraph 3-1, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by permitting him to appear before an MEB/PEB because he was erroneously denied the opportunity to elect referral for proper medical disposition.

2.  The available evidence clearly shows that while the applicant was on annual training in June 1999, he hurt his lower back while loading pallets of powder onto a truck.  His injury was described at the time as being a lower back pain.  The subsequent LOD determination of "yes" was based on this same lower back pain.

3.  In November 2000, the MDRB determined that the applicant's unfitness for retention in the PRARNG was due to a "herniation of nucleus pulposus L4-L5."  Unfortunately, there is no available evidence showing the applicant's injury in June 1999 resulting in his lower back pain was the cause for his medical diagnosis in November 2000 by the MDRB.  Furthermore, there is no evidence showing when or under what circumstances his diagnosed herniation occurred.  The MDRB did not conclude that his herniation was the result of or connected to his military service.

4.  In October 2012, the PRARNG reports that they reviewed and researched the applicant's case.  The PRARNG recommended the applicant's referral to an MEB; however, no records or documented evidence of their review were provided for this Board's review.

5.  Neither the applicant nor the PRARNG has identified a disqualifying medical condition requiring an MEB.

6.  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)                                         AR20120019969



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ABCMR Record of Proceedings (cont)                                         AR20120019969



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