IN THE CASE OF:	  

		BOARD DATE:	 15 October 2013 

		DOCKET NUMBER:  AR20120020213 


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, that her medical records be referred for review under the Physical Disability Evaluation System (PDES).

2.  She states, in effect, her medical records and related documents were not properly processed by her unit.  The unit did not give her appropriate assistance or counseling.  Even though her paperwork was seen by various organizations, mistakes were not caught.  The original packet was lost, and her records were never evaluated under the PDES.  

3.  She also states she wishes to know whether she is "Army Active Duty Retired or Retired Reserve."  She was told she was supposed to have been retired from active duty because she had more active duty service than U.S. Army Reserve (USAR) service.

3.  She provides:

* self-authored letters to a member of Congress
* memorandum, subject:  Notification of Medical Unfitness for [Applicant], dated 11 February 2009, with enclosures
* fax confirmations and U.S. Postal Service delivery confirmations
* handwritten notes
* copies of U.S. Uniformed Services Identification Cards
* orders
* administration data printouts
* printout of an Integrated Web Services transaction
* copies 1 and 4 of her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* memorandum, subject:  Medical Determination for [Applicant], dated 12 December 2008
* memorandum, subject:  Commander's Performance Statement [Applicant], dated 19 April 2009
* memorandum, subject:  Delegation of Signature Authority, dated 20 March 2009
* letter from the Mental Health Clinic Director, Hunter Holmes McGuire Medical Center, Department of Veterans Affairs (VA), Richmond, VA, dated 22 July 2008
* three pages of a VA Rating Decision, dated 31 January 2008
* service medical records
* VA medical records
* DA Form 3349 (Physical Profile)
* ARPC Forms 249-E (Chronological Statement of Retirement Points)
* DA Form 2A (Personnel Qualification Record)
* Army Physical Fitness Test Scorecard
* memorandum, subject:  Command Surgeon Review, dated 16 July 2008, with enclosures
* DA Form 4187 (Personnel Action)
* DA Form 4651 (Request for Reserve Component Assignment or Attachment)
* U.S. Army Human Resources Command (HRC) Form 4123-9 (Medical Information Checklist - Neurology Physician (Neurologist))
* Functional Capacity Certificate Forms 507
* AHRC Form 4123-10 (Medical Information Checklist - Psychiatry Physician (Psychiatrist))
* e-mail correspondence
* Medical Evaluation Board (MEB) Document Checklist
* blank DA Form 3947 (MEB Proceedings)
* printout of a Warrior Transition Command web page describing the PDES
* printout of a Health Services Branch Military Occupational Specialty Medical Review Board (MMRB)/Physical Evaluation Board (PEB) Feedback Report
* letters from the TRICARE Enrollment Department, Health Net Federal Services, dated 22 and 23 March 2012
* memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter), dated 13 March 2012
* printout of Defense Enrollment Eligibility Reporting System (DEERS) information from Army Knowledge Online
* printout of her assignment history
* DD Form 2876 (TRICARE Prime Enrollment Application and Primary Care Manager Change Form)
* staff list for the Individual Readiness Division (Trainees, Transients, Holdees, and Students (TTHS))
* letter from the TTHS Division Chief, Headquarters, 99th Regional Readiness Command, Coraopolis, PA, dated 28 October 2008

CONSIDERATION OF EVIDENCE:

1.  On 29 September 1992, the applicant enlisted in the Regular Army (RA).  After completing initial entry training, she was awarded MOS 92G (Food Service Operations), which she held throughout her RA service.

2.  On 14 February 2007, she underwent a medical examination for separation.  The DD Form 2808 (Report of Medical Examination) documenting the examination shows the examining physician found she had a history of chronic bilateral carpal tunnel syndrome, eczema, and migraine headaches.  He found her qualified for service.

3.  A DA Form 2807-1 (Report of Medical History), dated 28 February 2007, completed during her separation processing shows, in part, she reported having had nervous trouble, frequent trouble sleeping, and depression or excessive worry.  

4.  A Medical Command (MEDCOM) Form 4038 (Report of Behavioral Health Evaluation), dated 20 March 2007, shows she met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  She was psychiatrically cleared for any administrative action deemed appropriate by command.  

5.  On 30 April 2007, she was discharged by reason of parenthood after completing 14 years, 7 months, and 2 days of net active service.  

6.  On 15 May 2007, she enlisted in the USAR for a period of 6 years.  After her enlistment in the USAR, she successfully completed training for MOS 74D (Chemical, Biological, Radiological, and Nuclear Specialist), and she was awarded the MOS effective 18 March 2008.

7.  A VA Rating Decision, dated 31 January 2008, shows she was granted service-connected disability ratings for the following conditions effective 1 May 2007:

* adjustment disorder with depressed mood and trichotillomania (50 percent (%))
* migraine headaches (30%)
* status post left broken foot (10%)
* postoperative right carpal tunnel syndrome (0%)
* postoperative left carpal tunnel syndrome (0%)

8.  The Rating Decision also shows her service treatment records indicated she had been:

* treated with medication for trichotillomania in April 1999
* diagnosed with generalized anxiety disorder in April 1999
* treated for depression in July 2004
* treated for migraine headaches in February 2003 and September 2006

9.  A DD Form 2808 shows, on 9 May 2008, she underwent a retention medical examination.  The examining physician found her qualified for service pending review by command authority.  

10.  A Standard Form 507 (Medical Record), dated 17 June 2008, shows the review process had been completed.  The review found the applicant did not meet medical retention standards based on four diagnoses:

* adjustment disorder with depressed mood and trichotillomania (hair-pulling disorder)
* depression
* anxiety and panic attacks
* migraine headaches

11.  In a letter, dated 22 July 2008, the Mental Health Clinic Director, Hunter Holmes McGuire Medical Center, informed First Sergeant B___ T____ that the applicant had been evaluated on 19 April 2008.  The Director stated the applicant's conditions were chronic permanent conditions which could be treated symptomatically.  The conditions were expected to have exacerbations, especially under stress.  The Director stated the applicant should be released from any further drills.  

12.  In an e-mail, dated 21 October 2008, a Human Resource Noncommissioned Officer (NCO) informed the applicant and others that the applicant had been transferred to the TTHS.  The NCO indicated an MEB was "in the works."  Additional e-mail correspondence indicates the applicant complied with requests for documentation.  

13.  In a memorandum, subject:  Medical Determination for [Applicant], dated 12 December 2008, the Command Surgeon, Headquarters, 99th RSC (West) Coraopolis, PA, informed the applicant's chain of command her medical condition was unacceptable due to three diagnoses:  depression, anxiety with panic attacks, and migraine headaches.  

14.  In a memorandum, subject:  Notification of Medical Unfitness for [Applicant], dated 11 February 2009, the Deputy Chief of Staff, G-1, Headquarters, 99th RSC, Fort Dix, NJ, informed the applicant she had been found medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  He informed her that, as a result of her disqualification, she had three options:

* request reassignment to the Retired Reserve
* request an honorable discharge from the USAR
* request a review of her medical disqualification by a Physical Evaluation Board

15.  The second page of the memorandum was to be used by the applicant to make her decision.  On 4 March 2009, she elected reassignment to the Retired Reserve with early qualification to receive retired pay at age 60 based on having at least 15 but less than 20 qualifying years of service for retired pay.  

16.  A DA Form 5889-R (PEB Referral Transmittal Document) was enclosed with the memorandum, dated 11 February 2009.  The applicant provided her name and contact information on the form and entered the date 4 March 2009.  The form was not signed by a PEB Liaison Officer.   

17.  A DA Form 4187, dated 6 March 2009, shows a request for personnel action was submitted based on her medical disqualification under Army Regulation 40-501.  Section IV (Remarks) of the form contains a statement acknowledging she understood she was subject to involuntary separation from the Selected Reserve solely because she was medically disqualified and that she had the opportunity to elect early qualification for retired pay at age 60 provided she transfer to the Retired Reserve.  In Section V (Certification/ Approval/Disapproval), an "x" was placed in the block for "recommend approval," and the form was signed by a commander/authorized official.  The applicant did not sign the form.  

18.  In a memorandum for the President, PEB, Washington, DC, subject:  Commander's Performance Statement [Applicant], dated 19 April 2009, the applicant's commander described the applicant's past medical history and her present condition.  Her commander stated:

* the applicant's medical condition began while serving on active duty prior to being assigned to the USAR 
* the applicant's "physical and mental state" were diagnosed while she was serving on active duty
* her VA claim was approved on 31 January 2008
* during 14 months of active attendance with her USAR unit, the applicant did not "express or display any known signs of depression or social impairment"
* she successfully completed MOS training on 18 March 2008
* her attendance began to decline in June 2008, when she informed her first sergeant of her medical condition and impairment to attend unit assemblies
* upon request, she provided medical documentation stating her inability to perform military duty
* from July 2008 to the date of the memorandum, the applicant had been excused from attending unit assemblies 
* the unit had initiated the MEB process
* it was in the best interest of the applicant to release her from the USAR

19.  On 27 May 2010, Headquarters, 99th Regional Support Command (RSC), Fort Dix, NJ, issued Orders 10-147-00040 assigning her to the TTHS.  

20.  A DA Form 4651, dated 11 August 2010, shows the applicant requested transfer to the USAR Control Group (Reinforcement).

21.  E-mail correspondence shows numerous inquiries regarding the status of her "medical paperwork" between 2009 and October 2010.  

22.  On 16 March 2011, the same headquarters issued Orders 11-075-00027 assigning her to the Retired Reserve by reason of medical disqualification that was not the result of her own misconduct.  The orders stated she was authorized early retirement under Title 10, U.S. Code, section 12731b.  

23.  On 13 March 2012, HRC issued her a 15-year letter informing her that, as a member of the Selected Reserve who had been medically disqualified for further active service and had attained at least 15 but less than 20 years of qualifying service, she was eligible to apply for retired pay and benefits upon attaining age 60.  The letter notes she had requested transfer to the Retired Reserve.  

24.  A letter from the TRICARE Enrollment Department, Health Net Federal Service, dated 22 March 2012, informed her they had reviewed her account and processed a refund because the beneficiaries she had listed were shown as eligible in DEERS.  
25.  In a letter to her Member of Congress, dated 30 April 2012, she stated, in part, that she was informed she had been medically retired from the "Active Duty Army" by orders dated 16 March 2011.  On 13 March 2012, she was given a 
15-year retirement letter stating she was now retired to the "Army Reserves," which voided her TRICARE Prime coverage.  She would also have to wait until age 60 to receive any retirement benefits.  She stated, in effect, that she believed she was to be evaluated under the PDES.  She waited from 2009 to 2011.  She was given orders, and, in 2012, she was given a 15-year letter.  

26.  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. 

	a.  Soldiers must be referred to the PDES.  If a treating physician believes a Soldier is unable to perform full military duty or is unlikely to be able to do so within a reasonable period of time – normally 12 months – the Soldier is referred to an MEB.  The MEB is an informal process comprised of at least two physicians who compile, assess, and evaluate the medical history of a Soldier and determine if the Soldier meets or will meet retention standards.  If the Soldier meets retention standards, the Soldier is returned to duty in his or her current MOS.  If the Soldier does not meet retention standards, the case will be referred to a PEB for further disposition and determination of fitness. 

	b.  To be permanently retired for physical disability, a Soldier's disabling condition must have been incurred or aggravated while entitled to basic pay and the condition must be rated as 30% disabling or more.  

	c.  Soldiers of the Reserve Components eligible for PDES processing are those who incur a disability from an injury determined to be the proximate result of performing:  

		(1)  Annual Training, active duty special work, active duty for training (ADT) with or without pay, or temporary tour of active duty under a call or order that specifies a period of 30 days or less, to include full time training duty under Title 32, U.S. Code;

		(2)  Inactive duty training (IDT) including IDT without pay under competent orders; or  

		(3) ADT under Title 10, U.S. Code, section 10148(a). 

27.  Army Regulation 40-501 governs medical fitness standards for retention and separation, including retirement.  Paragraph 9-12 states that Reserve Component (RC) Soldiers with non-duty related 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.  Because these are cases of RC Soldiers with non-duty-related medical conditions, MEBs are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities.  Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the U.S. Army Reserve Command RSC or the HRC Command Surgeon's office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.

28.  Army Regulation 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel) sets policies and procedures for administrative separation of Army National Guard of the United States and USAR enlisted Soldiers.

   a.  Paragraph 15-1k states discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is:

   (1)  granted a waiver under Army Regulation 40-501, as applicable;

      (2)  determined fit for duty under a non-duty-related PEB fitness determination under the provisions of Army Regulation 635-40; or

   	(3)  eligible for transfer to the Retired Reserve under the provisions of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers).
   
   b.  Soldiers who do not meet medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training will be processed as specified in Army Regulation 635-40 if otherwise qualified.

29.  Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 6 prescribes the conditions under which a Soldier may request transfer to the Retired Reserve.  This chapter states, in part, eligible Soldiers must request 


transfer if they are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to have her medical records referred for review under the PDES.

2.  At the time of her discharge from the RA in 2007, she was found to be fit for retention.  After her discharge, she enlisted in the USAR and successfully completed MOS training.  Approximately 1 year after her discharge from the RA, a USAR medical review determined she did not meet medical retention standards.  The available records do not show that the change in her physical condition during the period between her discharge from the RA and the USAR medical review was the proximate result of performing active duty or inactive duty training.  Therefore, there was no basis for referring her to the PDES under the rules for USAR Soldiers.

3.  She was properly notified that she did not meet medical retention standards, and she was properly notified of the options available to her.  She could have elected to have her medical records reviewed by a non-duty-related PEB; however, the evidence of record clearly shows she elected transfer to the Retired Reserve with early qualification to receive retired pay at age 60.  

4.  Per her request, on 16 March 2011, orders were issued placing her in the Retired Reserve.  She was later issued a 15-year letter.  There has been no change in her status since the orders were issued.  She remains assigned to the Retired Reserve, and she will be eligible to receive retired pay upon reaching age 60.  

5.  It is unclear why there was a 2-year delay between the date she requested transfer to the Retired Reserve and the date orders were issued effecting the transfer.  It appears that, during the delay, she was led to believe her case was to be processed through the PDES.  The delay was unfortunate, but does not change the fact that there was no basis for referring her to the PDES.  

6.  In view of the foregoing, there is no basis for granting 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.



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ABCMR Record of Proceedings (cont)                                         AR20120020213



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