IN THE CASE OF:	  

		BOARD DATE:	  6 August 2013  

		DOCKET NUMBER:  AR20120021708 


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 she be medically discharged from the Georgia Army National Guard (GAARNG).

2.  The applicant states she was not given the opportunity to go through the Medical Evaluation Board (MEB) process.  She also states she has a list of health issues, was never educated on the Temporary Disability Retired List (TDRL), and none of her issues were submitted to an MEB/physical evaluation board (PEB) for evaluation.  She did not incur any "line of duties" while serving.  She has a permanent profile stating she was not fit and should go before a PEB.  She had a total of 8 years of active duty with one tour in Iraq.  She was found unfit due to sleep apnea and knee pain, but she would have like to have had a board review all her illnesses that occurred while serving as a National Guard member.  She was told that since she did not have any "line of duties" it would be a difficult process and even if she could it would be a 2-year process or longer for her outcome.  She requests a review of her medical records to determine if there is a sufficient basis for an appeal.

3.  The applicant provides her military and Department of Veterans Affairs (VA) medical records.

CONSIDERATION OF EVIDENCE:

1.  On 31 May 1999, the applicant enlisted in the GAARNG with more than 7 years of prior active service.

2.  She submits several medical documents indicating she was seen by medical personnel for a variety of medical issues.

3.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 3 March 1995, shows she was diagnosed with strained ligaments in her left knee from stepping in a hole while in the field about 1 week earlier.

4.  An SF 600, dated 3 January 1996, shows she was seen for a sprained knee which she twisted while playing basketball the previous day.

5.  An SF 600 shows in January 1996 she was seen for left knee pain for which she had been seen 2 weeks prior.  She stated the injury occurred when she twisted her knee while playing basketball.  The knee had been too swollen to be examined by the physician at that time.

6.  A DA Form 3349 (Physical Profile) shows on 11 May 1999 she was given a temporary profile due to her knee condition.  The profile numerical designation of "temporary 2" was assigned for lower extremities with an expiration date of 22 June 1999.  All other functional capacities were assigned a numerical designation of "1."

7.  An SF 600 shows that in 2003 she was seen for left knee pain she had suffered for 2 days that she thought resulted from stepping "the wrong way."  She also stated she had been having knee pain off and on for 11 years, since she joined the Army.

8.  A VA Consultation Sheet shows a full night study for sleep disorders was performed on the applicant on 7 December 2006.  The document shows the results of the study were positive for obstructive sleep apnea.

9.  A DA Form 3349, certified on 24 December 2010, shows she was issued a permanent profile for sleep apnea (3-41c) and degenerative joint disease in her left knee (status post meniscus injury (1996)).  The profile assigned her a numerical designation of "2" for lower extremities.  It further shows in block 4c that she did not need a PEB.

10.  On 3 August 2011, she was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

11.  A GAARNG memorandum addressed to her, subject: Medical Fitness Standards for Retention, dated 18 January 2012, notified her that under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), her medical condition and/or physical defects had been determined to disqualify her for military service.  Her medical disqualification was listed as "Chapter 3-41(c) General and miscellaneous conditions and defects."

12.  A memorandum from her to the Commander, 248th Medical Company, dated 18 January 2012, shows she acknowledged notification of her medical disqualification for further retention in the active Reserve.  She also acknowledged she had been informed of her rights in accordance with Department of Defense (DoD) Instruction 1332.38 (Physical Disability Evaluation).  She voluntarily elected transfer to the Retired Reserve.  Other options available were discharge from the Army Reserve, a non-duty related PEB (if she believed she could be found fit), or transfer to the Standby Reserve inactive list (if her medical defects were considered to be remedial within 1 year). 

13.  A review of her medical records failed to reveal any approved line of duty investigations. 

14.  A National Guard Bureau Form 22 (Report of Separation and Record of Service) shows on 2 April 2012 she was transferred from the ARNG to the Retired Reserve.  The reason given was National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35l(8), medically unfit for retention per Army Regulation 40-501.  Orders 094-799, issued by the Adjutant General, State of Georgia, dated 3 April 2012, confirm this action.
 
15.  Army Regulation 40-501 governs medical fitness for retention and separation, including retirement.  Chapter 7 states the physical profile serial system is based primarily upon the body systems and their relation to military duties.  Four numerical designations are used to reflect different levels of functional capacity.  The conditions listed in chapter 3 and the Soldier’s functional limitations, rather than the numerical designator of the profile, will be the determining factors for MEB processing.

* An individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness
* A physical profile designator of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect that may require some activity limitations
* A profile containing one or more numerical designators of "3" signifies that the individual has one or more medical conditions or physical defects that may require significant limitations
* A profile serial containing one or more numerical designators of "4" indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited
16.  Army Regulation 635-40  (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61, and DOD Directive 1332.18.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  It contains the rules and policies for disability processing of Reserve Component (RC) Soldiers on active duty or on inactive duty for training.  It states an RC Soldier will be referred for medical processing through the Army PDES when a commander or other proper authority believes a Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  It further states the mere presence of 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

17.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military occupational specialty with the medically-disqualifying condition.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

18.  DoD Instruction 1332.38, E3.P1.3 states the physical disability evaluation element of the DES shall determine the fitness of Service members with medical impairments to perform their military duties; and for members determined unfit for duty-related impairments, their entitlement to benefits under chapter 61 of Title 10, U.S. Code. 

19.  Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty.  However, the disability must have been the proximate result of performing military duty.  It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  Medical documents show she had twisted, sprained, or otherwise injured her left knee twice while on active duty and once after her enlistment in the GAARNG.  However, she would have passed an enlistment physical to join the GAARNG in 1999 and she continued with her military service for several years after these injuries, which indicates she was fit to perform her duties during that time.

2.  In 2006, she was diagnosed with obstructive sleep apnea.  By her own admission, her record is void of any approved line of duty investigation related to sleep apnea or her knee condition.  She was issued a permanent profile for sleep apnea (3-41c) and degenerative joint disease in her left knee.  It shows a profile numerical designation of "2" in lower extremities.  This profile also states that she did not need a PEB.  Further, she could have presented records to show that her conditions were incurred or aggravated by active service.  She elected to be transferred to the Retired Reserve.  There is no evidence she had a medical condition that warranted processing through the PDES.  Therefore, there is an insufficient basis for granting her relief.

3.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.

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.

ABCMR Record of Proceedings (cont)                                         AR20120021708



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ABCMR Record of Proceedings (cont)                                         AR20120021708



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