IN THE CASE OF:	  

		BOARD DATE:	    17 September 2013

		DOCKET NUMBER:  AR20130000331 


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:

* correction of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to show he was honorably discharged by reason of disability
* reinstatement in the Army National Guard (ARNG) to undergo a medical evaluation board (MEB)

2.  The applicant states:

	a.  He sustained numerous injuries in the line of duty (LOD).  Most of these had an LOD investigation initiated and all were found to be in the LOD by military medical personnel who examined the injuries at the time.  Several of these are ongoing problems that resulted in permanent disabilities with ongoing medical care.  These cumulative injuries were causing him difficulty being effective in the military prompting him to seek treatment through the Department of Veterans Affairs (VA).  He was mistakenly informed that he would have to get out of the military to do so and go through a screening process to be given a disability rating, then he could continue to receive treatment through the VA.

	b.  He retired on 31 January 2011 and began to collect his medical documentation for presentation to the VA.  While at the VA, he was informed that it would have been much easier if he had started the process prior to being released from the military.  He was also informed that he should have had an MEB prior to being released and an MEB should have been initiated by his unit.

	c.  He contacted the Florida ARNG (FLARNG) Surgeon's Office and was told they could not reinstate him because he was already retired.  However, if his Congressman initiated the action the FLARNG could reinstate him to undergo an MEB.  He contacted his Representative in Congress.  He was informed that they received a reply from NGB in August 2012 which stated he would have to appeal to the Army Board for Correction of Military Records (ABCMR).

	d.  The VA has rejected all the claims he submitted, even though he had a documented LOD.  He has submitted appeals to his claims with help from a Veterans' association specialist.  He is still suffering from residual effects of his injuries and accumulating bills from ongoing medical treatment.  These injuries have affected his ability to work full time, perform daily activities, and provide income for his family.

3.  The applicant provides FLARNG Orders 084-055, miscellaneous letters, a VA Form 21-526 (Veteran's Application for Compensation and/or Pension), and eight claims packets addressed to the VA Regional Office, St. Petersburg, FL.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 11 May 1970.  His records show he enlisted in the Arkansas ARNG (ARARNG) on 30 April 1990 and he held military occupational specialty (MOS) 91B (Medical Specialist).  He was honorably discharged on 28 May 1998 to accept an appointment as a commissioned officer.  The NGB Form 22 he was issued for this period of service shows he completed 8 years and 29 days of Reserve service during this period.

2.  He was appointed as a second lieutenant (2LT) in the ARARNG on 29 May 1998 in area of concentration (AOC) 65D (Physicians Assistant (PA)).  On 30 September 1998, he was transferred from the ARARNG to the FLARNG.  He was promoted to the rank of first lieutenant (1LT) on 22 July 2002.

3.  His records contain a DA Form 261 (Report of Investigation – LOD and Misconduct Status) submitted by the FLARNG to NGB on 11 April 2004.  This report stated the applicant accidently had contact with another Soldier during strenuous physical conditioning during special forces training at Fort Bragg, NC, on 8 April 2004.  This resulted in a torn meniscus of his right knee and left knee pain from favoring that knee.  He was tripped during an organized run which aggravated a previous knee injury.  A few days later, there was additional contact in the back of the same knee and he began to experience a "locking" sensation in his right knee.

4.  On 5 May 2004, NGB returned the LOD to the FLARNG without action and stated that based on a review of the LOD, the Surgeon was unable to make a determination due to a lack of required documentation such as:

* medical treatment records for the previous surgeries to both knees
* a copy of the completed treatment record for the LOD injury
* copies of the previous two complete physicals prior to the LOD injury

5.  His records contain a DA Form 7349 (Initial Medical Review – Annual Medical Certificate), dated 3 June 2006, wherein he annotated the form to indicate he did not have any medical/dental problems at that time.  He also annotated that he received treatment for a right foot condition with tendinitis and left shoulder condition since the last periodic physical examination and that both issues were resolved.  The examining physician found he was fully fit for duty and did not require further evaluation.

6.  His records contain a DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) that shows he passed the APFT on 8 January 2006 with a score of 293 and on 11 February 2007 with a score of 300.

7.  His records contain the following annual officer evaluation reports he received while serving as a PA in the FLARNG Medical Detachment, St. Augustine, FL, for the 12-month rating periods from:

* 1 August 2006 through 31 July 2007 wherein he received "Satisfactory Performance, Promote" and "Best Qualified" ratings and showing he passed the APFT in February 2007
* 1 August 2007 through 31 July 2008 wherein he received "Outstanding Performance, Must Promote" and "Fully Qualified" ratings and showing he did not take the APFT due to having a physical profile on 9 March 2008
* 1 August 2008 through 31 July 2009 wherein he received "Outstanding Performance, Must Promote" and "Fully Qualified" ratings and showing he did not take the APFT due to having a physical profile on 1 August 2008

8.  On 4 May 2010, the FLARNG issued him a 20-year letter.  This letter notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

9.  On 31 January 2011, he was honorably released from the FLARNG by reason of resignation and completion of 20 years active/inactive service and he was transferred to the Retired Reserve.  He completed a total of 17 years, 11 months, and 13 days of inactive service and 2 years, 5 months, and 17 days of active duty service.
10.  The applicant's records do not contain any evidence that shows he was ever diagnosed with any injury/condition while serving in the ARNG that permanently prevented him from performing the duties expected of him based on his rank and AOC and would require referral to an MEB.

11.  There is no evidence in the available records that shows he ever received a permanent profile rating of "3" that would require referral to an MEB.

12.  The applicant provides a VA Form 21-526, undated, that shows he submitted an application to the VA for the following disabilities and the date/location the disability initially began:

* right knee anterior cruciate ligament tear and degenerative joint disease/left knee pain, 17 March 1994, Camp Shelby, MS
* right elbow injury, 16 June 1994, Fort Chaffee, AR
* bilateral plantar fasciitis/foot pain, February 1998, Fort Benning, GA
* left ankle, chronic sprain/pain, 5 May 2004, Camp Mackall/Fort Bragg, NC
* neck pain/radiculopathy, 3 March 2007, Vero Beach, FL
* low back pain/fusion, 14 March 2009, Cocoa Beach, FL
* tinnitus/high frequency hearing loss, 18 June 2009, Camp Blanding, FL

13.  He also provides eight claims packets addressed to the VA, each dated 12 December 2012, containing numerous medical/personnel documents as notice of disagreement for service-connected for:

* injury to right elbow
* tinnitus and hearing loss
* injury to left knee
* injury to neck
* bilateral plantar fasciitis and foot pain
* injury to left ankle
* injury to lower back
* injury to right knee

14.  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.  It states MEB's/physical evaluation boards 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 (Standards of Medical Fitness), chapter 3.

15.  Army Regulation 635-40 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/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.  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 that service member can be medically separated or retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his NGB Form 22 should be corrected to show he was honorably discharged by reason of disability and he should be reinstated in the ARNG to undergo an MEB.

2.  The evidence of record confirms that although the applicant was treated for several medical injuries/conditions throughout his period of service, he satisfactorily completed 20 years of service.  There is no evidence in his records and he has not provided any conclusive evidence that shows he ever incurred any injury/condition while serving in the ARNG that permanently prevented him from performing the duties required of him and would require referral to an MEB.

3.  The evidence of record does not show and he has not provided any evidence that shows he ever received a permanent physical profile rating of "3" that would require referral to an MEB.  A temporary physical profile or the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

4.  The evidence of record confirms that he was honorably released from the FLARNG on 31 January 2011 and transferred to the Retired Reserve.  His narrative reason for separation is correctly shown on his NGB Form 22 and is based on his voluntary separation from the ARNG to transfer to the Retired Reserve.

5.  The ABCMR does not grant requests for the correction of records solely for the purpose of making an applicant eligible for VA other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

6.  In view of the foregoing, there is insufficient evidence upon which to grant the requested relief in this case.


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)                                         AR20130000331



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ABCMR Record of Proceedings (cont)                                         AR20130000331



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