BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20130000654 


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 records to show he was medically retired instead of separated from the Texas Army National Guard (TXARNG) for being medically unfit for retention. 

2.  The applicant states if his separation processing had been properly handled, he would have been permanently retired for a degenerative disc disease of the lumbar spine and bilateral knee injuries.  The documents he provides with his application confirm that the findings have been directly linked to his military service-connected injuries and bilateral knee injuries.  He has not been able to obtain gainful employment due to his injuries. 

3.  The applicant provides:

* Active duty for training (ADT) orders
* DA Form 4856-E (Developmental Counseling Form)
* Department of Veterans Affairs (VA) Form 3288 (Request and Consent to Release of Information from Individual's Records)
* New Mexico Warrior Transition Unit (WTU) Sick Slip
* DD Form 689 (Individual Sick Slip)
* DA Form 5181 (Screening Note for Acute Medical Care)
* DA Form 3349 (Physical Profile)
* Certificate showing completion of the Warrior Transition Course
* Mobilization orders and amendments
* Standard Form 600 (Chronological Record of Medical Care)
* DD Form 220 (Active Duty Report)
* Release from active duty orders
* Civilian medical records
* National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement)
* ARNG separation orders
* Decision from the Social Security Administration (SSA)
* VA rating decision

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's records show he was born on XX June 1967.

3.  Having prior service in the U.S. Navy, the applicant enlisted in the TXARNG on 15 September 2006.  He appears to have held military occupational specialty (MOS) 92G (Cook).  He was assigned to the 136th Military Police Company, Tyler, TX. 

4.  He attended and successfully completed the Warrior Transition Course given at White Sands Missile Range, NM, from 17 November to 15 December 2006. 

5.  On 4 December 2006, he was issued a temporary physical profile for back pain.  The physical profile assigned a functional limitation of no lifting or carrying over 30 pounds unless required for wearing flak vest for range and grenade training. 

6.  On 25 June 2007, the TXARNG published Orders 176-004 ordering him to active duty for a period of 400 days in support of Operation Iraqi Freedom.  He was ordered to report to the company's rear detachment effective 25 June 2007 and later to Fort Dix, NJ, effective 28 June 2007.

7.  He entered active duty on 25 June 2007 but he was released from active duty some 25 days later on 19 July 2007.  

8.  On 19 July 2007, he was issued a DD Form 220.  This form shows he had undergone a complete medical examination report for military service on or about 17 July 2007 at Fort Dix, NJ.  His diagnosis was that of bilateral chronic knee pain and back pain.  He did not believe he was medically qualified to perform satisfactory military service.  

9.  Subsequent to his release from active duty, he returned to his ARNG unit under State control.  

10.  On 17 July 2007, he was issued another temporary physical profile for bilateral chronic knee pain and back pain.  The physical profile stated "SM [service member] with chronic pain should be considered for Medical Board if continues on profile." 

11.  On 23 July 2007, he was issued a temporary physical profile.  This profile stated due to multiplicity of muscular-skeletal conditions, which individually may not be disqualifying but collectively rendered him medically unable to perform basic Soldier skills.  He was medically non-retainable in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-41e(1)(2).

12.  On 3 November 2007, he was issued a permanent physical profile for low back pain with radiculopathy and chronic knee pain.  

13.  His service medical records are not available for review with this case.  However, it appears his records were reviewed by the State Surgeon General who determined the applicant was not medically fit for retention in the ARNG.  It also appears he was notified of his disqualifying medical condition.  

14.  On 9 February 2009, he submitted two documents:

	a.  In response to the notification of medical disqualification, he acknowledged receipt of the notification that he did not meet retention standards.  This document also shows he was counseled and presented with four options: (1) an honorable discharge; (2) transfer to the Retired Reserve (if qualified); (3) non-concur and have his case referred to a non-duty related physical evaluation board (PEB), or (4) non-concur and provide a completed and approved line of duty investigation or evidence that his disqualifying condition is duty related.  He elected to be honorably discharged for medical disqualification.

	b.  He submitted a DA Form 4187 (Personnel Action) requesting immediate discharge due to being medically unfit for retention.

15.  On 17 February 2009, officials at the TXARNG Health Services reviewed his medical condition(s) and the request for separation.  An official recommended the applicant be discharged for being medically unfit for retention. 

16.  On 23 February 2009, the TXARNG published Orders 056-1222 ordering his discharge from the ARNG effective 15 February 2009, in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-35l(8) by reason of being medically unfit for retention. 

17.  He submitted various and/or selected documents as follows:

	a.  NM WTC sick slip, dated 27 November 2006.  No chief complaint is listed on this form but it states "Soldier should not run and/or do sit-ups or push-ups; reevaluate as needed." 

	b.  A counseling form, dated 20 November 2006, for failing to meet minimum standards on the Army Physical Fitness Test due to lower back pain and bilateral knee injuries. 

	c.  Screening note for acute medical care, dated 27 November 2006, that shows the chief complaint was back pain and the comments "lower lumbar paraspinal muscle tight, No [sic] history of trauma, no radiating pain and strained lower back."

	d.  NM sick slip, dated 4 December 2006, that shows the chief complaint was that of back pain; Soldier should not run or jump; reevaluate as needed and follow up with primary care physician in 2 weeks. 

	e.  Individual sick slip, dated 8 June 2007, that shows light duty, no lifting greater than 10 pounds, run at own pace, do not operate vehicle or machinery while taking Flexeril, return to clinic  in 3 days.

	f.  Standard Form 600, dated 16 July 2007, that shows his problems as “Back Strain Lumbar, Cervicalgia, Lumbar Spondylosis, Knee Sprain Left & Knee Sprain Right (Internal Derangement of Knee Bilateral).”  The disposition is shown as “Released with work/duty limitations and a physical profile for Cervicalgia 723.1 from 16 July 2007 to 16 October 2007.”  The physician also entered the comments "Soldier is presently unable to participate in any physical obligations; follow up: as needed; Soldier is not fit for duty - suggest with the multiplicity of muscular-skeletal concerns unable to move forward." 
	g.  Civilian medical letter, dated 10 December 2007, wherein a doctor states: “I have reviewed a functional capacity evaluation performed on [Applicant].  It is dated 17 November 2007.  It is the conclusion of the kinesiologist who tested him that he would not be able to meet physical demand requirements of his subjective job description and does not meet medium demand level work.  He does meet regular light duty walking or standing requirements and he is recommended for light duty work only.  It is expected that he will have back pain with prolonged standing or sitting or bending backwards.  He may need to take a break once every hour or two to rest his back.  He probably does not qualify for return to work at times.  If there is no appropriate work available for him at this time then he should be considered completely disabled.” 

	h.  Second civilian medical letter, dated 15 October 2008, wherein a doctor states "the reader is referred to my letter regarding [Applicant's]' work ability from 10 December 2007.  His condition has not changed.  MRI of the lumbar spine; however, in March 2007 has definitively diagnosed substantial lumbar degenerative disc disease with protrusions and desiccation at L4-5 and L5-S1.  He has been treated in our clinic since March 2007 for his severe ongoing low back pain and bilateral knee pain.  He has degenerative disc disease as well as severe osteoarthritis of both knees.  His condition has deteriorated unfortunately since we have started treating him and he is not expected to improve.  This condition prevents him from gainful employment since he is unable to walk, stand, bend, or lift for any effective period of time.  It is also uncomfortable for him to sit for any effective period of time."

	i.  VA rating decision, dated 10 August 2010, that shows the VA awarded him service-connected disability compensation for degenerative joint disease, lumbar spine. 

18.  An advisory opinion was received from the NGB on 21 February 2013 in the processing of this case.  An NGB official recommended the applicant's case be returned without action.  The NGB official stated:

	a.  In consultation with the Chief Surgeon General's Division at the NGB, the applicant's case does not provide the proper documentation to warrant a medical evaluation board.  In light of his injuries that he indicates he sustained while on military duty, there is no Line of Duty (LOD) documentation to support his claims. 

	b.  In a letter, dated 16 July 2007, the Soldier states that he injured his back while on a 3 kilometer ruck march on 26 November-2006, while at a Warrior Transition Course (WTC).  He states that he reported to sick call the following day.  He was issued a profile on 4 December 2006 after aggravating his back injury.  Upon unit mobilization to Fort Dix, NJ on 16 July 2007, he began to have bilateral knee pain, due to marching.  He states that he stepped into a hole and twisted his left knee.  He was given work duty limitations as a result.  This led to him being found unfit for duty.  He was released from active duty effective 19 July 2007.

	c.  After discussing this case with the TXARNG and the Soldier, both state that there was never an LOD done for the Soldier's injuries.  He was found medically unfit for retention standards per Army Regulation 40-501, chapter 3. His discharge was under authority of NGR 600-200 paragraph 8-351(8) implementation policy, published 1 October 2006 which 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.  If the Soldier refuses to report as directed, see paragraph 8-36u below.  Commanders who do not recommend retention will request the Solder's discharge.  When medical condition was incurred in line of duty, the procedures of NGR 40-3 will apply."  The applicant elected to be separated for medical disqualification, per the medical retention standards, in a packet conducted by the State on 9 February 2009.  He was discharged from the ARNG and as a Reserve of the Army effective 15 February 2009.

	d.  He filed a previous ABCMR (Docket Number AR20120026046), where it was determined that he did not provide the necessary documentation to merit a medical evaluation board according to the NGB Personnel Policy Division and the ABCMR letter dated, 18 April 2011.  According to Retirement Services at NGB, the Soldier only had 6 years and 11 months of qualified service for non-regular retirement and therefore would not be eligible for medical retirement.  He did not have sufficient service to receive a 15 year notice of eligibility if his medically unfit condition was non-LOD related.  His total 19 years that he references in his request were mostly in an inactive status which does not qualify.  His case is not in compliance with Title 10 U.S. Code, Section 1206.

19.  The applicant was provided with a copy of this advisory opinion but he did not respond with any medical documents or other documents rebutting the advisory opinion. 

20.  NGR 600-200 prescribes the criteria, policies, processes, procedures and responsibilities to classify, assign, utilize, and transfer within and between states, enlisted Soldiers of the ARNG.  Paragraph 8-35c states Soldiers may be discharged for being 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.
21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several LOD criteria to be eligible to receive retirement or severance pay benefits.  One of the criteria is that the disability must have incurred or been aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  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.  Separation by reason of disability requires processing through the PDES.

22.  Department of Defense (DOD) Directive 1332.18 covers separations or retirement for physical disability.  Paragraph 3.3 states the sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank, or rating because of disease or injury.  

23.  DOD Instruction 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for service members with service-incurred or service aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.  Paragraph E2.P2.3 states members of the Ready Reserve with non-duty related impairments and who are otherwise eligible will be referred into the PDES upon the request of the member or when directed under service regulations.  Referral will be solely for a determination of fitness for duty.

24.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.

	a.  Paragraph 3-3 (Disposition) states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635-40 with the following caveat:  U.S. Army Reserve or ARNG Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 9 and chapter 10 of this regulation.
	b.  Paragraph 3-4 (General Policy) states possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service.  Physicians are responsible for referring Soldiers with conditions listed below to an MEB.  It is critical that MEB's are complete and reflect all of the Soldier's medical problems and physical limitations.  The PEB will make the determination of fitness or unfitness.  The PEB, under the authority of the U.S. Army Physical Disability Agency, will consider the results of the MEB as well as the requirements of the Soldier's MOS in determining fitness.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows he was ordered to active duty on 25 June 2007 but upon arrival at the mobilization station, he underwent a complete medical examination for military service on or about 17 July 2007 at Fort Dix, NJ.  His diagnosis was that of bilateral chronic knee pain and back pain.  He did not believe he was medically qualified to perform satisfactory military service.  Since he was not qualified for mobilization, he was released from active duty to the control of the state. 

2.  Although the complete facts and circumstances surrounding his subsequent discharge from the ARNG together with his service medical records are not available for review with this case, the available evidence shows he was issued a series of physical profiles that presumably led to a review of his medical records by a fitness-for-duty evaluation board at the State level and he was determined to be medically disqualified.

3.  The determination of unfitness for retention in the ARNG would have provided him with four options: an honorable discharge, transfer to the Retired Reserve (if otherwise qualified), consideration by a non-duty related PEB, or if he had an injury that occurred while on active duty, consideration by an MEB with possible referral to a PEB.  He elected an honorable discharge. 

4.  Nothing in his records shows he incurred an injury or an illness while on active duty.  For example, his service record is void of a DA Form 2173 (Statement of Medical Examination and Duty Status) documenting any injuries or illnesses, a line of duty determination that such injuries or illnesses did in fact occur while on duty and not due to own misconduct, a determination by his commander that a given injury or illness rendered him unable to perform the duties required of his former grade and military specialty, a narrative summary documenting a diagnosed medical condition as failing retention standards, or a separation physical that confirm the existence of a condition that warranted his entry into the physical disability evaluation system. 

5.  An award of a rating by another agency does not establish an error by the Army. Operating under different laws and its own policies the VA and SSA do not have the authority or the responsibility for determining medical unfitness for military service.  The VA for example may award ratings because of a medical condition related to service (service-connected) and which affects the individual's civilian employability.

6.  The applicant was counseled and advised of his rights.  He acknowledged receipt of the notification of unfitness finding.  He indicated he did not wish to contest his medical disqualification.  He fully understood his records would not be processed into the PDES and he would not be awarded any possible disability disposition addressed in the PDES.

7.  There is insufficient evidence to grant him the requested relief.

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)                                         AR20130000654



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ABCMR Record of Proceedings (cont)                                         AR20130000654



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