IN THE CASE OF:	  

		BOARD DATE:  7 November 2013

		DOCKET NUMBER:  AR20120022914 


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 correction of his military records to show he was separated from active duty due to a physical disability.

2.  The applicant states the Army knew of his medical problems, but he was "pushed out" of active duty and told to let the Army National Guard (ARNG) take care of him.

	a.  He wants the Board to look into what the Kentucky ARNG (KYARNG) is doing to him.  He states the KYARNG knew about his medical conditions before he went to them.  However, he did not realize he was going to need neck surgery until August 2011.  He let his first sergeant know as soon as he found out and gave him a copy of the physical profile he received while serving on active duty.  He states an Army doctor wrote a letter saying he was not able to take the physical test.  The KYARNG first sergeant said he arrived at his unit in a wheelchair after having surgery and was wearing a neck brace which is not true.  The doctor even stated he did not need a neck brace.  The Department of Veterans Affairs (VA) gave him the wheelchair after he had stress convulsions/
seizures.

	b.  He states that when he received the VA letter about his disability, he gave a copy to his first sergeant.  He never kept anything from them – as soon as he found out what was going on, they knew.  His wife had to be with him whenever he reported to his unit because he is not allowed to drive and his caregiver must be with him 12 hours per day.  The KYARNG doctor evaluated him and issued a physical profile that only allowed him to wear his military uniform.  That is when he was informed that the KYARNG was sending him before a medical board.  The medical board determined that all of his medical problems were caused during his period of active duty.  The KYARNG then informed him that he had enlisted in the KYARNG fraudulently and was being issued a general discharge.

	c.  The applicant states he has three honorable discharges and has never done anything wrong.  He explained to the unit that he did not experience his medical problems until after he was on leave.  He saw the Army doctors until his last day of active duty on 28 September 2011.  He signed in with the KYARNG on 29 September 2011.

	d.  The applicant states the Army doctors told him they would have sent him to a medical board if he had 3 months or more remaining on his term of service.  However, he was not eligible to reenlist because he was not promotable.

	e.  The applicant states he served over 15 years of his life in the military which included three deployments during his last 6 years.  He feels that after he was injured during his last deployment, everyone pushed him to someone else and wouldn't help him.

	f.  The VA is the only place that is helping him.  He now receives social security disability insurance because he is unable to work due to his medical conditions.  He is 90-percent disabled and is still being evaluated for additional medical conditions.  His wife cannot work because she must take care of him.  She drives him to all of his appointments, which are no less than five each month.  He cannot remember days or sometimes even weeks at a time.  He feels like he cannot support his family and the military has abandoned him after he was injured.  He just wants to make sure the KYARNG does not hurt him by issuing him a general discharge and that the Regular Army changes the reason for his separation to physical disability retirement.

3.  The applicant provides:

* Consultation Report, Reynolds Army Community Hospital, Fort Sill, OK, dated 13 May 2005
* DA Form 638 (Recommendation for Award) for Army Commendation Medal with "V" Device with narrative, citation, and sworn statement, dated July 2010
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report) for the period ending 31 December 2010
* DA Form 2648 (Pre-Separation Counseling Checklist), dated 29 March 2011
* Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders 097-602, Fort Campbell, KY, dated 7 April 2011
* VA memorandum, dated 25 May 2011, claim for benefits (single page)
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 15 June 2011
* DA Form 7249-R (Certificate and Acknowledgement of Service Requirements and Methods of Fulfillment for Individuals Enlisting or Transferring into Units of the ARNG upon Release from Active Duty (REFRAD)/Discharge from Active Army Service (Annex A)), dated15 June 2011
* DA Form 5691-R (Request for Reserve Component Assignment Orders), dated 15 June 2011
* DA Form 5435 (Statement of Understanding – The Selected Reserve Montgomery GI Bill), dated 15 June 2011
* Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, memorandum for Commander, 438th Military Police Company, KYARNG, dated 15 June 2011
* Enlisted Record Brief, dated 15 June 2011
* Skyline Medical Center Post-Contrast Patient Instructions, dated 17 June 2011
* Post-Deployment Health Re-Assessment, dated 24 June 2011
* VA Form 21-526c (Pre-Discharge Compensation Claim), undated
* Blanchfield Army Community Hospital, Fort Campbell, KY, Outpatient Consultation, dated 15 September 2011, for the Gateway Medical Center
* DA Form 3349 (Physical Profile), dated 28 September 2011
* VA letter, dated 7 October 2011, for direct deposit of VA educational benefits
* Premier Medical Group Specialist Appointment, dated 26 October 2011
* Centennial Medical Center admission/discharge documents, dated 
7-8 November 2011
* VA letter announcing the applicant's disability entitlement/compensation, dated 28 December 2011
* VA letter certifying the applicant's honorable discharge and periods of honorable service, dated 31 December 2011
* VA letter establishing the applicant's veterans' preference for civil service employment, dated 31 December 2011
* VA letter certifying the applicant's receipt of service-connected disability compensation, dated 31 December 2011
* Standard Forms 600 (Chronological Record of Medical Care), dated 16 August 2011 to 14 March 2012 (34 pages)
* DA Form 3349, dated 21 March 2012
* Premier Radiology Belle Meade magnetic resonance imaging (MRI) report, dated 18 May 2012
* VA Rating Decision, dated 1 June 2012
* VA letter announcing applicant's disability entitlement/compensation, dated 4 June 2012
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 7 June 2012, for post-traumatic stress disorder (PTSD)
* DA Form 2173, dated 7 June 2012, for lumbar/lumbosacral intervertebral disc degeneration
* DA Form 2173, dated 7 June 2012, for cervicalgia (neck pain)
* DA Form 2173, dated 10 June 2012, for left leg joint pain
* VA Medical Center Medical Continuous Positive Airway Pressure/Bi-Level Titration Report, dated 18 June 2012
* VA Form 21-4138 (Statement in Support of Claim), dated 12 July 2012
* VA Medical Center Progress Notes, dated 12 July 2012
* National Guard Bureau Form 23B (ARNG Retirement Points History Statement), dated 10 October 2012
* DA Form 4856 (Developmental Counseling Form), dated 14 October 2012
* 438th Military Police Company memorandum, dated 14 October 2012, subject:  Notification of Separation Proceedings under Army Regulation 135-178 (ARNG and Army Reserve – Enlisted Separations), Chapter 7, Paragraph 7-4c(5), for fraudulent enlistment (8 pages)

CONSIDERATION OF EVIDENCE:

1.  On 8 February 2005, the applicant enlisted in the Regular Army with prior service in the U.S. Marine Corps.  He deployed to Iraq in 2005-2006 for 11 months, to Afghanistan in 2007-2008 for 15 months, and to Afghanistan in 2010-2011 for 11 months.

2.  The applicant's DD Form 4, dated 15 June 2011, shows he enlisted in the ARNG of the United States and KYARNG for a period of 3 years.  Also on 15 June 2011, orders were requested for subsequent assignment to the 438th Military Police Company.

3.  Filed with his ARNG enlistment contract in his Army Military Human Resource Record (AMHRR) is an Individual Medical Readiness report.  This document shows the applicant had a PULHES of 111111 with a current examination date of          2 February 2010.  It also shows he had a pre-deployment health assessment dated 2 February 2010 and a post-deployment health assessment dated             8 January 2011, but he did not have a post-deployment health re-assessment (PDHRA).

4.  The applicant provided a PDHRA dated 24 June 2011.  This document shows the applicant indicated that during his deployment he had experienced a blast or explosion and another, undescribed incident.  He indicated 7 problems including memory and balance problems, irritability, headaches, and sleep problems began or got worse after the blast experience.  He indicated that he was told (or knew) that he felt dazed or confused, had a concussion, and had a head injury after the event.  He indicated that in the past week he experienced 7 symptoms (of the same 7 problems noted earlier).  He indicated that since his return he had serious conflicts with his spouse, family members, close friends or at work that continued to cause him worry or concern.  He indicated that in the past month he experienced nightmares, avoidance, startle responses, and numbness or detachment.  He indicated that in the past month he had been bothered by little interest or pleasure in doing things and feeling down, depressed, or hopeless for more than half the days.  

5.  A Standard Form 600, dated 16 August 2011, states the applicant had chronic neck pain.  He was already on terminal leave and had no desire to extend on active duty or to appear before a medical evaluation board (MEB).  The physician felt it was appropriate to obtain an MRI to determine the extent of the injury if only for VA purposes.  The physician expected surgical findings.

6.  A Standard Form 600, dated 19 September 2011, indicates his appointment was for a pre-surgery neck MRI.

7.  On 28 September 2011, the applicant was separated from the Regular Army due to completion of required active duty service in the rank of sergeant/pay grade E-5.  He completed 13 years, 2 months, and 15 days of creditable active duty service.

8.  The applicant's DD Form 214 shows he was involuntarily separated and received separation pay.  He was assigned a separation program designator (SPD) code of JBK indicating he was ineligible for, barred from, or otherwise denied reenlistment.  He was also issued a reentry eligibility code of 3 indicating he did not meet eligibility criteria for immediate reenlistment without a waiver.

9.  The applicant's DA Form 3349, dated 28 September 2011, indicates he was issued a temporary physical profile due to chronic neck pain.  He was restricted from running, jumping, performing sit-ups, and marching with a ruck sack.  He was further restricted from doing push-ups, pull-ups, dips, overhead clapper, or any other above-shoulder height exercises or work.  He was not to lift more than 15 pounds or perform repetitive bending.

10.  A Standard Form 600, dated 15 November 2011, indicates his neck incision was healing.  He reported feeling well with less radicular pain.  He was to return in 4-6 weeks for surgical planning.

11.  In a letter, dated 28 December 2011, the VA informed the applicant that he had been granted service-connected disability effective 29 September 2011 with an overall rating of 90 percent for the following medical conditions:

* PTSD – 70 percent
* left shoulder strain – 10 percent
* right shoulder strain – 10 percent
* cervical spine degenerative arthritis – 10 percent
* thoracolumbar (lower back) spine degenerative disc disease – 10 percent
* right knee retropatellar (front of the knee) pain syndrome – 10 percent
* tinnitus – 10 percent
* hiatal hernia with gastroesophageal reflux disease – 10 percent
* left calcaneal (heel bone) spur – 0 percent
* left hallux (big toe) valgus (bunion) – 0 percent
* right hallux valgus – 0 percent
* bilateral hearing loss – 0 percent
* erectile dysfunction – 0 percent
* headache – 0 percent

12.  The applicant's DA Form 3349, dated 21 March 2012, showed the applicant's medical condition included knee pain, lower back pain, neck pain, hearing loss, and PTSD.  He was assigned a permanent physical profile of 
333313.  The applicant was restricted from bending, climbing, crawling, jumping/landing, kneeling, pushing/pulling, reaching above his shoulders, running, swimming/diving, twisting, walking/marching, or bearing weight of more than 10 pounds.  The applicant was identified as having PTSD and persistent behavioral health issues.  The form shows the applicant did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and needed an MEB.

13.  A VA letter, dated 4 June 2012, indicates that the applicant had neck surgery in November 2011 for C5-7 fusion.  However, there was "no operative report or post-operative treatment records to establish entitlement to a temporary 
100-percent evaluation."

14.  Three DA Forms 2173, dated 7 June 2012, and another DA Form 2173, dated 10 June 2012, report that the applicant suffered from PTSD, lumbar/lumbosacral intervertebral, cervicalgia, and joint pain in his left leg.  The conditions were reported to have occurred while the applicant was serving on active duty or performing inactive duty training.  The remarks block states the applicant was recruited for duty in the KYARNG with medical issues and reported to duty wearing a neck brace.  He provided the unit with medical documentation.  The unit had no prior knowledge or history of these issues.  The applicant provided a stack of medical papers to the unit at his first inactive duty training assembly.

15.  On 14 October 2012, the applicant's commander notified him of his intention to separate him from the ARNG and as a Reserve of the Army due to his concealment of a medical defect or disability that would have precluded his enlistment.  The applicant acknowledged the notification, stating he had more than 6 years of active duty service.  He requested copies of documents related to the action, waived his right to counsel, and elected not to submit a written statement.

16.  On 14 October 2012, the commander recommended the applicant's separation from the ARNG under the provisions of Army Regulation 135-178, paragraph 7-4, for concealment of a medical defect or disability.

17.  KYARNG Orders 342-834, dated 7 December 2012, directed the applicant's discharge from the ARNG and as a Reserve of the Army effective 7 December 2012.  The special remarks state:  "medically disqualified."  His discharge was characterized as general.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  This regulation provides that the mere presence of an 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.

	b.  It also provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

	c.  It further provides that a Soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 1-24, provides that Soldiers who are determined medically fit for retention or separation will not be retained past their set release dates.  A Soldier may only be considered for retention past his or her set release date when one or both of the following apply:

	a.  continued health care is required (must be in-hospital status but not necessarily occupying a bed) and/or

	b.  physical disability processing is required or has been initiated.

20.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

21.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated less than 30-percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was separated from active duty due to physical disability.  He further contends that this Board should look at what the KYARNG is doing to him.

2.  The available evidence shows the applicant was involuntarily separated from active duty because he did not qualify for immediate reenlistment.  His neck problem began to manifest itself while he was on transition leave; however, the applicant indicated he had no desire to extend on active duty or to appear before an MEB.  There is no evidence showing his medical condition at the time of his separation from active duty was medically unfitting for retention.  Further, a Soldier may not be retained involuntarily beyond his contractual separation date. Therefore, he was honorably REFRAD at the expiration of his term of service.

3.  Approximately 3 months prior to his REFRAD, the applicant had contracted for enlistment in the KYARNG.  

4.  The applicant indicated the KYARNG knew about his medical conditions before he went to them, but he provides insufficient evidence to show they did so.  His ARNG enlistment packet in his AMHRR contains only an Individual Medical Readiness report that shows the applicant had a PULHES of 111111.  It also shows he had a pre-deployment health assessment dated 2 February 2010 and a post-deployment health assessment dated 8 January 2011, but he did not have a PDHRA.

5.  The applicant provided a PDHRA dated 24 June 2011, which was about         2 weeks after he signed his ARNG enlistment contract.  This document shows the applicant indicated he had a number of medical issues that potentially could have caused the ARNG to find him to be not medically fit for enlistment, particularly potential PTSD problems.  He indicated on this form that in the past month he experienced nightmares, avoidance, startle responses, and numbness or detachment, and in the past month he had been bothered by little interest or pleasure in doing things and feeling down, depressed, or hopeless for more than half the days.  

6.  The evidence shows he had neck surgery between the time of his REFRAD and reporting to the KYARNG.  When he reported to the KYARNG for duty, he was wearing a neck brace and presented his medical documents.

7.  The DA Forms 2173 initiated by the KYARNG indicate the KYARNG did not know about the applicant's medical conditions prior to his arrival.  Considering the information on the Individual Medical Readiness form filed with his ARNG enlistment contract and the information on his PDHRA, this statement from the KYARNG is credible.  Accordingly, the KYARNG recommended his discharge based on a fraudulent enlistment due to his concealment of his medical defect/disability.  He was discharged from the ARNG and as a Reserve of the Army on 7 December 2012 with a general character of service.

8.  An award of a VA rating does not establish entitlement to medical retirement.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

9.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.  The evidence does not show that the applicant was medically unfit at the time he separated from active duty, and he declined to extend on active duty to determine if he would have been found unfit by an MEB/PEB.

10.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20120022914



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ABCMR Record of Proceedings (cont)                                         AR20120022914



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