IN THE CASE OF:	  

		BOARD DATE:	    8 August 2013

		DOCKET NUMBER:  AR20120022059 


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 his honorable discharge for completion of required active service be changed to medical retirement based on his permanent disabilities.  

2.  He states his chain of command rushed him out of the Army through his expiration term of service (ETS).  He contends they did not allow him to transfer to a Warrior Transition Unit (WTU) when that was recommended by his doctors.  He believes he would have been medically discharged through the WTU.

3.  He provides:

* a self-authored statement
* statements rendered by his wife, mother-in-law, and two men who served with him in the Army
* an orthopedic evaluation
* a memorandum

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.  The applicant enlisted in the Regular Army on 3 October 2005 for a period of three years.  He completed one station unit training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He served in Iraq from 16 August 2006 through 27 October 2007.

3.  The applicant provides an orthopedic evaluation rendered by a medical doctor at the North Country Orthopaedic Group, Watertown, NY, on 24 April 2008 following a referral by medical authorities at Fort Drum, NY.  The doctor noted the following pertinent information:

	a.  Chief complaint:  Seen at the request of Fort Drum to evaluate discomfort in the back of the left leg.

	b.  Present illness:  It had been going on for greater than a year.  He had some baseline soreness prior to that.  About a year ago he was riding in a High-Mobility Multipurpose Wheeled Vehicle (HMMWV) which struck an improvised explosive device (IED) hole and bounced.  The hatch on the HMMWV struck him in the head and since then it has been hurting him quite a bit more.  The pain was radiating down the left leg quite badly about two weeks ago, but over the last couple of weeks it has become less, now it is on and off.  He had physical therapy most recently and that really did not seem to help very much.  He has not received any injections nor was he ever seen at the pain clinic.  He planned on leaving the military in February 2009.  He was not yet in the WTU.  He had no out of country deployments coming up.  His current medications included Tramadol and Flexeril which he took several times per day.  Some days he did not take any if he was not having much discomfort.  Distribution of discomfort in the left extremity when it occurred radiated down the back of the thigh into the proximal lateral calf on the left.

	c.  Physical examination:  All observations were within a normal range with the exceptions of:  His height was 5 feet 9 inches.  His weight was 270 pounds.  Some tenderness in the left paraspinal with palpation in the low back.  No assistive devices for ambulation.

	d.  X-rays:  I reviewed the Magnetic Resonance Imaging (MRI) of the back.  At 4-5 there was a degenerative disk with some bulging.  There was left paracentral component that was somewhat inferiorly migrated south of the disk space.  However, the neuroforamen appeared to be patent and there was only mild stenosis in the canal, but again the disk was quite dark.  Plain films were reviewed, little degenerative change.

	e.  Impression:  L4-5 degenerative disk disease, bulging disk 4-5, intermittent radiculopathy, left lower extremity.

	f.  Recommendations:

		(1)  Weight loss.  He talked to the applicant about weight loss.  Basically, he is 5 feet 9 inches and 270 pounds which means that he is carrying conservatively an extra 70 pounds from what would be more ideal.  Certainly carrying a 50-pound weight would exacerbate his symptoms, so I would think that an element of weight loss could be helpful for him on multiple levels.  I would recommend a referral to a nutritionist by his Fort Drum providers to come up with a strategy that will work for the patient.

		(2)  With respect to the discomfort, he may benefit from epidural injections or other interventions by the pain clinic and I do recommend a referral for epidurals.

		(3)  Additional pain control might be obtained with Lidoderm patches given his superficial tenderness with palpation of the low back.  This may or may not work.  Continuation of his Tramadol and Flexeril.  I have no objections to these as maintained by Fort Drum.

	g.  The doctor opined it was unlikely that the applicant would get complete alleviation of his symptoms from any intervention.  He had a dark disk at 4-5 and a bulging disk at that level and he had the symptoms for greater than a year.  He further opined it was likely that the applicant would be a good candidate for the WTU or a candidate for retraining into a different field other than infantry.  He could probably do well in a more sedentary job field.  Follow up in 10 weeks.

	h.  The doctor noted the applicant wanted something other than the Flexeril and Tramadol that he was taking.  If taken together, they are effective.  However, they are too sedating.  The doctor gave him some samples of Skelaxin and a prescription for Skelaxin which would be a less sedating medication.  He should not take it with Flexeril.

4.  On 15 May 2008, U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Drum, published Orders 136-1045, which reassigned the applicant to the U.S. Army transition point for transition processing with a reporting date of 2 October 2008.  After processing, he was to be released from active duty not by reason of physical disability and assigned to U.S. Army Reserve (USAR) Control Group (Reinforcement) for the completion of his Reserve obligation.

5.  In preparation for his ETS, he underwent a pre-separation medical examination on 3 June 2008.  The following documents were rendered in conjunction with his examination:

	a.  DD Form 2807-1 (Report of Medical History).  In the portion prepared by the applicant, he indicated his current medications included Tylenol 3, Lidoderm, and anxiety medication.  He also indicated he:

* frequently got bronchitis and colds
* frequently got ringing in his right ear
* had an MRI that showed he had a bulge in his disk and a cyst in his back; his back pain was related to his left leg and foot numbness
* had his gall bladder removed at age 13
* had gained 40 pounds in 6 months
* got dizzy spells once in a while
* experienced chest pain May-July 2006
* was currently experiencing and receiving treatment for anxiety and sleep problems
* previously experienced depression and was treated in June 2007
* he was treated for an unknown illness in the emergency room in Iraq 15-21 April 2007

	b.  DD Form 2697 (Report of Medical Assessment), prepared by the applicant.  He indicated:

* his overall health was worse than it was at his last medical assessment/physical examination
* he had not had any illness or injury that caused him to miss duty for longer than 3 days
* he had been seen or treated by a health care provider, admitted to a hospital, or had surgery since his last medical assessment/physical examination
* he had not sought medical care when he injured his back on deployment, but he was currently receiving treatment
* his back problems currently limited his ability to work in his military specialty or required geographic or assignment limitations
* he intended to seek Department of Veterans Affairs (VA) disability for his back and mental conditions

	c.  DD Form 2808 (Report of Medical Examination) completed by the examining physician.  The doctor noted:

		(1)  The applicant was qualified for ETS.

		(2)  Temporary physical limitation profile level 3 for lower extremities

		(3)  No significant or disqualifying defects.

		(4)  Summary of defects and diagnoses:

* Obese, body mass index 39
* Nicotine dependence
* Back pain - on profile (L4-5 disk bulge, L5 slight protrusion)
* Prehypertension/Hyperlipidemia

		(5)  Recommendations - Further specialist examinations indicated:

* Weight reduction
* Smoking cessation
* Pain management as scheduled
* Weight reduction - low cholesterol and low fat diet, 30 minutes of exercise daily, reduce smoking
* Monthly self testicular exam

6.  The applicant provides a memorandum rendered by his squadron's physician assistant (PA) on 17 June 2008.  The PA informed the applicant's company commander that the applicant was currently receiving a regimen of lower back injections at a local Pain Management Clinic in Watertown.  The series of injections requires repeated treatment in order to get maximum benefit.  Sending the applicant away from Fort Drum for any training would only stall this lengthy process and would likely require him to start the injection process again upon his return.  The PA opined the applicant would likely recover without need for a permanent profile if he was able to be treated properly.  The goal of this therapy was to return him to full active duty as soon as possible so he could be available for the unit's next deployment.

7.  His record contains a DD Form 4 (Enlist/Reenlistment Document - Armed Forces of the United States) which shows he enlisted in the Tennessee Army National Guard (TNARNG) on 28 August 2008 for a period of 4 years, 11 months, and 18 days (to be effective upon his release from active duty).

8.  His record contains a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 5 September 2008, wherein he indicated he was separating voluntarily.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active duty under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 4, upon completion of required active service on 2 October 2008.  His service was characterized as honorable.

10.  His record contains Departments of the Army and the Air Force, Joint Force Headquarters, Tennessee National Guard, Nashville, TN, Orders 296-859, dated 22 October 2008, which discharged him from the ARNG and assigned him to USAR Control Group (Reinforcement), effective 21 October 2008.

11.  His record contains an NGB Form 22 (Departments of the Army and the Air Force, National Guard Bureau - Report of Separation and Record of Service) which shows he was discharged from the ARNG under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management) due to an erroneous enlistment, reenlistment or extension.  This form also shows he was assigned to the USAR Control Group (Reinforcement) for the completion of his remaining statutory Reserve obligation.

12.  There is no evidence in the available records which shows the applicant was presented to a Medical Evaluation Board or that a fitness for duty review was conducted prior to discharge.

13.  The applicant provides four statements:

	a.  A self-authored statement wherein he states during deployment to Iraq between 2006 and 2007, he was hit by multiple IEDs, injured his back and suffered traumatic brain injury resulting in severe migraine headaches and memory loss.  He has been through multiple firefights and has seen many dead and dismembered men, women and children.  Some of those men were platoon buddies.  As a result he also suffers from post-traumatic stress disorder (PTSD).
However, his back pain was the main cause of pain initially, but as an infantryman, he did not want to show his leaders or peers that he was in pain, as he didn't want to let them down.

		(1)  He finally informed his leadership about his pain and they told him he could seek medical attention once the returned to Fort Drum.  By the time he returned to Fort Drum he had a new chain of command because his original leadership had been captured and killed in Iraq.  The new leaders were not sympathetic because they did not deploy and they told him his back would be fine and that he did not need to go to sick call.  Over a month later, he was finally allowed to see a doctor and it was discovered that he suffered from degenerative disk disease and he had a bulging disk.  He was placed on a restrictive profile and he was receiving injection treatments in his lower back to ease the pain.  He received a letter from a doctor saying he should remain at Fort Drum to continue treatment and another letter from a mental health doctor saying he was not fit to deploy anywhere (foreign or domestic) due to his PTSD and a third letter from a doctor referring him to the WTU.  However, despite these conditions, his chain of command forced him to deploy to West Point for over 2 months anyway.

		(2)  When he spoke to his first sergeant (1SG) about being assigned to the WTU they said his ETS date would come long before the WTU would medically discharge him so, they denied his transfer.  The 1SG advised him to enlist in the ARNG so he could continue pursuing medical treatment.  Based upon this advice, he enlisted in the ARNG, but before he had an opportunity to report, he received a phone call from his ARNG unit notifying him that due to his medical conditions, his enlistment contract was terminated and they wished him good luck with receiving treatment from the VA.

		(3)  He believes his unit rushed him out of the Army without affording him an opportunity to receive proper consideration for treatment or medical separation.  He attests that what happened to him was a gross injustice and he should have been referred to an MEB and given a medical retirement as his doctors recommended on active duty.  He is married with children and his disabilities are physically, mentally, emotionally, and financially burdensome for his family because he is unable to work or provide healthcare insurance for them.

	b.  A statement from his wife wherein she echoes his experiences and conditions as expressed in his self-authored statement.  She also attested he was obviously in constant pain and suffered from nightmares and insomnia which caused him to spend many nights pacing and showering repeatedly in an effort to relieve the pain in his leg and back.

	c.  A statement from his mother-in-law (who is an intensive care unit nurse) wherein she echoes her daughter's observations and concerns in addition to providing comments on the dramatic changes she has observed in the applicant's personality and behavior since his return from deployment to Iraq.  She describes him as a quiet and awkward man who seemed to have much rage inside of him.  She noted that he often drank alone and to excess.  He was very short with her grandchildren which frightened her.  She believes he came home from Iraq disabled and has remained so.
	d.  A statement from a man who served with him in 2007 and 2008, after his Iraq tour up until his separation from the Army.  The applicant's severe back problems that he had suffered while in the line of duty was well known throughout the platoon and the company level leadership.  He was supposed to go to the WTU, but the chain of command denied him and instead had him ETS because his ETS date was sooner that if they were to have him medically boarded.  The leadership at the time did as they pleased without regard for Army regulation or standards.

	e.  A statement from a man who served with him in Iraq from August 2006 through October 2007 and at Fort Drum before and after their extended deployment.  He described the hardships they endured in Iraq and the noticeable impact that it was having on the applicant both mentally and physically.  He echoed the previously-described denial of the applicant's transfer to the WTU by the chain of command.  He also noted the ARNG quickly realized the applicant was unfit for service and told him not to even bother reporting for duty.  He states the applicant heeded their advice to seek help from the VA and as a result he is currently rated 100% disabled due to a litany of confirmed physical and mental ailments.

14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.

15.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

16.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on part of the Army.

17.  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 incurred while entitled to basic pay.  It states that 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.  

18.  Department of the Army WTU Consolidated Guidance prescribes the policy and procedures for the administration of Soldiers assigned/attached to Warrior Transition Units.  The stated intent of the WTU is to provide Soldiers with optimal medical benefit, expeditious and comprehensive personnel and administrative processing, while receiving medical care.  The Army will take care of its Soldiers through high quality, expert medical care.  For those who will leave the Army, the Army will administratively process them with speed and compassion.  The Army will assist with transitioning Soldiers' medical needs to the VA for follow-on care.

19.  The Triad of Leadership (Senior Commanders (CDR)/Command Sergeants Major (CSMs), Medical Treatment Facility CDRs/CSMs; and WTU CDRs/CSMs/First Sergeants (1SGs)) review all Active Component Soldiers who meet the following eligibility criteria and will determine disposition:

	a.  Soldier has a temporary profile, or is anticipated to receive a profile, for more than 6 months with duty limitations that preclude the Soldier from training for or contributing to unit mission accomplishment.  Medical non-availability is not an automatic entrance into the WTU. 

	b.  The acuity of the wound, illness, or injury requires clinical case management in order to ensure appropriate, timely, and effective utilization and access to healthcare services to support healing and rehabilitation.  The Triad of Leadership will review all Soldiers who meet eligibility criteria and will determine disposition as follows:

		(1)  Soldiers with complex medical conditions that require extensive case management qualify for assignment or attachment to the WTU.

		(2)  Soldiers with medical conditions that do not require case management should remain in their units and utilize standard healthcare system and access to care standards. 

DISCUSSION AND CONCLUSIONS:

1.  Although evidence shows the applicant was diagnosed and treated for several medical conditions during his period of service, there is no evidence to show he had any medically unfitting disability which required physical disability processing.  There is no evidence to show the applicant could not perform his duties due to any medical condition.  In fact, the evidence he provides shows the same physician who opined he was a potential candidate for assignment to the WTU also opined he would do well in a less physically demanding MOS if retained in the Army. 

2.  In the absence of evidence to the contrary, it is presumed that the Triad of Leadership reviewed the applicant's medical condition in accordance with Department of the Army WTU Consolidated Guidance and determined the complexity of his condition did not require extensive case management.  There is insufficient evidence to show his medical condition was acute.  It appears he would have received his temporary profile around 28 April 2008, less than 
6 months before his scheduled separation date.  Therefore, he did not meet the eligibility criteria for assignment or attachment to the WTU and was retained in his unit where he was allowed to utilize standard healthcare system and access to care standards until his separation date, at which time he would be allowed to continue receiving healthcare from the VA.

3.  The law provides for retirement of a member who has at least 20 years of service or a disability that is rated at least 30 percent.  Since he was not assigned a combined disability rating of at least 30%, he did not meet the requirements for a medical retirement.

4.  The evidence of record shows the applicant's separation upon completion of required active service was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Therefore, there is no basis for changing his honorable discharge to a medical retirement.

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)                                         AR20120022059



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ABCMR Record of Proceedings (cont)                                         AR20120022059



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