IN THE CASE OF: 

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130001222 


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 reinstatement on active duty for the purpose of undergoing a medical evaluation and disability retirement if he is found unfit.  He also requests removal of a memorandum of reprimand (MOR) from his records.

2.  He states he was injured while working at "ground zero" in New York City (NYC) after the attacks on 11 September 2001.  He was receiving medical attention, yet he was released from active duty without any contingency for his medical hardship.  He was placed on medical hold and was not allowed to drill (participate in scheduled Reserve Component inactive duty training), receive medical attention, or continue his military career.  He went before a Military Occupational Specialty (MOS) Medical Retention Board (MMRB) at Fort Totten, NY, and he was found unfit for duty.  He was referred to a physical evaluation board (PEB) at West Point, NY, but he did not receive orders from the U.S. Army Reserve Command (USARC) to proceed.  He was honorably discharged in the rank/grade of captain (CPT)/O-3 in March 2010 even though he had been promoted to major (MAJ)/O-4.  His rank, pay, and retirement were taken from him due to placement of his records on medical hold.

3.  He states he has received a 100-percent service-connected disability rating from the Department of Veterans Affairs (VA).  He believes he fell through the cracks as there was no Warrior Transition Program during the period 2002 to 2006.  The Army's error was discovered when he received honorable discharge orders, dated March 2010.  He was injured in 2001, yet he was honorably discharged in 2010.


4.  He provides:

* memorandum, dated 14 October 2003, subject:  Notification of MMRB Proceedings
* memorandum, dated 19 November 2003, subject:  Summary of MMRB Proceedings
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 25 March 2005
* DA Form 4187 (Personnel Action), dated 29 July 2002
* memorandum, dated 29 July 2002, subject:  Request for Active Duty Medical Extension (ADME) Status
* letter from the Director, NYC Public Affairs Office, U.S. Marine Corps (USMC), dated 23 March 2005
* self-authored statement, undated
* witness statement, dated 12 October 2001
* memorandum for record (MFR), dated 22 June 2002, subject:  Back Injury of (Applicant)
* VA letter, dated 24 September 2012
* orders
* Honorable Discharge Certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3349 (Physical Profile), dated 12 November 2003
* USARC Form 46-2-R (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty), dated 7 December 2004
* front side of DA Form 67-9 (Officer Evaluation Report) for the period ending 3 April 2002
* DA Form 67-9 for the period ending 10 July 2000

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.  On 28 May 1991, the applicant entered active duty as a commissioned officer.  On 1 June 1995, he was promoted to CPT/O-3.  On 24 October 1995, he was released from active duty and transferred to the USAR.

3.  On 10 September 2001, the U.S. Total Army Personnel Command (currently known as the U.S. Army Human Resources Command (HRC)), St. Louis, MO, issued Orders A-09-001368 ordering him to active duty in the Office of the Chief of Public Affairs (OCPA), NYC Office, no later than 1 October 2001 for a period of 145 days in support of Fleet Week 2002/Armed Forces Salute Week 2002.

4.  On 16 October 2003, HRC, St. Louis, MO, issued Orders D-10-338870 discharging him from the USAR effective 1 December 2003.  His records show he was discharged because he was twice non-selected for promotion to MAJ.

5.  A DA Form 3349, dated 27 October 2003, shows the applicant had been diagnosed with back pain and lumbosacral disc disease.  He was assigned a permanent PULHES (P-physical capacity or stamina, U-upper extremities, 
L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric) rating of "3" for rating factor "L."  All other rating factors were rated as "1."  The physical profile imposed Army Physical Fitness Test (APFT) limitations of no running, walking, push-ups, or sit-ups.

6.  In a memorandum dated 29 October 2003, subject:  Notification of MMRB Proceedings, MAJ (Promotable) G____, Chief, Army Public Affairs-NY, stated he recommended the applicant retain area of concentration (AOC) 46A (Public Affairs).  The memorandum shows MAJ G____ praised the applicant's performance and noted that although the applicant had required therapy for his back, this had not hindered his ability to accomplish his work.

7.  In a memorandum for the Commander, 77th Regional Readiness Command (RRC), dated 19 November 2003, subject:  Summary of MMRB Proceedings, the MMRB President stated the MMRB found:

	a.  The applicant was unable to perform any events of the APFT and he was unable to lift any weight.  He was injured in 1992 while serving on the U.S. Army Athletic Team.  An Army physician had never seen him.  He walked with a very visible limp and was in constant pain.  The MMRB determined he should go before a medical evaluation board (MEB) as he was hurt in the line of duty while serving on active duty and could be afforded compensation for his injury.

	b.  The applicant's supervisor during his active duty tours with OCPA-NYC indicated that at no time had "his liability hindered his ability to perform."

8.  In a memorandum for the Commander, Keller Army Community Hospital, West Point, NY, a personnel officer from Headquarters, 77th RRC, requested that the applicant be scheduled for an MEB based on the MMRB's findings.  The memorandum stated the applicant's case would be forwarded to a PEB regardless of the MEB findings and recommendations so long as he retained a "P3" physical profile.  If his physical profile was upgraded to "P2" and he was found to meet retention standards, he would be returned to duty.

9.  The available records are void of documentation showing an MEB or a PEB reviewed the applicant's case.

10.  On 3 June 2004 in ABCMR Docket Number AR2003095149, the ABCMR reviewed the applicant's request for reinstatement in the USAR, approval of an education waiver, consideration for promotion to MAJ/O-4, and processing through the Physical Disability Evaluation System (PDES).

	a.  Based on the evidence available at that time, the Board recommended correction of the applicant's records by voiding his 1 December 2003 discharge, reinstating him in the Individual Ready Reserve, and scheduling him for an MEB at the earliest possible date.

	b.  The Board further recommended that if he were found medically fit for retention, correction of his records to show he was granted a military education waiver, submission of his corrected records to a special selection board, and that, if selected, promotion to MAJ/O-4 and assignment of the appropriate date of rank.  If not selected, the Board recommended his discharge.

11.  On 12 August 2004, HRC issued Orders D-10-338870R rescinding Orders D-10-338870, thereby reinstating him as an officer in the USAR.

12.  A DD Form 2808 (Report of Medical Examination), dated 27 September 2004, shows the applicant underwent a medical examination.  The clinical evaluation portion of the form shows abnormal findings for the lower extremities (pain and range of motion) and spine (lower back pain).  Item 74a (Examinee/Applicant is/is Not Qualified for Service) shows he was found qualified for service pending review.  He was assigned a PULHES rating of "3" for rating factor "L."  Examining medical personnel recommended, in part, that he have magnetic resonance imaging of his lower spine and referral to a neurologist.

13.  A DD Form 2807-1 (Report of Medical History), dated 27 September 2004, shows the applicant reported, in part:

* he incurred an injury to his back in the line of duty
* his back injury was a "severe injury from Ground Zero on 9/11"
* he had been unable to perform his civilian job due to an injury he suffered at "ground zero" on 9/11
* he had had surgery for his knees and back
* he had undergone "constant treatment for injury suffered on duty while working at Ground Zero after the attacks"

14.  A Functional Capacity Certificate, dated 27 September 2004, shows he indicated he was unable to perform many of the physical activities listed.  He indicated he had had lower back trauma and degenerative disc disease.  The physician who signed the form indicated his limitations were permanent.

15.  A memorandum, dated 4 November 2004, subject:  Results of Retention Physical Examination, shows the following findings:

* physically fit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness)
* results of physical examination required review and appropriate action by the command surgeon
* abnormal finding for cholesterol
* no physical abnormalities

16.  A DA Form 3349, dated 25 February 2005, shows the applicant was diagnosed with chronic low back pain with degenerative disc disease.  He was assigned a permanent PULHES rating of "3" for rating factor "L."  All other rating factors were entered as "1."  A note on the form states, "Does not meet medical retention standards AR 40-501 3-39h."

17.  In an e-mail, dated 16 March 2005, Mr. H____, Chief, Military Personnel Services, Fort Dix, NJ, notified an officer at HRC-St. Louis that he had reviewed two DA Forms 2173 pertaining to the applicant, dated 2 January 2003 and 29 July 2002.  He stated he returned the forms to the Office of the Director, Army Public Affairs-NY.  He also stated he attached a memorandum he had forwarded to the Director.

18.  In a memorandum to Mr. Z____, Director, Army Public Affairs - New York Branch, dated 16 March 2005, subject:  Line of Duties (LOD) Pertaining to (Applicant), Mr. H____ stated he was returning two DA Forms 2173 for correction and resubmission through Mr. H____'s office.  Mr. H____ identified the following problems:

	a.  Army Regulation 600-8-1 (Army Casualty Program) requires a Soldier to be serving on active duty at the time of the illness or injury.  There were no mobilization orders attached for either DA Form 2173 showing the applicant was serving on active duty when he was injured.

	b.  There was no attached documentation showing the medical care the applicant received for either of his injuries.  Mr. H____ stated medical documentation should indicate whether the injury would require future medical care or could result in a future medical claim after release from active duty.

	c.  There was no statement from the applicant or a witness as to how the injuries happened.

	d.  There was no evidence indicating Mr. Z____ had been granted informal LOD determination signature authority by the commander exercising special court-martial convening authority.  A copy of the delegation was to accompany the DA Forms 2173.  If Mr. Z____ did not have signature authority, the action was required to be submitted to the Casualty Area Command (CAC) for review and final approval.  Mr. H____ also stated that in no case were LOD determinations to be forwarded without going through the CAC.

19.  In an e-mail, dated 9 May 2005, MAJ I____, a Patient Administration Officer at HRC-St. Louis, forwarded a memorandum from the Chief, Personal Affairs Branch, HRC, to Mr. H____.  MAJ I____ indicated an attached memorandum stated the applicant's LOD determinations were invalid.

20.  On 13 June 2005, Mr. H____ responded to MAJ I____.  He stated he had in his possession an LOD determination pertaining to the applicant.  The DA Form 2173 was dated 25 March 2005 and the forwarding document was dated 30 March 2005.  He indicated the packet was complete and the correct documentation was attached along with statements from witnesses and mobilization orders.  He stated he would process the documents and forward them to HRC.  Mr. H____ also stated he had been holding the documents until he heard that an investigation was complete.

21.  A report prepared by a U.S. Army Criminal Investigation Command (CID) special agent (SA), dated 30 September 2005, shows the CID SA investigated matters related to the applicant's LOD injury claim.

	a.  The investigative activity was predicated on the suspicion of two officers in the Office of the Surgeon, HRC, that the applicant filed a false and possibly forged document, specifically an Army Reserve Personnel Center (ARPC) Form 3907 (Physician's Incapacitation Statement), in support of an LOD injury claim and subsequently used the same document in a claim before the ABMCR seeking reinstatement in the USAR.

	b.  The CID SA found the applicant was assigned to temporary duty in Norfolk, VA, when the attack on the World Trade Center (WTC) occurred.  He requested amended orders to NYC to assist in the emergency operations.  His orders were amended and he proceeded to NYC on or about 12 September 2001.  The applicant claimed he was injured while working at the WTC during the first few days he was present.  He continued to work until approximately 9 October 2001, when he became physically unable to work.  On that date, he was at his home of record when pain in his back caused him to call an ambulance.  He was taken to the emergency room at Victory Memorial Hospital, NYC.

	c.  On 2 January 2003, the applicant filed the first of three requests for LOD (incapacitation) pay.  The requests were filed through his chain of command.  Through discussions with personnel at HRC, it was determined that none of the LOD pay requests were signed by the appropriate officials and were therefore invalid.  Despite that fact, the Office of the Surgeon, HRC, approved the LOD determination and approved payment.  HRC believed the applicant should have been held responsible for the fact that he did not file the LOD request properly and indicated HRC might seek reimbursement of any payments made.  The applicant had re-filed his request and it was working its way through the system.

	d.  Regarding a third ARPC Form 3907, HRC believed the applicant may have falsified the signature of Dr. W____ F____ and submitted the form to the Office of the Surgeon, HRC, and the ABCMR.  Dr. F_____ stated he did not sign the third ARPC Form 3907.  The applicant provided a statement as to how the form came to be signed and the statement was included in the case attachments.  The CID SA summarized the applicant's statement, stating the applicant claimed another employee of Patterson Army Health Clinic provided the signed form and represented the signature to be that of Dr. F____.  To date, the person had not been positively identified.  HRC personnel did not believe an employee of the clinic would have falsified Dr. F____'s signature, potentially risking his or her job.

	e.  The CID SA stated a review of the Investigative Data System met with negative results.  He indicated the information in his report had been provided to the Defense Criminal Investigative Service for appropriate action.

22.  On 3 April 2006, Colonel C____, Commander, HRC-St. Louis, reprimanded the applicant for misrepresenting his status on two occasions.

	a.  In January 2003, he misrepresented himself as an MAJ on a voided personal check when he submitted a claim for incapacitation pay to HRC.  He had neither been selected for nor promoted to MAJ at the time.

	b.  On or about 8 April 2004, he misrepresented that he was assigned to OCPA-NYC when he faxed a visa request to the Indian Military Attaché to the United States in Washington, DC.  At the time he submitted the document, he had no status as a member of the U.S. Army.

23.  In her MOR, the Commander, HRC-St. Louis, stated she was extremely troubled by his pattern of misrepresentation of his rank and status as an Army officer.  She stated he had shown an affirmative lack of integrity and honesty as an officer and his actions had no place in the U.S. Army.  She stated she intended to file the MOR in the performance folder of his Official Military Personnel File (OMPF) (currently known as Army Military Human Resource Record (AMHRR)); however, she would consider any matters he submitted before making her final filing recommendation.

24.  In an e-mail regarding ABCMR Docket Number AR2003095149, dated 6 September 2006, the Chief, Promulgation Team, Army Review Boards Agency (ARBA), St. Louis, MO, informed the Chief, Promulgation Team, ARBA, Arlington, VA, that HRC would not conduct an MEB until the issue of the LOD was resolved.  Since HRC could not proceed without a valid LOD, in the absence of a valid finding of fitness for duty, the other actions directed by the ABCMR (e.g., an education waiver and an SSB) could not be acted on.  The author of the e-mail requested procedural guidance.

25.  Remarks in the ARBA Case Tracking System for ABCMR Docket Number AR2003095149 show a former Director of the ABCMR determined on or about 11 September 2006 that there was no purpose in keeping the case open.

26.  On 18 September 2006, Major General H____, Commander, HRC, stated he had considered the applicant's MOR.  He stated the MOR had been mailed to the applicant's official address of record by certified mail, but the applicant failed to claim the envelope.  He directed filing the MOR with enclosures and the memorandum documenting his filing decision in the applicant's AMHRR.  These documents are currently located in the performance folder of the applicant's AMHRR.

27.  On 2 November 2006, HRC-St. Louis issued Orders B-11-608218 promoting the applicant to MAJ/O-4 effective 21 September 2006.  The orders were revoked on 17 November 2006 by Orders B-11-608218R issued by the same headquarters.

28.  A Periodic Health Assessment (PHA), dated 30 October 2008, shows the applicant stated he had been injured while working in the recovery efforts at "ground zero" in NYC in September 2011 and he had been cleared to resume duty by a physician.  The form shows he was assigned a PULHES rating "1" in all rating factors.  An associated Functional Capacity Certificate shows he reported no limitations.

29.  On 18 March 2010, HRC-St. Louis issued Orders D-03-005200 honorably discharging the applicant from the USAR in the rank/grade of CPT/O-3.  His records show he was discharged because he was twice non-selected for promotion to MAJ.

30.  The applicant provides several documents in support of his request.

	a.  His DA Form 67-9 for the rating period 2 December 1999 to 10 July 2000 shows he was rated for principal duty as a Public Affairs Officer with OCPA-NYC Branch, and that he received ratings of "Outstanding Performance, Must Promote," "Best Qualified," and "Above Center of Mass."

	b.  HRC-St. Louis issued:

		(1) Orders T-08-115067, dated 30 August 2001, ordering him to active duty for training (ADT) for 12 days and attaching him to a unit in Norfolk, VA, with a reporting date of 10 September 2001;

		(2) Orders T-08-115067A01, dated 13 September 2001, amending Orders T-08-115067 by amending the period of active duty to 21 days;

		(3) Orders A-09-001368A01, dated 19 February 2002, amending Orders A-09-001368 to show his period of active duty as 173 days with an ending date of 22 February 2002; and

		(4) Orders T-03-203667, dated 22 March 2002, ordering him to ADT for 12 days with duty at OCPA-NYC with a reporting date of 23 March 2002.

	c.  A witness statement, dated 12 October 2001, shows CPT J____ L. D____ stated he witnessed the applicant's injury while he was digging through debris at "ground zero."

		(1) He first witnessed the applicant cry out in pain in the evening hours of 12 September 2001 when he removed his oxygen mask and began rubbing his lower back after attempting to move a piece of debris.  When asked, he indicated he was okay.  He went to a water truck and took a 30-minute break.

		(2) On 8 October 2001, he again witnessed the applicant cry out in pain when he fell to his knees while attempting to remove his harness from his waistline.  He drove the applicant home to his apartment in Brooklyn.

		(3) In the early morning hours of 9 October 2001, he received a call from the applicant asking to come get him as he had collapsed on his bathroom floor while trying to tie his shoes.  Since he was already in Manhattan, he told the applicant to call an ambulance and have himself taken to a hospital.

	d.  The front side of his DA Form 67-9 for the rating period 21 May 2001 through 3 April 2002 shows he was rated for principal duty as Director of Community Outreach, OCPA-NYC.  He did not provide the reverse side of the form; however, the copy in his AMHRR shows he received ratings of "Outstanding Performance, Must Promote," "Best Qualified," and "Center of Mass."

	e.  An MFR, dated 22 June 2002, subject:  Back Injury of (Applicant), shows MAJ R____ stated the applicant, who was on duty in his office, called on 9 October 2002 to inform him he did not think he would be able to make it to work that day because his back had gone out.  He went to the applicant's home and the applicant was being carried out on a stretcher by an ambulance crew when he arrived.  The applicant returned to duty in a few days.

	f.  A memorandum, dated 29 July 2002, subject:  Request for ADME Status, shows the applicant requested extension on active duty to receive medical treatment for a back injury incurred while serving on active duty.

	g.  A DA Form 4187, dated 29 July 2002, shows the Director, Army Public Affairs, NY, approved the request for ADME.

	h.  A DA Form 3349, dated 12 November 2003, shows he was assigned a permanent rating of "3" for PULHES factor "L" with a rating of "1" for the remaining factors.  He was to be referred to an MMRB.

	i.  A memorandum from the 77th RRC, dated 19 November 2003, subject:  Summary of MMRB Proceedings, shows an MMRB referred the applicant to an MEB for a duty-related condition.

	j.  A USARC Form 46-2-R, dated 7 December 2004, shows a physician at Walter Reed Army Medical Center, Washington, DC, examined him and found he was not fit to perform military duties from 2 January to 31 March 2004.  He was diagnosed with chronic lumbar back pain and lumbar disc disease.  The form shows he was assigned a rating of "3" for PULHES factor "L" with a rating of "1" for the remaining factors.

	k.  In a letter, dated 23 March 2005, MAJ (USMC) D____ C. A____, Director, NYC Public Affairs Office, USMC, stated the applicant played an integral role in the search and rescue efforts after the WTC attacks.  He stated the applicant suffered injuries to his back while removing debris at the WTC site and continued to work until his injuries caused him to be ineffective.

	l.  A DA Form 2173, dated 25 March 2005, shows he was admitted to a hospital on 9 October 2001 with "severe back pain trauma and spasms" incurred while digging for remains at "ground zero."  He was serving on active duty at the time and his injuries were found to have been incurred in the LOD.  The form was signed by a physician and Lieutenant Colonel (formerly MAJ) G____.

	m.  A letter from the VA, dated 24 September 2012, shows the applicant has been assigned a 100-percent service-connected disability rating from that agency.  The letter does not show the basis for that rating.

31.  On 12 April 2013 during the processing of this case, the Command Surgeon, HRC, provided an advisory opinion.  The Command Surgeon stated he had reviewed the applicant's case and his request to be brought on active duty for medical care and an MEB.  He stated:

	a.  First, the applicant receives 100-percent service-connected disability from the VA and activation to undergo an MEB to determine his fitness for duty does not make sense.  He can continue his medical care with the VA.

	b.  Second, the applicant asserts he was denied promotion to MAJ/O-4, active duty pay, and retirement due to a medical hold placed in his records.  The record shows he received an MOR and the CG, HRC, directed placement of the MOR in his AMHRR.  His promotion orders were revoked as a result.  Regarding active duty service, he was an IRR Soldier on temporary active duty orders to assist in recovery efforts after 11 September 2001.

	c.  Finally, a review of his records shows he has a valid LOD determination for the injury he received while he was on orders.  He went before an MMRB in November 2003, he was found unfit to serve in his AOC, and he was referred to an MEB.  This did not occur.  In October 2006, he was seen and treated for back pain/muscle spasms.  He does not have a current PHA, but his most recent PHA (from 2008) showed he had no limiting medical conditions and a rating of "1" in all PULHES factors.  Based on the most recent PHA, he is not eligible for an MEB.  Soldiers are referred to an MEB when they have a "3" or "4" among their PULHES ratings.

32.  On 15 May 2013, the applicant responded to the advisory opinion.  He states:

	a.  The permanent PULHES rating of "113111" he received on 12 November 2003 disputes the advisory official's claim that he never had a PULHES rating with a "3."  He should have been sent to an MEB based on the MMRB's findings.  His PULHES rating today would certainly be "115[sic]111" after numerous surgeries at his own expense.  His initial request to the ABCMR stands:  he should never have been released from active duty.

	b.  The advisory official indicates his promotion to MAJ/O-4 was revoked due to an MOR, which he has now seen for the first time.  The MOR should be expunged for the following reasons:

		(1)  He had run out of checks.  Understanding that his exemplary record and past above-zone promotions in the Regular Army made him a primary candidate to be selected for MAJ/O-4 and not wanting to spend another $25, he ordered checks showing his rank as MAJ.

		(2)  As an IRR Soldier on duty to earn retirement points (unpaid, as he was injured and could not be placed on orders until he was medically cleared) in the OCPA-NYC Branch, he followed up with a previous inquiry received while he was serving on active duty in the same office.  He sent a letter and he was informed that the letter should have been cleared.  The error was corrected the same day.  He did not hear anything more about it, and he is surprised to see that the matter was addressed in the MOR.  The statement that he "had no status as a member of the U.S. Army" is disingenuous, as he has orders releasing him from the USAR in March 2010.  The MOR is dated 2 April 2006.

	c.  The advisory official claims his most recent PHA shows he denied having any medical issues and his PULHES rating shows no severe medical conditions.  On the contrary, it was his belief that after almost 5 years of not being processed medically for the injuries he received on active duty he knowingly attempted to volunteer for an overseas assignment even though he knew he was severely incapacitated and would have failed a more extensive physical.  He also wished "to create a spasm" in the HRC Office of the Surgeon over the fact that he was still listed as being on medical hold a full 7 years after his MMRB.



	d.  The reasons he applied to the ABCMR are:

* he should have been placed on extension orders due to medical reasons when his existing orders expired in 2002
* he should have been medically retired with TRICARE benefits while also receiving VA medical benefits as is the norm for injured Soldiers
* had the HRC Office of the Surgeon correctly noted that he had a permanent PULHES rating of "113111," he would not be in this position all these years later
* he was never allowed to drill or serve on active duty due to being on medical hold for 7 years until his discharge in March 2010
* there was no communication regarding his status even after he made numerous telephone calls over the years, which is shameful
* after undergoing numerous surgeries at his own expense, he finds the Army was negligent and uncooperative in doing its part to take care of Soldiers

	e.  He asks that the MOR be viewed in the context of his entire service.

33.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement.  Chapter 3 lists the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Paragraph 3-39h provides that a Soldier will be referred to an MEB for non-radicular pain involving the cervical, thoracic, lumbosacral, or coccygeal spine, whether idiopathic or secondary to degenerative disc or joint disease, that fails to respond to adequate conservative treatment and necessitates significant limitation of physical activity.

34.  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.  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.

	a.  Chapter 3 states that under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following LOD criteria to be eligible to receive retirement and severance pay benefits.

		(1)  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 training.

		(2)  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.

	b.  Chapter 3 further states LOD decisions are reached according to policies and procedures prescribed in Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations).  Copies of the LOD decision, DA Form 2173, or DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status) must be included in the official records of the case.

	c.  Chapter 4 contains guidance for processing through the PDES, which includes convening an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

35.  Army Regulation 600-8-4 states LOD investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an LOD investigation may or may not be required to make this determination.  Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated.  Documentation for an informal LOD investigation typically consists of a DA Form 2173 completed by the medical treatment facility and the unit commander and approved by the appointing authority, State Adjutant General, or higher authority.

36.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual AMHRRs; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual AMHRRs; and ensure that the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from AMHRRs.  It states unfavorable information that should be filed in the AMHRR includes indications of substandard leadership ability, promotion potential, morals, and integrity.

	a.  The regulation provides that an administrative MOR may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

	b.  An MOR may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance folder.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached.  Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

	c.  Once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

	d.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

	e.  If an appeal is denied, a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance folder.  The appeal will be placed in the restricted folder of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record partially supports the applicant's request for reinstatement on active duty for the purpose of undergoing a medical evaluation.

2.  In 2004, the ABCMR determined the applicant would be processed through the PDES for injuries he incurred while he was serving on active duty.  His processing was effectively cancelled in 2005 because officials at HRC claimed they were unable to verify the LOD status of his injuries.

3.  Contrary to what HRC determined in 2005, in his advisory opinion the HRC Command Surgeon states the applicant has a valid LOD determination for the injury he received while he was on active duty orders.  It is unclear which document the advisory official believes records the valid LOD determination, but the preponderance of evidence supports his assertion.

	a.  On 29 July 2002, the applicant was approved for ADME.

	b.  In 2003, an MMRB referred him to the PDES based on an injury he incurred in 1992 while he was serving on the U.S. Army Athletic Team.  It is noted that the MMRB did not indicate he was injured on active duty in 2001.  Notwithstanding the MMRB's silence on an injury incurred in 2001, the MMRB did find he was injured in the LOD and could be afforded compensation for his injury.

	c.  In June 2005, an official at Fort Dix, NJ, indicated he was forwarding a DA Form 2173, dated 25 March 2005, and supporting documents to HRC.  He indicated the packet was complete and the correct documentation was attached along with statements from witnesses and mobilization orders.  The official did not indicate that there was any reason to question the validity of the documents he was forwarding.

	d.  There is insufficient documentation available to refute or confirm HRC's suspicion that the applicant provided falsified records.  An investigation did not result in charges, nonjudicial punishment, or a reprimand.

4.  Effective 1 December 2003, shortly after the MMRB referred him to the PDES, he was discharged, an action the ABCMR later determined was inappropriate because his PDES processing was pending.  Once the ABCMR had determined the applicant's discharge would be revoked and he would be processed through the PDES, HRC was assigned the task of processing the case.

5.  There is no question that HRC staff members were responsible for scrutinizing the documentation submitted for the purpose of verifying the applicant's entitlement to PDES processing.  A convincing finding that records had been falsified would have been a basis for HRC to stop the PDES processing directed by the ABCMR.  However, in the absence of a convincing finding, HRC should have proceeded as directed.  Considering that the Command Surgeon, HRC, now states the applicant has a valid LOD determination, it appears there is no barrier preventing processing the applicant through the PDES.

6.  The advisory official notes the applicant's 2008 PHA showed no limiting medical conditions and a rating of "1" in all PULHES factors.  The advisory official asserts that, based on the most recent PHA, he is not eligible for an MEB because a Soldier is referred to an MEB when he or she has a "3" or "4" among the PULHES ratings.  The advisory official's emphasis on the 2008 PHA is understandable; however, the assessment the applicant received in 2008 is not the issue in this case.  The issue is whether the applicant was treated equitably under the governing regulations when he was denied PDES processing following the MMRB's recommendation in 2003 and the ABCMR recommendation approved in 2004.

7.  The advisory official also asserts that because the applicant has received a 100-percent service-connected disability rating from the VA, there is no point in processing him through the PDES.  This assertion misses the point.  If he was unfairly deprived of PDES processing, he should now be afforded the opportunity to undergo that processing.  The benefits he is now receiving from the VA have no bearing on whether his PDES processing was conducted properly.

8.  There is no evidence of error in the ABCMR's original determination that the applicant should be processed through the PDES and there is insufficient convincing evidence to show that, once started, his PDES processing should have been halted due to the possibility that falsified documents had been submitted.  He should now be afforded the opportunity to be processed through the PDES for a determination of fitness.

9.  Regarding the MOR in his record, there is a lack of clear and convincing evidence that the document is untrue or unjust, and it should not be removed.  Once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  To remove a document requires evidence of a clear and convincing nature that the document is untrue or unjust.

	a.  He had neither been selected for nor promoted to MAJ when he misrepresented such on a personal check in January 2003.  There is no evidence of error in this statement in the MOR.

	b.  He was discharged on 1 December 2003 and his discharge was not revoked until 12 August 2004.  On or about 8 April 2004, during the period when he had no military status, he misrepresented himself as being assigned to OCPA-NYC when he faxed a visa request to the Indian Military Attaché to the United States in Washington, DC.  The record supports this statement in the MOR.

10.  He indicates he recently saw the MOR for the first time.  The MOR was referred to him at his official address of record for comment and/or rebuttal, but he failed to claim the envelope.  His failure to claim official correspondence at his official address of record is not a basis for removing the MOR.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____ 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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by having the Office of the Surgeon General contact the applicant to arrange a physical evaluation via appropriate medical facilities through the use of invitational travel orders.

	a.  In the event 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.

	b.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

	c.  If a determination is made that he should have been separated through the PDES, this Record of Proceedings serves as the authority to:

* void his discharge from the USAR
* issue the appropriate disability separation
* pay him all back retired/severance pay less any entitlements already received

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his MOR or reinstating him on active duty.





      __________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)                                         AR20130001222



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ABCMR Record of Proceedings (cont)                                         AR20130001222



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