BOARD DATE:	12 September 2013  

		DOCKET NUMBER:  AR20130000554 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the Board's denial of the applicant's previous request for correction of his date of discharge from the U.S. Army Reserve (USAR).

2.  Counsel states that the applicant contends:

	a.  The discharge from the Army for medical conditions was unlawful because guidelines set forth under Department of Defense (DoD) Directive 1332.18 were not effectively followed.  Although he was engaged in rehabilitation, no follow up was granted for review with the Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB).

	b.  He was required to sign a complex discharge form consenting to his medical discharge with a misguided explanation as to the effect of this act, and therefore his act of signing the form should not be considered as a valid consent or waiver of the correct procedural guidelines.

	c.  The discharge for medical conditions was inequitable:

* because the discharge was effectuated while the applicant was still undergoing rehabilitation
* in view of the applicant's laudable service to the Army his discharge should be fairly characterized as an honorable discharge
* because instead of being discharged on 24 March 2006 at the conclusion of his 8-year obligation, the applicant was discharged 5 months early, and therefore the records should correctly reflect the discharge date of 24 March 2006

3.  Counsel provides:

* brief explaining the fact pattern
* applicant's personal statement
* Board's original record of proceedings
* U.S. Army Human Resources Command (HRC) Orders H-03-401361
* an HRC letter, subject:  Notification of Medical Disqualification, dated 12 December 2004
* an HRC letter, subject:  Notification of Medical Disqualification, dated 13 December 2004
* medical documents (radiology report, consult request, and progress notes) 

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 AR20120006746, on 2 October 2012.

2.  The brief provided by the applicant's counsel is a new argument, which requires that the Board reconsider his request.
	
3.  On 25 March 1998, the applicant enlisted in the USAR Delayed Entry Program.

4.  On 14 May 1998, he enlisted in the Regular Army for a 4-year term.  He completed initial entry training and was awarded military occupational specialty 63T (Bradley Fighting Vehicle System Mechanic).

5.  On 13 May 2002, after completing 4 years of active service, he was honorably released from active duty at the completion of his required period of active service and transferred to the Individual Ready Reserve (IRR).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows his Reserve Obligation Termination Date was 24 March 2006.
6.  Orders H-03-401361, issued by HRC, dated 23 March 2004, ordered the applicant to report to Medex Urgent Care, Fayetteville, NC, to undergo a periodic (5-year) physical examination not later than 13 April 2004.

7.  His records show that on 13 April 2004, he underwent a periodic physical examination.  His DD Form 2808 (Report of Medical Examination) shows he was determined to have a physical profile of 1-3-3-2-1-1.  This physical profile was approved on 28 April 2004.  His examining physician found him not qualified for service pending review.

8.  A Federal Strategic Health Alliance memorandum, subject:  Results of Retention Physical/Annual Dental Examination, dated 28 April 2004, shows the applicant was not eligible for retention under the provisions of Army Regulation 
40-501 (Standards of Medical Fitness).

	a.  The memorandum stated he should be referred to a non-duty related PEB.

	b.  The memorandum further states he had one or more abnormal finding(s) as indicated on the DD Form 2808 or Standard Form 603 (Health Record - Dental) and required follow-up with a civilian medical or dental provider.  In accordance with paragraph 9-3 of Army Regulation 40-501, this was his responsibility and was to be done at no expense to the USAR.  He was to provide copies for his military health record of any documentation from civilian medical/dental providers pertaining to follow-up.  Over maximum allowable weight was marked on the document.  

9.  The Soldier Management System (SMS) shows the following:

	a.  On 4 May 2004, he certified on an Army Reserve Personnel Center (ARPC) Form 3725-E (Army Reserve Status and Address Verification) that he had the medical conditions or physical defects of "lower back pain, left arm arthritis infected and no shaving permanent profile" that could prevent his performance of active military service.

	b.  On 14 May 2004, a remark was entered that the applicant's qualification for mandatory assignment to a USAR Troop Program Unit (TPU) was verified.

	c.  On 14 July 2004, a remark was entered that his physical examination results were forwarded to the surgeon's office.

	d.  On 21 July 2004, a letter was sent to the applicant requesting additional medical information.

10.  An AHRC memorandum, subject: Directive to Provide Additional Medical Information, dated 21 September 2004, stated that the applicant had failed to provide all necessary information required to determine the severity of the conditions (hearing loss and knee, shoulder, and back pain) but would be given an additional 30 days to comply.  Failure to comply within the required timeframe could result in his separation from the USAR.

11.  On 6 October 2004, a remark that he had stated since he was an IRR Soldier who was no longer in a TPU he was not required to send any information to HRC was entered in the SMS.

12.  On 12 November 2004, he was notified in writing of his medical disqualification for future retention in the USAR.  The conditions under consideration were knee pain, shoulder pain, back pain, and hearing loss.  On 29 November 2004, he acknowledged notification of medical disqualification for future retention in the active Reserve, and/or entry on active duty, and he elected discharge from the USAR.  He authenticated these forms by placing his signature in the appropriate block.

13.  A Standard Form 507 (Medical Record), dated 7 December 2004, shows an HRC Physical Review Board found him unfit for further service and referred his case to an MEB in accordance with Army Regulation 40-501 (paragraphs 3-10, 
3-12, 3-13c, 3-39h).  This form contains the following annotations:

	a.  entry dated 13 April 2004, that the applicant needed an MEB in accordance with (IAW) Army Regulation 40-501 (paragraphs 3-12 and 3-39h); 

	b.  entry dated 19 July 2004, "knee, shoulder and back pain, hearing loss"; 

	c.  entry dated 8 November 2004, "same hearing test - did not get audiology consult" and "not fit for retention-needs MEB - Army Regulation 40-501 (paragraphs 3-10, 3-12, 3-13c, 3-39h)"; and

	d.  a physical profile of  1-3-3-3-1-1. 

14.  A DA Form 3349 (Physical Profile), verified on 8 December 2004, shows his physical profile as 1-3-3-3-1-1.  It lists his medical conditions as knee, shoulder, and back pain.  It shows he did not meet retention standards IAW Chapter 3 of Army Regulation 40-501 and that he needed a PEB.

15.  On 13 December 2004, he was again notified in writing of his medical disqualification for future retention in the USAR.  The conditions under consideration were lower extremities, hearing, upper extremities, and nonradicular pain.  On 27 January 2005, he acknowledged notification of medical disqualification for future retention in the active Reserve, and/or entry on active duty, and he elected discharge from the USAR.  He authenticated these forms by placing his signature in the appropriate block.

16.  On 17 March 2005, the Command Surgeon, HRC-St. Louis, notified the Director, Regional Soldier Support Center (RSSC), HRC-St. Louis, of the applicant's lack of qualification for continued military service and his election to be discharged from the USAR.  The Command Surgeon requested the RSSC process him for discharge in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

17.  Orders D-10-532231, issued by HRC-St. Louis, dated 3 October 2005, discharged him from the USAR effective 3 October 2005 with an honorable characterization of service.

18.  The applicant's counsel stated that while serving in the Active Army, the applicant had sustained service-connected injuries which included: lower back pain, chronic shoulder pain, and pseudofolliculitis barbae (also known as shaving bumps) (Radiology Report, dated 13 May 2004, pages 1-13).  As a result of these injuries, he had started receiving rehabilitative care at the Fayetteville, North Carolina, Department of Veterans Affairs (VA) Center.  While assigned to the IRR, he received orders to perform a periodic physical examination on 24 April 2004 at the Medex Urgent Care in Fayetteville, North Carolina.  He contends that on 8 December 2004, his profile was changed from 1-3-3-2-1-1 to 1-3-3-3-1-1 without his knowledge.  Further, he was never invited for a follow-up examination nor was he put on any Army rehabilitation.

	a.  On 29 November 2004 and 27 January 2005, he received notification that he was medically disqualified for future retention.  He contends that before he placed his signature on the provided forms, he was never "advised to consult with legal counsel from initiation of an MEB," nor was he ever advised of his right to request an independent medical review by an "impartial physician" or "other appropriate healthcare professional" who was not involved with the MEB.  Procedural guidelines were therefore not adhered to during the period preceding his discharge.  Consequently, instead of being discharged on 24 March 2006, at the conclusion of his 8-year obligation, he was discharged 5 months early.  

	b.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or separate members when the Secretary finds that they are unfit to perform their military duties because of physical disability.  While most MEB/PEB actions occur when a military member voluntarily presents himself at the Medical Treatment Facility (MTF) for medical care, commanders may, at any time, refer military members to the MTF for a mandatory medical examination, when they believe the member is unable to perform his military duties due to a medical condition.  This examination may cause conduct of an MEB, which will be forwarded to the PEB when it finds that the member's medical condition falls below medical retention standards.  Further, the directive lists the factors which would determine whether disposition is fit for duty, separation, permanent retirement, or temporary retirement: whether the member can perform in their military occupational specialty; the rating percentage; the stability of the disabling condition; and years of active service (active duty days) in the case of pre-existing conditions. 

	c.  Regardless of the illogicality of the procedures that took place just before his discharge, what is perhaps more important is the fact that he was never advised to consult with legal counsel from the initiation of an MEB.  It is also crucial that a Soldier is advised of their right to request an independent medical review by an "impartial physician" or "other appropriate health care professional."  In addition, a Soldier must be afforded not less than 7 calendar days following the independent medical review to consult counsel and prepare a rebuttal.  The MTF has 7 days to consider the Soldier's rebuttal and return a fully documented decision to the Soldier.  The MEB should not be forwarded to the PEB until a rebuttal is finalized and MEB results indicate that the Soldier may be unfit for duty.

	d.  None of these procedural rights and obligations were ever afforded to the applicant.  Instead, he underwent a periodic physical examination.  His DD Form 2808 shows he was determined to have a physical profile of 1-3-3-2-1-1 which was allegedly approved on 28 April 2004.  Further, the record states that his examining physician found him not qualified for service.  Subsequently, on 7 December 2004 the records indicate that the Physical Review Board (PRB) at HRC found him unfit for further service and referred his case to an MEB, and thereafter changed his physical profile to 1-3-3-3-1-1.

	e.  U.S. Army personnel were fully aware of his medical conditions at the time they placed him on light duties, which he performed with no incidents.  Yet, instead of letting him complete his military obligation, they discharged him 5 months early.

	f.  When he received notification that he was medically disqualified for future retention he immediately placed a call to one of the personal clerks, who identified himself as Specialist T.  The applicant informed this clerk that he was 5 months away from the completion of his 8-year requirement to include IRR Obligation Service.  Specialist T advised him to elect option 2(b) in order to be discharged from the USAR and receive an Honorable Discharge Certificate after his 8-year obligation.

	g.  The applicant contends that he chose this option with the understanding that it would not disqualify him for future retention, either in the Reserve or the Active Army.  At that point, his desire for discharge was interpreted to mean he would be honorably discharged after meeting his reserve obligation.  Further, no one advised him of his right to consult with his legal counsel before he signed the forms.

	h.  The applicant spent 4 years in the Active Army, and nearly 4 years in the Reserve.  He was a diligent and disciplined Soldier, and completed all his duties with exemplary service.  Not once was he placed in any form of disciplinary action, and he served his country with honor.  He served honorably for close to 8 years, even though his medical conditions made it exceedingly difficult for him to withstand the rigors of Active Army life.

	i.  As explained in his personal statement, he had medical conditions that did not preclude him from carrying out his obligations, and, if he was offered the opportunity for rehabilitation, he would have continued to serve his country until he completed his Reserve obligation.  Again, it is important to keep in mind that there is no evidence of any medical problems prior to his combat service.  The applicant contends that the Army should have allowed him to complete his Reserve obligation and not discharge him 5 months early.

	j.  In conclusion, for the foregoing reasons, the applicant should be granted his petition.  The record should be corrected to reflect that he was honorably discharged after completing his military obligation, and not because of medical reasons.  Further, the records should correctly reflect the discharge date of 24 March 2006 and not 3 October 2005.

19.  The applicant also provides a statement that while serving in the IRR he received an order on 13 April 2004 to perform a periodic physical examination at the facility of Medex Urgent Care, 420 Owen Drive, Fayetteville, NC 28304.  Per the order he performed the service without pay.  During this period he was attending Fayetteville Medical Facility's rehabilitation for service­connected injuries, which included lower back pain, chronic shoulder pain, and pseudofolliculitis barbae.

	a.  After the examination, he received two memoranda: one dated 12 December 2004, and the other dated 13 January 2005, not knowing that he had been put under physical profile.  In the ABCMR's decision to deny his previous application, the Board indicated that his physical profile was switched from 1-3-3-2-1-1 to 1-3-3-3-1-1 on 8 December 2004.  He was never referred for further examination nor was he put on any Army rehabilitation.

	b.  The ABCMR decision also states that on 24 November 2004 and 27 January 2005 he acknowledged notification of medical disqualification for future retention in the active Reserve, and/or entry on active duty and he elected discharge from the USAR.  He signed the paperwork, but not before calling the toll-free number provided in the letter (1-800-433-0521) and speaking with one of the personnel clerks.  He explained to this clerk that he was nearing the completion of his IRR obligation service.  The instruction he received was to elect option 2(b) in order to be discharged from the USAR.  He was told that if he elected discharge from the USAR, he would receive an Honorable Discharge Certificate after his obligation.  The memorandum did not indicate that this was disqualification from future retention in an active Reserve status or entry on active duty.

	c.  The ABCMR decision also indicates that on 7 December 2004, the PRB at HRC found him unfit for future service and referred his case to an MEB, and that on 17 March 2005, the Command Surgeon at HRC, St. Louis notified the Director of his lack of qualification for continued military service.

	d.  At that point, he understood that he would be discharged from the USAR honorably after meeting his Reserve obligation.  He was not advised of his rights to consult with legal counsel after engagement of the MEB.  He was not advised of his right to request an independent medical review by an impartial physician or other appropriate health care professional who was not involved in the MEB.  He was not advised of the Army's legal counsel disability process and counsel's general duties during the process even though the law provides benefits to him since he has service-related injuries incurred in the line of duty.

	e.  In conclusion, the fact that he had service-related injuries doesn't mean that he was not fit enough to continue to serve on active duty or in the Reserve Component (RC).  Being discharged 5 months early was unjust, in light of the exemplary service he had provided to the country.  Further, he was never referred to an MEB at the MTF where more rehabilitation and treatment could be offered.

20.  Army Regulation 40-501 governs:

* medical fitness standards for retention and separation
* physical profiles
* medical examinations and periodic health assessments

	a.  Paragraph 9-3 states that it is the responsibility of RC Soldiers to maintain their medical and dental fitness.  This includes correcting remedial defects, avoiding harmful habits, and controlling weight.  RC Soldiers are responsible for seeking medical advice and treatment quickly when they believe their physical wellbeing is in question.  RC Soldiers must report to their unit commander any change in their health status that impacts on their readiness status.

	b.  All RC Soldiers are responsible for providing the unit commander all medical documentation, including civilian health records, and completing the annual physical health assessment.  Civilian health records documenting a change which may impact their readiness status will be placed in the Soldier’s military health record.

	c.  Paragraph 9-10 states, normally, Reservists who do not meet the fitness standards set by chapter 3 and who are not eligible for transfer to the Retired
Reserve per Army Regulation 140-10 will be discharged from the USAR per Army Regulation 135-175 (Army National Guard and Army Reserve - Separation of Officers) or Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations).  Reservists who do not meet medical retention standards may request continuance in active USAR status in accordance with paragraph 9-11.  In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty.  Reservists with non-duty related medical
conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9-12.

	d.  Paragraph 9-12 states RC Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness [for retention].  Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required.

21.  Army Regulation 40-501, chapter 7 states the physical profile serial system is based primarily upon the body systems and their relation to military duties.  Four numerical designations are used to reflect different levels of functional capacity.  These designations are listed below.

* an individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness
* a physical profile designator of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect that may require some activity limitations
* a profile containing one or more numerical designators of "3" signifies that the individual has one or more medical conditions or physical defects that may require significant limitations

22.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61, and DOD Directive 1332.18.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay (serving on active duty) or was the proximate cause of performing active duty or inactive duty training.  Chapter 8 contains the rules and policies for disability processing of RC Soldiers on active duty or on inactive duty for training.  It states, in part, that an RC Soldier will be referred for medical processing through the Army PDES when a commander or other proper authority believes that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.

23.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and the USAR.  Chapter 15 governs the separation of Soldiers for other miscellaneous reasons.  Paragraph 15-1k provides the authority to separate Soldiers who are medically unfit for retention.  It states that discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness, in accordance with Army Regulation 40-501, unless the Soldier requests and is granted a waiver under Army Regulation 40-501, as applicable; is determined fit for duty under a non-duty related PEB fitness determination; or is eligible for transfer to the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, there is an insufficient basis to support his request. 

2.  He certified on an ARPC Form 3725-E that he had medical conditions or physical defects that would prevent his performance of active military service, namely his "lower back pain, left arm arthritis infected and no shaving profile."

3.  A Federal Strategic Health Alliance memorandum showed he was not eligible for retention under provisions of Army Regulation 40-501 and that he should be referred to a non-duty related PEB.

4.  There is no indication his medical condition was the proximate result of performing military duty or that it was further aggravated by active duty, which would have necessitated an MEB.  

5.  Evidence shows he was properly afforded the option of discharge based on being medically disqualified from further service in the active Reserve or providing additional medical documentation to support a non-duty related PEB to show he was fit to remain in the military.  In addition, it appears he failed to provide the information required by AHRC that could have given him what he is now requesting by stating that, since he was an IRR Soldier who was no longer in a TPU, he was not required to send any information to HRC.  He acknowledged, by his own signature, notification of medical disqualification for future retention in the active Reserve, and/or entry on active duty, and he elected discharge from the USAR.  

6.  The available evidence does not support the contention that his act of signing the "complex" form consenting to his medical discharge based on a misguided explanation should not be considered as a valid consent or waiver of the correct procedural guidelines.  The applicant's discharge from the IRR appears to have been administered correctly with no indication of any violations of his rights.  

7.  In view of the foregoing, there is an insufficient basis to grant 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120006746, dated 2 October 2012.




      _______ _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)                                         AR20130000554



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ABCMR Record of Proceedings (cont)                                         AR20130000554



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