IN THE CASE OF:	

		BOARD DATE:	  5 September 2013

		DOCKET NUMBER:  AR20120022194 


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 reconsideration of an earlier request that his medical records be reviewed by the appropriate board for an accurate determination of his condition at the time of his discharge.

2.  The applicant states:

* it is clear why the Board denied his earlier request; however, there was a miscommunication as to what he was requesting
* he was improperly discharged and the West Virginia Army National Guard (WVARNG) did not follow the proper regulatory guidelines
* he was not afforded the proper opportunity to obtain disability benefits for an injury that occurred in the line of duty (LOD)
* he was serving on active duty for the WVARNG at the time of his injury
* his team went state-wide teaching wise choices, anti-drugs, and bullying and as a reward, they would take to the school a rock climbing wall and/or inflatable obstacle course for team building
* on 1 April 2008, he and three other Soldiers pushed a 700 pound inflatable obstacle course with a heavy-duty dolly weighing 175 pounds, up a flight of stairs, but it slipped and he and another Soldier tried to keep it from rolling back on them
* the next day an LOD was initiated on the LOD Medical Operational Data System and was sent to the unit for completion
* he went to his primary care provider at the Living Well Medical Center for treatment, but the pain continued
* his primary care provider sent him to Mountaineer Imaging to get x-rays and the radiologist report shows he had lumbosacral spine series 
* he was sent to physical therapy; however, his house was broken into which resulted in him getting shot in both legs
* the bullet went through his left leg into his right leg causing him to discontinue therapy until his legs healed
* he was away from his unit for about 5 to 7 months and he had plans to resume therapy in September 2010; however, his mother died and he had to go on emergency leave
* on 30 September 2010, he returned to his unit to complete orders paperwork for the new fiscal year; however, he was advised he had 30 days left in the Guard and he was getting kicked out
* the State Surgeon General called him and read the regulation to him and faxed paperwork for him to sign, which stated in effect, if he appealed the decision, he would have to use his own money to show evidence to the contrary
* he had no money due to paying for his mother's funeral so he signed the paperwork while still inquiring about his LOD
* he questions how he could have been denied referral to a physical evaluation board (PEB) or Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) when he was on orders, incurred an injury in the line of duty, and was given a permanent profile
* he served as a combat veteran and only desires the chance to go through the proper discharge procedures

3.  The applicant provides:

* self-authored statements
* Monster Mover Heavy Duty Dolly description
* photograph of an inflatable obstacle course
* LOD case tracking sheet
* letter, Mountaineer Imaging, dated 29 April 2008
* emails
* statements from his first sergeant
* National Guard Bureau advisory opinion, dated 5 July 2012
* Progress Notes
* DA Form 3349 (Physical Profile), dated 29 September 2010
* Army Physical Disability Evaluation System (PDES) Process extracts
* compact disc (CD) with x-rays of his lower spine



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110016871, on 21 August 2012.

2.  The applicant provides clarification with regard to his earlier request, new arguments, medical extracts, and emails not previously considered by the Board and as such warrant consideration by the Board.

3.  On 27 March 1995, the applicant enlisted in the U.S. Army Reserve (USAR).  
He was awarded and held MOS 63B (Light Wheel Vehicle Mechanic).  He participated in unit training in 1996 and 1997.  On 24 October 1999, he was discharged from the USAR.

4.  On 25 October 1999, he enlisted in the WVARNG.  He attended the MOS 75B (Personnel Administration Specialist) Course from 31 May to 14 June 2002.  On 23 December 2003, he was promoted to sergeant (SGT)/E-5.  On 26 December 2003, he reenlisted for a 3-year period.

5.  On 30 November 2003, he was ordered to active duty in support of Operation Iraqi Freedom under Title 10, U.S. Code (U.S.C.), section 12302, and subsequently served in Kuwait/Iraq from 27 February 2004 to 8 January 2005.  While serving in Iraq:

* on 11 March 2004, while walking to the meal line, he sustained a right ankle sprain; he went to sick call the next day
* on 14 July 2004, he again injured his ankle as he was stepping out of the bathroom; he received an ankle brace to wear

6.  In a memorandum, dated 18 September 2004, his unit S-1 (1st Battalion, 150th Armor, WVARNG) indicated his LOD packet did not contain a copy of his last physical examination.  Only essential medical and administrative records were brought with the unit on deployment.  Upon redeployment back to West Virginia, the applicant’s physical examination would be added to his LOD investigation if deemed necessary.  The final disposition of his case is not available for review.

7.  On 15 February 2005, he was honorably released from active duty to the control of the WVARNG by reason of completion of his required service.

8.  On 1 March 2005, he was ordered to active duty for special work through a series of State orders under Title 32, U.S.C., section 503.  The orders and several amendments list the purpose of his active duty as homeland security, leadership development, counterdrug support, and/or other State reasons.

9.  His service medical records – specifically the DA Form 2173 (Statement of Medical Examination and Duty Status) that documented his back injury – are not available for review with this case.  In his earlier application to the ABCMR, he provided multiple civilian medical records that showed:

	a.  On 1 April 2008, he complained of low back pain.  He stated his back got stiff at work.  The diagnosis was possible lumbago.  He was seen over the next few weeks in a follow-up status, but continued to experience back pain.

	b.  On 29 April 2008, he was examined at a civilian facility for low back pain.  The medical doctor determined:

* there was some loss of normal lumbar lordosis (inward curvature of a portion of the lumbar and cervical vertebral column)
* vertebral body heights and disc spaces were grossly preserved
* there was mild apex right thoracolumbar scoliosis (abnormal curving of the spine); may be positional in nature
* the impression was loss of lumbar lordosis, mild scoliosis; may be positional

10.  On 29 May 2008, he executed a Disability Counseling Statement wherein he indicated he was eligible for continuance of pay and allowances while disabled from an injury/aggravation/illness/disease incurred in the LOD.  Also on that date, he executed a Soldier's Rights and Warning Statement wherein he indicated he was informed of his rights and that he did not have to make a statement relating to the origin, incurrence, or aggravation of the injuries.

11.  On 9 June 2008, he was reevaluated at a civilian facility regarding back pain.

12.  On 14 August 2008, he was issued a permanent physical profile for lumbar strain/gunshot injury to the calf.  The details of the lumbar strain and the gunshot injury are not available for review with this case.  Additionally, the profiling officer annotated this form with the entry, "SM [service member] is to provide treatment records regarding future care in order to remove this profile."

13.  He attended and successfully completed the Total Army Instructor Course from 19 to 29 September 2008.

14.  His DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the period 1 December 2007 through 30 November 2008 shows he performed as a platoon sergeant, received "success" ratings in all areas except physical fitness and military bearing, and received a Fully Capable/Successful/Superior rating.  His rater rated him as "Needs Improvement" in the area of physical fitness and military bearing and entered the comments:  "Always maintains neat and orderly appearance," "Currently on profile which prohibits any events of the Army Physical Fitness Test," and "Profile does not prevent Soldier from completing daily duties or impair his performance."

15.  On 26 August 2010, he was issued a permanent physical profile for low back pain.  The profiling officer stated the applicant had low back pain.  No other information was provided.

16.  On 28 September 2010, the WVARNG State Surgeon determined the applicant was not physically fit for retention based on chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  On the Standard Form 600, he indicated the applicant should be processed for separation as not being medically fit for retention.  The applicant had this issue for greater than 2 years and was beyond maximal medical improvement.  He had a permanent "L3" physical profile due to this ongoing problem.

17.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty on 30 September 2010 by reason of completion of required service through self-terminating orders and transferred to the control of the WVARNG.

18.  On 4 October 2010, in a memorandum to the applicant's chain of command, the State G-1 stated the Surgeon General had evaluated the applicant's medical records and determined he was not retainable in accordance with Army Regulation 40-501, paragraphs 3-39 and 3-41.  He instructed the applicant to provide relevant documentation if he wished to appeal, to include any civilian, military, or Department of Veterans Affairs (VA) medical records.

19.  On 4 October 2010, the applicant executed an acknowledgement of notification of separation.  He indicated he understood he would be separated from the WVARNG, he did not desire to appeal his medical separation, and he did not intend to submit additional medical documentation.

20.  On 4 November 2010, he was honorably discharged from the WVARNG for being medically unfit for retention in accordance with paragraph 6-35l(8), National Guard Regulation 600-200 (Enlisted Personnel Management), per Army Regulation 40-501.  He completed 11 years and 10 days of service during this period.

21.  On 10 December 2010, the State LOD approval authority provided a memorandum to the Joint Forces Headquarters, West Virginia, stating “A lumbosacral spine series was completed on the Soldier showing loss of lumbar lordosis and mild scoliosis.”

22.  Subsequent to his discharge, the VA awarded him service-connected disability compensation for:

* post-traumatic stress disorder, 50 percent, effective 1 October 2010
* lumbago, 10 percent, effective 1 October 2010

23.  On 5 July 2012, an advisory opinion was obtained from NGB.  The Chief, Personnel Policy Division, recommended approval of the applicant's request to be afforded the opportunity to have his medical records reviewed by the appropriate board in order for an accurate determination of his condition at the time of his discharge.  The Chief, Personnel Policy Division, recommended:

* that the applicant's medical records be reviewed by a medical evaluation board (MEB) for disability evaluation processing and then be referred to a PEB to determine suitability of a medical discharge
* that if a determination cannot be made by an MEB or PEB based on the medical documentation provided, the Office of the Surgeon General should contact the Soldier and schedule an evaluation, generate individual travel orders, and reinstate the applicant
* that if a determination is made that he should have been separated under the Army Physical Disability Evaluation System (PDES):

* that the ABCMR proceedings serve as the authority for his administrative discharge and the appropriate disability separation be annotated, retroactive to his original ARNG separation date
* that he receive any entitlements to all back pay and allowances, less any entitlements already received

24.  The Chief, Personnel Policy Division, NGB, also stated:

	a.  A memorandum from the WVARNG, dated 4 October 2010, indicates the applicant was found "unfit for duty" and separated effective 4 November 2010.  The guidance used regarding the applicant’s discharge was National Guard Regulation 600-200, dated July 2009, paragraph 6-32(e), which states, "notify Soldiers who do not meet medical retention standards of the intent to separate and afford them the opportunity to request a waiver for retention per Army Regulation 40-501 or to provide additional information from civilian doctors at their own expense."  The applicant signed an Acknowledgement of Notification of Separation form indicating he was aware of WVARNG's intent to separate him and he did not desire to appeal his medical separation.  Due to the time of the applicant's discharge, the regulation used is not applicable in this instance.

	b.  National Guard Regulation 600-200, dated March 1997, applied during the time frame in question.  The guidelines that govern the proper procedures to discharge a Soldier found to be medically unfit fall under paragraph 8-26(j)(1) which states, "Refer to Army Regulation 135-178 (ARNG and USAR Enlisted Administrative Separations), chapter 12, for the following reason for discharge:  medically unfit for retention in accordance with Army Regulation 40-501, chapter 3.  Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501 and National Guard Regulation 40-501 (Standards of Medical Fitness-ARNG).  If the Soldier refuses to report as directed, see paragraph 8-27i of this regulation.  When the medical condition was incurred in the LOD, the procedures of National Guard Regulation 40-3 (Medical Care for ARNG Soldiers) will apply.  Discharge will not be ordered while the case is pending final disposition.  Reentry [eligibility] (RE) code 3."

	c.  Paragraph 8-27(i) states, "Failure to obtain required physical per Army Regulation 40-501 and National Guard Regulation 40-501.  Soldier will be notified in writing of the requirement to obtain a physical, and given 90 days after the letter is mailed to comply with this requirement.  Commander can authorize an extension of up to 60 days for extenuating circumstances:  RE 3."

	d.  An email from the NGB Chief Surgeon General's office, dated 31 January 2012, indicates documentation provided shows the applicant was injured while on active duty and was diagnosed with a lumbar spine injury that resulted in an approved LOD.  Additionally, the Soldier was given a permanent physical profile. 
As a result, the Soldier should have been afforded an MEB and not administratively separated.  Departments of the Army and the Air Force memorandum, dated 10 December 2010, confirms through an LOD investigation regarding the incident that occurred in April 2008 that the Soldier's lumbar spine injury occurred in the LOD.

	e.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), section 2-8, states, "The commander, medical treatment facility (MTF) will:  (a) provide a thorough and prompt evaluation when a Soldier's medical condition becomes questionable in respect to physical ability to perform duty; (b) appoint a PEB Liaison officer (PEBLO) to counsel Soldiers undergoing physical disability processing; (c) ensure MEB proceedings referred to the PEB are complete, accurate, and fully documented as outlined in Army Regulation 
40-400 (Patient Administration), chapter 7, and chapter 4 of this regulation."  Further, Army Regulation 40-501, section 3-3, provides that "Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB as defined in Army Regulation 40-400 and will be referred to a PEB as defined in Army Regulation 635-40 with the following caveats:  (b) Soldiers pending separation in accordance with provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) or Army Regulation 600-8-24 (Officer Transfers and Discharges) authorizing separation under other than honorable conditions who do not meet medical retention standards will be referred to an MEB."  There is no supporting documentation indicating the Soldier was counseled as to his rights to accept referral to an MEB/PEB for the purpose of disability benefits.

	f.  The State supported this recommendation.

25.  The applicant concurred with the advisory opinion and provided his VA rating decision.

26.  Subsequent to the previous ABCMR decision, the applicant's transaction history in Integrated Web Services (IWS), a human resources management database maintained by the U.S. Army Human Resources Command (AHRC), shows the LOD and other substantiating medical documents were added to his file in October and November 2012.

27.  National Guard Regulation 600-200, dated 31 July 2009, establishes standards, policies, and procedures for the management of ARNG enlisted Soldiers.  Chapter 6 addresses enlisted separations.  Paragraph 6-35l refers the user to Army Regulation 135-178 for certain reasons for separations, among them is subparagraph 6-35l(8), medical reasons and states:  medically unfit for retention per Army Regulation 40-501.  Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per Army Regulation 40-501.  Commanders who do not recommend retention will request the Soldier's discharge.  When medical condition was incurred in the LOD, the procedures of Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations) will apply.  Discharge will not be ordered while the case is pending final disposition.  This paragraph also includes those Soldiers who refuse or are ineligible to reclassify into a new MOS.

28.  Army Regulation 635-40 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.  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/or severance pay benefits:

* 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 for training
* 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

29.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement).  Once a determination of physical unfitness is made, a PEB rates all disabilities using the VA Schedule of Rating Disabilities.

30.  Title 38, USC, 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 error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have the authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  A review of the events leading to the applicant's discharge shows:

* on 1 April 2008, the applicant states he incurred a back injury (while on active duty orders)
* on 2 April 2008, an LOD was initiated, deleted 6 months later, and eventually completed in 2010
* on 29 May 2008, the applicant signed a disability counseling statement
* on 14 August 2008, he was issued a permanent physical profile for lumbar strain and gunshot injury to the calf
* on 26 August 2010, he was issued a permanent physical profile for low back pain
* on 28 September 2010, the WVARNG State Surgeon determined he was unfit for retention
* on 30 September 2010, the applicant was released from active duty and transferred to the control of the WVARNG
* on 4 October 2010, the applicant was notified of his pending separation
* on 4 November 2010, the applicant was honorably released from the WVARNG for being medically unfit for retention

2.  Although the record is void of the initial medical treatment record showing what caused the applicant's back pain, the evidence confirms:

* he experienced low back pain while entitled to basic pay and allowances
* he was found unfit for retention due to having low back pain for greater than 2 years and that he was beyond maximal medical improvement 

3.  Sufficient evidence confirms he had a diagnosed medical condition that was incurred while entitled to basic pay at the time of his discharge which rendered him unable to perform the duties of his MOS.  Therefore, based on the governing regulations, he should have been processed through medical channels.

4.  Therefore, his records should be corrected as indicated below.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented Is sufficient to warrant a recommendation for 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:

	a.  directing the Office of The Surgeon General to contact the individual and arrange, via appropriate medical facilities, an MEB; and

	b.  if appropriate, referral to an informal PEB.

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the MEB and, if necessary, the PEB.

3.  In the event that 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.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  In the event a PEB finds that the individual concerned has a medically unfitting condition and it is compensable, appropriate action will be taken to void his administrative discharge and issue him the appropriate disability separation retroactive to his original separation date with entitlement to all back pay and allowances, less any entitlements already received.




      _______ _   _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)                                         AR20120022194



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ABCMR Record of Proceedings (cont)                                         AR20120022194



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