BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20130002613 


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 discharged/retired instead of honorably released from active duty on 22 January 2006 by reason of completion of his required active service.

2.  The applicant states:

	a.  His military records are in error or unjust.  The battalion executive officer (XO) requested a military occupational specialty (MOS) Medical Retention Board (MMRB) due to his medical condition after being injured by a roadside bomb.  He had been offered to go through the medical review board while he was at Walter Reed Army Hospital recovering from his injuries but he wanted to try and go back to Iraq.  He was determined to continue to fight for his country even though doctors in the hospital told him he would not be able to.  Unfortunately, they were correct, which is why the request for an MMRB was made by the battalion XO (Major (MAJ) T----- B. M------) and the point of contact (Sergeant (SGT) T--- D. 
D----).  

	b.  The request was made for his separation and the paperwork was lost.  The last document the applicant saw is the memorandum from the XO, dated 17 June 2008.  He has tried to contact numerous resources, such as his Pennsylvania Army National Guard (PAARNG) unit at Indiana, PA and Mount Pleasant, PA; a colonel at Fort Indiantown Gap who should have processed the request; and a congressman.  He has not received any response besides that it was being looked into or there was not anything they can do at their position and they do not know who he should discuss his situation 

with.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 25 June 2009 shows in item 18 (Remarks) he was issued a permanent profile prior to the expiration of his term of service (ETS) discharge for unresolved medical issues.

3.  The applicant provides:

* NGB Form 23B (ARNG Retirement Points History Statement), prepared on 3 May 2010
* NGB Form 22
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 January 2006
* DA Form 2173 (Statement of Medical History and Duty Status), dated
8 November 2005
* AF Form 3899 (Aeromedical Evacuation Patient Record), undated
* Memorandum from MAJ M-----, PAARNG, subject:  Request for Permanent Profile and MMRB, dated 17 June 2008
* Radiological Examination Report, dated 15 November 2005
* Purple Heart Certificate, dated 8 September 2005

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, and 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 enlisted in the PAARNG on 26 June 2003.  He was trained in and he held MOS 11B (Infantryman).

3.  On 19 January 2005, he was ordered to active duty in support of Operation Iraqi Freedom.  He subsequently served in Kuwait/Iraq from 12 June 2005 to 25 August 2005.

4.  On 24 August 2005, he sustained a pulmonary contusion, liver laceration, right kidney laceration, and a right lower lung collapse due to an improvised explosive device (IED) explosion.

5.  On 22 January 2006, he was honorably released from active duty in accordance with Army Regulation 635-200 (Personnel Separation – Active duty Enlisted Administrative Separation), chapter 4, by reason of completion of required active service.  He completed 1 year and 4 days of creditable active service.

6.  After his release from active duty, he continued to drill with his ARNG unit.  His NGB Form 23B, dated 3 May 2010, shows the following inactive duty training (IDT) and or membership (MEM) points were earned after he had been released from active duty:

* 26 June 2006 to 25 June 2007, 46 IDT and 15 MEM for a total of 61 points
* 26 June 2007 to 25 June 2008, 39 IDT and 15 MEM for a total of 54 points
* 26 June 2008 to 25 June 2009, 0 IDT and 15 MEM for a total of 15 points

7.  On 25 June 2009, he was honorably separated from the ARNG in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-36n by reason of expiration of active status commitment in the Selected Reserve.  He completed 6 years of net ARNG service.  He was further transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.

8.  On 12 October, 25 October, and 1 November 2010, he was notified of the need to complete his Periodic Health Assessment (PHA), a preventive screening tool designed to improve reporting and tracking of individual readiness; however, he did not respond.

9.  His service medical records are not available for review with this case.  He submitted three medical documents -- an AF Form 3899, a request for Permanent Profile and MMRB memorandum, and a Radiological Examination Report.  These documents show: 

	a.  No permanent injuries from the IED.  He had bleeding from a kidney and his liver that did not require surgical intervention.  He was released from the hospital on 2 September 2005 after a period of observation to go on convalescent leave with planned follow-up and physical therapy (due to bruising). He was to have a CT scan in 2 months.  Nephrology follow-up for evaluation of his kidney function was recommended.

	b.  He contends he presented the PAARNG with civilian medical records on 17 June 2008 but he did not provide such medical records with his application to this Board.  It appears the battalion XO sent the information forward and requested a physical profile and an MMRB.  However, at this stage a determination of meeting or not meeting retention standards had not been established.

10.  There is nothing in the available records that show he was:

* issued a permanent physical profile that prevented him from performing the duties required of his rank/grade and military specialty
* diagnosed with an illness or an injury that warranted his entry into the Army physical disability evaluation system (PDES)

11.  National Guard Regulation 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
8-36n provides for the separation of an ARNG Soldier who has completed his or her commitment in the Selected reserve.

12.  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 line of duty criteria to be eligible to receive retirement or severance pay benefits.  One of the criteria is to have a disability and 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.

13.  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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant was mobilized on 19 January 2005.  He served in Kuwait/Iraq from 12 June 2005 to 25 August 2005.  On 24 August 2005, he sustained a pulmonary contusion, liver laceration, right kidney laceration, and a right lower lung collapse due to an IED explosion.

2.  His service medical records are not available for review.  However, it appears he was transferred to Walter Reed Army Medical Center for treatment.  Following treatment, he was honorably released from active duty on 22 January 2006 to the control of his state by reason of completion of his required service.

3.  Although he provides a DA Form 2173 that shows he sustained IED injuries, nothing in the available records show he incurred an injury or an illness that rendered him unable to perform the duties required of his grade and/or MOS.  On the contrary, the available evidence shows that after his release from active duty, he continued to successfully drill and participate in unit training for at least
2 years.

4.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions or an acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition

5.  The applicant does not state what medical condition rendered him disabled.  Likewise, he does not provide the medical evidence that corroborates a diagnosis of a disabling condition, a determination that such condition failed retention standards, 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 confirms the existence of a condition that warranted his entry into the physical disability evaluation system.  He did not respond to the 2010 notifications to complete his PHA.

6.  An award of the Purple Heart for injuries received as a result of enemy action recognized the fact that the applicant was wounded as a result of enemy action.  However, it does not establish his disability or entitlement to a medical discharge or retirement.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

7.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130002613



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ABCMR Record of Proceedings (cont)                                         AR20130002613



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