IN THE CASE OF:	   

		BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20120020795 


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, change of his honorable discharge to a medical discharge.

2.  The applicant states, in effect, he was discharged because of an injury he suffered while in basic training.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 261 (Report of Investigation, Line of Duty and Misconduct Status), dated 15 September 2004
* Orders 339-1028, issued by Joint Forces Headquarters, California Army National Guard (CAARNG), dated 5 December 2005
* a letter from the Department of Veterans Affairs (VA), Health Eligibility Center, Atlanta, GA, dated 23 October 2012 

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.  On 23 August 2002, he enlisted in the CAARNG.  He was ordered to initial active duty for training (IADT) at Fort Leonard Wood, MO, to report on 
22 January 2003.  He completed basic and advanced individual training and he was awarded military occupational specialty (MOS) 54B (Chemical Operations Specialist).

3.  On 13 June 2003, he was released from IADT and returned to his CAARNG unit.

4.  A DA Form 2173, dated 19 August 2004, reports that on 21 March 2003, the applicant injured his left foot during training.

	a.  The nature and extent of the injury is shown as "undisplaced transverse fracture of the distal 3rd metatarsal."

	b.  He was on IADT that began on 21 January and ended on 13 June 2003.

	c.  He was taking a physical fitness test and while doing push-ups he felt his left foot crack.  During the run event he felt his foot give way again.  After the event he went to sick call where he learned that he had broken his foot.

	d.  A formal line of duty (LOD) was required.

	e.  The injury was considered to have been incurred in LOD.

5.  The applicant provided a DD Form 261, dated 15 September 2004.  The report found:

	a.  The applicant's injury occurred while he was taking his Army physical fitness test (APFT) during IADT and he broke his left foot.

	b.  He was diagnosed with a fracture of 5th metatarsal in his left foot.  He also developed altered gait and a medial meniscal tear in his left knee.

	c.  He completed all events as he was encouraged to by his drill sergeant so he could complete basic training.  He was treated on active duty and an LOD was completed by Fort Leonard Wood.  However, since his return to the CAARNG he had continued to experience pain.  Although he completed the APFT with his unit in January 2004, he was still in pain and appeared to have suffered additional injury to his left knee and was now unable work his civilian job.

	d.  The finding of in LOD was approved by the appointing authority and the reviewing authority on 20 October 2004.

	e.  Final approval of in LOD was provided by the National Guard Bureau (NGB) on 10 November 2004 for:

* left metatarsal stress fracture with malunion
* left medial meniscus tear
* left retropatellar pain syndrome
* lumbosacral strain, secondary to antalgic gait (from metatarsal stress 	fractures)

	f.  NGB noted the applicant should be referred to the nearest Army orthopedic surgeon for evaluation and treatment.  In addition, he should be referred to a medical evaluation board (MEB) and an MOS Medical Retention Board (MMRB).

6.  On 30 November 2005, he was honorably discharged from the CAARNG and the Reserve of the Army by reason of being medically unfit for retention standards.

7.  He provided a letter from the VA, dated 23 October 2012.  The letter states he is 30 percent service-connected.  However, the letter does not specify what disabilities are rated.

8.  In the processing of this case, on 20 March 2013, an advisory opinion was received from the Personnel Policy Division, NGB.  The advisory official stated:

	a.  The final approval of the applicant's LOD clearly stated the applicant should have been referred to the nearest Army orthopedic surgeon for evaluation and treatment and referred to an MEB and an MMRB for evaluation.  There is no evidence the CAARNG completed this action.

	b.  The CAARNG has not been able to determine if the applicant went before an MEB and that the medically unfit discharge was a result of his approved LOD or non-LOD.

	c.  Recommend the applicant be provided a physical evaluation through the use of invitational travel orders.  In the event the applicant requires an MEB and physical evaluation board (PEB) he would be afforded all of the benefits normally afforded to individuals on active duty who are undergoing an MEB and/or PEB.

9.  On 20 March 2013, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not respond.

10.  Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Paragraph 3–14 (Miscellaneous conditions of the extremities) states malunion of fractures, when, after appropriate treatment, there is more than moderate malunion with marked deformity and more than moderate loss of function is a cause for referral to an MEB.  

11.  National Guard Regulation 600-200 (Enlisted Personnel Management) governs the policies and procedures for assigning, attaching, removing, and transferring enlisted Soldiers of the ARNG/ARNGUS.  Chapter 8 of the regulation in effect at the time provided for the discharge of Soldiers deemed medically unfit for retention per Army Regulation 40-501 and National Guard Regulation 40-501 (Standards of Medical Fitness – Army National Guard).

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that govern the evaluation for 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 the following LOD criteria to be eligible to receive retirement and severance pay benefits:

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

	b.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

	c.  Chapter 8 contains the rules and policies for disability processing of Reserve Component (RC) Soldiers.  It states that a RC Soldier will be referred for medical processing through the PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  It also specifies that this fitness determination is different from a LOD determination, which establishes only whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a casual relationship between the disability and the required military duty.

DISCUSSION AND CONCLUSIONS:

1.  The formal LOD investigation clearly shows his injury to be in LOD and he was to be referred to an orthopedic surgeon for evaluation and treatment and referred to an MEB.  However, there is no evidence this happened and, as stated in the NGB advisory opinion, the CAARNG is unable to determine if he was referred to an MEB.  The CAARNG was also unable to determine the reason for the medically unfit discharge.

2.  Accordingly, the Department of the Army Office of the Surgeon General should take appropriate action to issue the applicant invitational travel orders for the purpose of undergoing the appropriate medical processing and evaluations at an appropriate medical facility that has the capability to properly evaluate the applicant’s medical condition.

3.  Once a determination is made as to the appropriate disposition of the applicant’s medical condition under the PDES, the applicant will be separated in accordance with the applicable laws and regulations, with entitlement to all back pay and allowances and/or retired pay due him, if any.

4.  In the event that a determination is made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his original discharge and to issue the appropriate separation retroactive to his original separation date.

5.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by the OTSG contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant.

	a.  In the event a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.

	b.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

	c.  Should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his 30 November 2005 separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay and/or severance pay, less any entitlements already received.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 

denial of so much of the application that pertains to changing his discharge without undergoing evaluation under the PDES.



      __________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)                                         AR20120020795



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020795



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1