BOARD DATE:	6 August 2013  

		DOCKET NUMBER:  AR20120021716 


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, extension on active duty for physical disability processing which may have resulted in a medical retirement.

2.  He states he should have been extended on active duty for the purpose of disability processing.  He adds he is concerned the Army is disregarding his mental and physical disabilities over their belief that he was a substandard Soldier.  He opines he was as good of a Soldier as he could be given his mental and physical disabilities.  He states he has tried through his chain of command and other agencies to gain a medical retirement, but was denied the opportunity to extend in the U.S. Army for that purpose.

3.  He provides the following:

* Self-authored statement
* Orders T-12-24-241877, dated 7 December 2012
* Memoranda, Subject:  Request for Medical Extension Beyond Expiration of Term of Service (ETS), dated 26 May 2011 and 31 May 2011
* DD Form 2870 (Authorization for Disclosure of Medical or Dental Information), dated 2 November 2012
* DA Forms 3349 (Physical Profile), dated 30 March 2011 and 8 June 2011
* Memorandum, Subject:  Request for Medical Extension Beyond Scheduled Separation/Retirement Date, dated 2 May 2011
* Affidavit, dated 2 May 2011
* Progress Notes
* Joint Department of Defense (DoD)/Department of Veterans Affairs (VA) Disability Evaluation Pilot Referral
* Advanced Orthopaedic Associates (AOA) letters, dated 16 June 2011 and 29 June 2011
* Congressional correspondence
* Excerpts from Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) and Army Regulation 40-400 (Patient Administration)  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 January 2008 for 3 years and 22 weeks, establishing an ETS of 5 June 2011.  He was trained in military occupational specialty (MOS) 91L (Construction Equipment Repairer).  He served in Iraq from 25 May 2010 to 29 June 2010.

2.  On 30 March 2011, he received a P3 profile for an injury listed as chronic elbow and wrist pain with multiple surgeries expected.  In item 7 (Does the Soldier meet retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness)?) is checked "No Needs MEB."  The profile limited his ability to:

* Carry and fire individual assigned weapon
* Evade direct and indirect fire
* Wear body armor for at least 12 hours
* Wear load bearing equipment for at least 12 hours per day
* Move 40 pounds while wearing usual protective gear
* Live in an austere environment without worsening the medical condition
* 2 mile run
* Army Physical Fitness Test (APFT) sit-ups
* APFT push ups
* APFT swim
* APFT bike

3.  On 2 May 2011, the Chief, Patient Administration Division, requested the applicant be retained on active duty for 6 months beyond his ETS in accordance with Army Regulation 635-200, paragraph 1-26.  The applicant signed an affidavit agreeing to the request.

4.  On 26 May 2011, in a memorandum Subject:  Request for Medical Extension Beyond ETS, the battalion commander recommended disapproval.  He stated the applicant was a substandard performer and had not earned the right to be medically retired as part of an MEB process.  He said the applicant had consistently avoided work of any type, and he should not be extended past his ETS.  He also said that once the applicant leaves the Army at his ETS date, he could receive further treatment through benefits provided by the VA.  

5.  On 31 May 2011, the brigade commander disapproved the applicant's request to be retained on active duty beyond his normal ETS.  He said the applicant would start clearing immediately and seek medical treatment through the VA.

6.  His profile dated 8 June 2011 shows no limitations with no recommendation for an MEB.  In his comments, the profiling officer stated that on 14 March 2011, a flexor pronator facial release of the applicant's right elbow provided over 85 percent (%) relief of paresthesias per orthopedic note dated 28 April 2011.  A left facia release was recommended and the Soldier was considering the release.  He said the Soldier was originally scheduled for an MEB, but was not a candidate since a recent surgery corrected his right elbow.  He was given 6 weeks postoperative and only one surgery was currently recommended for his other elbow.  The Soldier was cleared to ETS and to seek his last surgery through the VA system.  A copy of the orthopedic note was not contained in his record and the applicant did not provide a copy.

7.  On 16 June 2011, the applicant's medical doctor from AOA informed the MEB Outreach Counsel that the applicant's postoperative course was complicated by inappropriate and premature heavy repetitive lifting of 40-pound bags over the last few weeks.  He said at the applicant's last office visit on 28 April 2011, he was given a lifting restriction of no more than 10 pounds on the right side.  Unfortunately when the patient was required to lift a heavy bag, he had a burning dysesthesia on the medial aspect of the right elbow in the operative area.  He opined that the applicant needed a 3-month period of absolute rest for the right upper extremity.  

8.  The applicant's Progress Notes, dated 28 June 2011, show he was initially diagnosed as follows:

* AXIS I - Bipolar I Disorder, severe, depressed with psychotic features
* AXIS III - Major Medical Illnesses, status post right ulnar nerve anterior 
* AXIS IV - Psychosocial and environmental problems, impending discharge from the Army, chronic pain, impending unemployment 

9.  The staff physician provided a history of the applicant's illness.  She stated he reported feeling depressed about his discharge from the Army rather than being given an MEB and had thoughts of suicide again.  His past psychiatric history indicated he was hospitalized for two weeks after a suicide attempt on 3 July 2009.  He had been seen at Fort Riley for outpatient therapy and has had substance abuse treatment.

	a.  His mental status examination indicated he was alert and oriented to place, person, date and situation.  His mood was depressed, his affect was congruent, and thought process circumstantial.  There were no loose associations or flight of ideas.  He denied any type of hallucinations, grandiose delusions, but reported paranoid delusions.  His judgment and insight were fair and his intelligence was estimated as average.  He reported suicidal ideation, but denied plans or intent.  He showed normal psychomotor activity and no unusual movements or mannerisms were noted.  

   b.  The initial treatment plan was for him to return to the clinic doctor in two weeks and to begin aripiprazole for mood stability.  He was given a handout on aripiprazole and a pamphlet on bipolar disorder.  He was instructed that he could call the VA 24 hours a day and to come in the emergency room at any time.  The applicant was advised to take medications and instructed not to stop or change medications without consulting his doctor.  

10.  In a letter dated 28 June 2011, addressed to the Commander, 4th Infantry Brigade Combat Team, 1st Infantry Division, the applicant requested his ETS be extended until after he healed from surgery and after the completion of an MEB/Physical Evaluation Board (PEB).  As justification for his request, he stated the following:  

* In June 2009, he was a mental health patient for a number of months for psychological problems to include being diagnosed as bipolar 
* On 6 July 2009, he was hospitalized in a mental health ward after a suicide attempt
* In August 2010, he was seen for problems with his elbow and wrist
* On 14 March 2011, he underwent surgery on his elbow and subsequently received a P3 profile
* On 13 April 2011, he was contacted by the Physical Evaluation Board Liaison Officer (PEBLO) that his case would be processed through an MEB 
* On 31 May 2011, he was notified of the denial of his extension past his  ETS request for the purpose of MEB processing
* He contacted the Inspector General, but was unsuccessful in getting them to take any action
* He was extended 30 days past ETS for separation processing
* During his ETS processing, he requested his exit physical be conducted by a medical doctor, but his request was treated as if he refused the physical
* On 28 June 2011, he requested an exit physical, but the request was denied citing there was no evidence that his injury arose through military service
* The applicant stated a previous line of duty (LOD) investigation concluded that his injury arose in the LOD  

11.  In a letter to the Deputy Commander, Irwin Army Community Hospital, Fort Riley, KS, dated 29 June 2011, the applicant's medical doctor from AOA reiterated the information provided to the MEB Outreach Counsel (paragraph 7 this Record of Proceedings).  Additionally, he stated he understood that the applicant would be separating on 5 July 2011 and from a medical standpoint he believed it would be appropriate for him to be extended on active duty.  This extension would be to have the appropriate follow-up care for the right upper extremity.  In the alternative, if extension on active duty was not possible, he recommended the applicant be permitted to have his follow-up care conducted at the Wichita VA.

12.  The applicant's Army Military Human Resource Record (AMHRR) is void of an ETS physical or a statement waiving an ETS physical.  Additionally, there is no medical evidence or an LOD investigation that indicates he reinjured his elbow after his surgery.  Further, he did not provide his health record and his available record is void of any documents from the PEBLO.

13.  On 5 July 2011, he was honorably released from active duty after completing 3 years, 6 months, and 3 days of active duty service.

14.  On 22 May 2012, the applicant's application to the Army Board for Correction of Military Records (ABCMR) was returned without action based on insufficient supporting documentation.  On 6 November 2012, the applicant stated, in effect, that he was uncertain of what documentation was needed since he had provided medical evidence to support his claim.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 1-26 states a Soldier may only be considered for retention past the set release date when one or both of the following apply:

   a.  Continued health care is required (must be in a in-hospital status but not necessarily occupying a bed).

   b.  Physical disability processing is required or has been initiated.  Soldiers determined medically fit for retention or separation will not be retained past the set release date.
16.  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. 

   a.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTF's) who are treating Soldiers may initiate action to evaluate the Soldier's physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.

   b.  MEB's are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

   c.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation is an indication the individual is fit.

   d.  Appendix B, B-3b states many medical and surgical procedures are performed when a Soldier is nearing the end of their military career.  These are intended to improve a Soldier's health, not to render him unfit.  Corrective treatment and convalescence will not be considered as a valid contribution to disability unless unexpected adverse effects occur that are disabling or contribute to disability and are ratable.

17.  Title 10, U.S. Code, section 1145 provides guidance on health benefits.

	a.  Paragraph (5)(A) provides the Secretary concerned shall require a member of the armed forces scheduled to be separated from active duty to undergo a physical examination immediately before that separation.  The physical examination shall be conducted in accordance with regulations prescribed by the Secretary of Defense.

	b.  Paragraph (5)(B) states notwithstanding subparagraph (A), if a member of the armed forces scheduled to be separated from active duty has otherwise undergone a physical examination within 12 months before the scheduled date of separation from active duty, the requirement for a physical examination under subparagraph (A) may be waived in accordance with regulations prescribed under this paragraph.  Such regulations shall require that such a waiver may be granted only with the consent of the member and with the concurrence of the member's unit commander.

   c.  Paragraph (6)(A) states the Secretary of Defense shall, in consultation with the Secretary of Veterans Affairs ensure that appropriate actions are taken to assist a member of the armed forces who, as a result of a medical examination under paragraph (5), receives an indication for a referral for follow up treatment from the health care provider who performs the examination.  Assistance provided to a member under paragraph shall include information regarding any appropriate referral for the care, treatment, and other services that the Secretary of Veterans Affairs may provide to such member under any other provision of law.
   
18.  Army Regulation 40-501 states that a Soldier separating from the Army will be given a medical interview using DD Form 2697 (Report of Medical Assessment).  The interview will be conducted by a physician, physician assistant, or nurse practitioner to document any complaints or potential service–related (incurred or aggravated) illness or injury.  The Soldier must acknowledge with his or her signature in block 19 of the form that the information provided is true and complete.  This form will be filed in the health record.

19.  The same regulation states Soldiers separating from the Army will receive a separation medical examination if the Soldier requests it, or if, on review of the medical records or the DD Form 2697, a physician, a physician assistant, or a nurse practitioner feels an examination is appropriate.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant maintains he should have been extended on active duty for the purpose of disability processing which may have resulted in a medical retirement.

2.  The evidence of record shows that on 30 March 2011, he received a P3 profile for chronic elbow and wrist pain which limited his ability to perform the basic standards of Army Regulation 40-501.  Based on his limitations, he was recommended for an MEB.  


3.  In May 2011, the Chief, Patient Administration Division requested the applicant be extended past his separation date in accordance with Army Regulation 635-200, paragraph 1-26.  The regulation she cited pertains to Soldiers requiring continuous health care and/or physical disability processing.  

4.  The evidence of record shows on 8 June 2011, he was issued a profile with no limitations and no recommendation for an MEB.  In the profile comments, the profiling officer said the applicant had 85% of relief of paresthesia as stated in an orthopedic note, dated 28 April 2011.  A copy of the note was not provided; however, the profiling officer stated the applicant was originally scheduled for an MEB but was no longer a candidate since surgery corrected his right elbow.  He further stated the applicant was cleared to ETS and to seek his last surgery through the VA system.  The evidence shows the applicant did not require continuous health care and was not being processed through the physical disability system.  Based on this information, it appears his chain of command denied his request citing he could receive further treatment through VA benefits.

5.  The applicant maintains he requested an exit physical be conducted by a medical doctor, but his request was treated as if he refused the physical.  As stated in Title 10, U.S. Code, section 1145, a physical examination is required for those Soldiers scheduled to be separated from active duty unless the Soldier has undergone a physical examination within 12 months before the scheduled date of separation.  In those cases a waiver may be granted only with the consent of the member and with the concurrence of the member's unit commander.  Additionally, Army Regulation 40-501, requires a medical assessment to be completed and filed in the applicant's health record.  In the absence of the applicant's health records or documentation to substantiate his contention the presumption of regularity must be applied. 

6.  There is no evidence and the applicant has not provided any to demonstrate an injustice in the medical treatment he received in service or any evidence to show that he was denied due process.  The evidence shows the sole reason he was originally recommended for an MEB was for chronic wrist and elbow pain which was corrected after surgery with a recommendation for follow-up care.  As provided by his AOA doctor, the profiling officer, as well as the regulatory guidance, his follow-up care could be resolved through the VA.  Additionally, since he had been medically cleared to ETS, there was no reason to extend him on active duty.

7.  In view of the evidence in this case, there is no basis for granting his 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.



ABCMR Record of Proceedings (cont)                                         AR20120021716





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ABCMR Record of Proceedings (cont)                                         AR20120021716



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