IN THE CASE OF:	  

		BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130003586 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, referral through the Physical Disability Evaluation System (PDES) to a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB).

2.  The applicant states:

* he was injured while entitled to basic pay
* his DA Form 3349 (Physical Profile), dated February 2003, shows he was referred to an MEB; but, his MEB was never completed
* there is no evidence showing he was properly counseled about his right to an MEB/PEB 
* he was issued an administrative honorable discharge instead of being referred through the PDES
* it was the responsibility of his commander and the Puerto Rico Army National Guard (PRARNG) leadership to ensure he was evaluated through the PDES
* an MEB/PEB would have determined if his injury warranted retirement for permanent/temporary physical disability

3.  The applicant provided:

* Standard Form (SF) 93 (Report of Medical History), dated 16 August 1998
* SF 88 (Report of Medical Examination), dated 16 August 1998
* SF 545 (Laboratory Report Display), dated 16 August 1998
* Electrocardiogram, dated 16 August 1998
* Glucose and cholesterol tests, dated 17 August 1998
* DA Form 4970-E (Medical Screening Summary - Cardiovascular Risk Screening Program), dated 24 August 1998
* SF 600 (Chronological Record of Medical Care), dated 4 December 1999, 11 August 2001, 13 August 2001, 17 August 2001, and 23 November 2002
* DA Form 2173 (Statement to Medical Examination and Duty Status), dated 11 August 2001
* Reserve component medical cover sheet, undated
* two DA Forms 2823 (Sworn Statement), dated 11 August 2001
* SF 558 (Medical Record - Emergency Care and Treatment), dated
11 August 2001
* Disability counseling statement, dated 11 August 2001
* Exercise "Hunters Quest" Line of Duty (LOD) investigation checklist, undated
* Memorandum, dated 12 August 2001
* Memorandum, final LOD investigation, 12 August 2001
* DD Form 689 (Individual Sick Slip), dated 13 August 2001
* Annual Medical Certificate, dated 18 October 2001, 19 November 2002, and 9 February 2003
* Memorandum, dated 22 February 2002
* Civilian medical record, dated 18 November 2002
* Immunization contraindication checklist, dated 19 November 2002
* DA Form 3349, dated 23 November 2002 and 9 February 2003
* Memoranda from the Medical Duty Review Board (MDRB), dated 
27 November 2002 and 3 March 2003
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 4 March 2003
* Orders Number 191-29, dated 16 September 2003
* ARNG retirement points history statement, dated 20 May 2004
* Memorandum, dated 14 February 2013

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 complete service records are not available for review in this case.  However, the records he provided show that after having had previous enlisted service he enlisted in the PRARNG 14 October 1998 and held military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained while serving in the PRARNG was specialist (SPC)/E-4.

3.  He received a physical examination in connection with his enlistment in the PRARNG.  These medical records included an SF 93, an SF 88, an SF 545, and an Electrocardiogram, dated 16 August 1998, glucose and cholesterol tests, dated 17 August 1998, and a DA Form 4970-E, dated 24 August 1998.  These documents all show he was in good health without any medical conditions or injuries.

4.  He provided a DA Form 2173 (Statement to Medical Examination and Duty Status), dated 11 August 2001 which shows, on 7 August 2001, he sustained a back injury while training.  He was evaluated in the emergency room and diagnosed with a back strain.  He was treated with muscle relaxer and Motrin.  At the time he was a member of the NYARNG participating in exercise Hunter's Quest at Fort Polk, LA.

* he was on active duty training (ADT) from 30 July 2001 to 16 August 2001 at Fort Polk, LA 
* he injured his back at Fort Polk, LA on 7 August 2001
* the examining medical official indicated he was not under the influence of alcohol or drugs, was mentally sound, and the injury was incurred in the LOD
* the injury occurred while he was carrying another Soldier into the back of a truck and felt a sharp pain in his lower back.  

5.  He provided an SF 558 and an SF 600, dated 11 August 2011, showing he was diagnosed with and treated for an acute lower back sprain.

6.  He provided a disability counseling statement, dated 11 August 2001 which shows he was counseled about his rights and responsibilities concerning eligibility for continuance of pay and allowances (incapacitation pay) while disabled form an injury/aggravation illness/disease incurred in LOD.


7.  He provided an LOD determination, dated 12 August 2001 which shows he received an approved in LOD determination for an "acute low back sprain" from the NYARNG.

8.  He provided an SF 600 and a DD Form 689, dated 13 August 2001, showing he was seen in a clinic.  The clinical assessment was "lower back injury, improving."  He was returned to duty with a "no heavy lifting" sick slip.

9.  He provided an annual medical certificate, dated 18 October 2001, showing he answered "No" to "do you currently have any medical/dental problems," "No" to "Have you had any medical or dental problems since your last periodic…," and "No" to " current medications."  He answered "No" to every screening question.

10.  On 18 October 2001, he completed an Annual Medical Statement.  He answered "No" to "do you currently have any medical/dental problems," "No" to "Have you had any medical or dental problems since your last periodic…," and "No" to " current medications."  He answered "No" to every screening question.  The medical screener checked the box "fully fit" but noted "physical due before departure."  It is possible that, subsequent to 11 September 2001, the applicant's New York unit was being considered for activation.

11.  On 19 November 2002, he completed an Annual Medical Assessment and answered "Yes" to every question (see, item d. above).  He also indicated that he received a 20% (percent) VA rating for lumbar paravertebral myositis (sore back muscle).  He also reported degenerative changes in his lumbar spine but does not report any VA rating for this chronic disease of aging that most assuredly was not service connected.  He provided a letter from his chiropractor stating that he had left sciatica and reported that he was being treated with bed rest.  The VA rating was not provided for review in this case.

12.  On 23 November 2002, an MDRB concluded that he had (1) acute sciatic neuritis and (2) chronic degenerative disc disease.  The MDRB further concluded that he was "fully fit with limitations," nondeployable, and issued him a temporary level 3 (T3) profile.  The evaluating officer (and board member), a Medical Corps LTC, noted that he had the above-stated conditions.  Speaking specifically about diagnosis number 2 (degenerative disc disease), the evaluating officer noted that the applicant's "first back lesion" had occurred 10-12 years prior to his evaluation and questioned whether or not this was an LOD condition.

13.  He provided an annual medical certificate dated 9 February 2003 showing he answered every question "No" except the one about hospitalization since his last exam.  He attributed all his "Yes" answers to "lumbar conditions-disc."  The reviewing officer recommended "non deploy" and "separate."  A handwritten profile was generated assigning a permanent L4 profile for "Chronic degenerative disc disease" and "sciatic neuritis left side."  The profile further recommended a referral to an MEB.

14.  On 3 March 2003, the MDRB of the PRARNG met and concluded that the applicant was unfit for retention.  The board specifically addressed whether or not he qualified for a 15-year retirement under Temporary Early Retirement Authority (TERA) and concluded that he did not qualify.  TERA is only for nonduty related conditions.  The board would not have discussed TERA if the applicant's conditions were considered to be in LOD.  In spite of the provisional, handwritten profile recommending an MEB, the evidence shows that the board determined that the applicant's disqualifying condition was not in LOD.  The final recommendation did not include a referral for an MEB and the record supports a conclusion that this was not an oversight.

15.  His NGB 22 shows he was honorably discharged from the PRARNG on 
4 March 2003 in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), by reason of being medically unfit for retention.  He had completed 17 years, 3 months, and 16 days of total service for pay.

16.  He provided a memorandum issued by the PRARNG, Office of the Adjutant General, through the Chief Health Services Support Branch, on 14 February 2013.  The letter was issued in response to his request for correction of his erroneous separation from the PRARNG.  The responding official stated:

	a.  After reviewing and conducting detailed research of the applicant's case, this office agreed and recommended approval of his request.  The evidence clearly shows that he received complex medical treatment as result of injuries incurred "In the LOD" while entitled to basic pay (Title 32 Active Duty Annual Training) in support of Joint Readiness Training Center exercise "Hunter's Quest," conducted at Fort Polk, LA, from 30 July 2001 to 16 August 2001.  Although there is evidence showing the applicant was referred to an MEB as documented on a DA Form 3349 dated 9 February 2003 such action was never completed.  Instead, he was wrongfully issued an administrative honorable discharge.

	b.  There is no evidence that shows the applicant was properly counseled, as to his rights to a referral to an MEB/PEB, for the purpose of disability benefits determination as a result of the injuries clearly incurred while entitled to basic pay.  It was the commander’s and PRARNG leadership's responsibility to ensure the applicant was evaluated through the PDES in order to determine if retirement for permanent/temporary physical disability was merited.
	c.  It is the opinion of this office that the applicant's request should be approved and adjudicated by proper authority level (ABCMR) in the interest of justice.  Unfortunately, since the applicant is no longer a member of the PRARNG, this command does not have the authority to order reinstatement, or to change his retirement status to disability retirement.

	d.  PRARNG recommends that the applicant's PRARNG and Department of the Army records be corrected by:

		(1)  directing the Office of The Surgeon General (OTSG) to contact the applicant and arrange, via appropriate medical facilities, a physical evaluation; 

		(2)  if appropriate, by referral to a MEB and PEB, and

		(3)  that OTSG is directed to use appropriate invitational travel orders to accomplish the MEB/PEB if necessary, and

		(4)  in the event the formal PEB becomes necessary, the individual is issued invitational travel orders to prepare for and participate in consideration of his case by formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB, and 

		(5)  should a determination be made that the applicant should have been separated under the PDES that the ABCMR proceedings serve as the authority to void his administrative discharge and to issue him the appropriate disability separation retroactive to his original ARNG separation date with entitlements to all back pay and allowances, less any entitlements already received.

	e.  This office is in the best position to ensure that all those actions not completed at the time of  his discharge, are completed, and upon final determination is made by the proper adjudicating authority.  This is in the best interest of the Government and most importantly the Soldier.

17.  On 3 May 2013, an advisory opinion was received from the NGB, Deputy Chief, Personnel Policy Division.  The advisory official recommended approval of the applicant's request and stated:

	a.  According to the applicant and the PRARNG the applicant was erroneously discharged without having the opportunity to be entered into the PDES.


	b.  The PRARNG agrees with the applicant and states that he was prematurely discharged as a result of his injuries.  The applicant received medical treatment as a result of injuries found in the LOD during AT from 30 July 2001 through 16 August 2001.  As stated on the applicant's DA Form 3349, dated 9 February 2003, he was referred to an MEB.  Per the MDRB dated 
3 March 2003 from Headquarters State Area Command in the PRARNG, the applicant was given a permanent "L-4" profile.  He was found unfit for retention in accordance with Army Regulation 40-501, paragraph 3-39h and honorably discharged effective 4 March 2003.

	c.  According to the NGB Chief Surgeon Division, the proper procedure would have been to counsel the applicant prior to his administrative discharge on the potential for PDES processing per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-4, versus continuing his discharge proceedings.  Based on the counseling the applicant would have received the information regarding potential pros and cons to both courses of action and would have been able to have made an informed decision.  According to the PRARNG the applicant was discharged without being given this opportunity.  PRARNG Health Services stated that the unit failed to make coordination with the applicant to place him into PDES to determine if permanent/temporary physical disability was merited.

	d.  It is recommended that the applicant be voluntarily reinstated into the PRARNG and that his initial discharge orders from 4 March 2003 be revoked.  The applicant should be reinstated for purposes of the PDES process only.  The OTSG, should contact the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant. In the event the applicant requires a MEB or PEB, the applicant will be afforded all of the benefits normally afforded to individuals on active duty who are undergoing an MEB and/or PEB.  Should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his administrative discharge and to issue him the appropriate separation retroactive to his original separation date with entitlement to any pay and allowances, less any entitlements already received.  The NGB Chief Surgeon General Division and the PRARNG agree with this recommendation.

18.  The applicant did not respond to the advisory opinion.




19.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.  

	a.  Chapter 3 provides guidance on the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for service.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of their duties; may compromise or aggravate the Soldier’s health or well-being if the Soldier were to remain in the military Service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the Government if the individual Soldier were to remain in the military Service.  

	b.  Chapter 10 provides guidance on the basic policies, standards, and procedures for medical examinations and physical standards for ARNG Soldiers. Paragraph 10-25 relates to ARNG Soldiers pending separation for failing to meet medical retention standards.  Sub-paragraph 10-25b states that Soldiers pending separation for In the Line of Duty (ILOD) injuries or illnesses will be processed in accordance with Army Regulation 40–400 (Patient Administration) and Army Regulation 635-40.

20.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  Paragraph 3-4 provides that under the laws governing the Army 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; and (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.  Paragraph 8-2 states that Soldiers of the Reserve Components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

	c.  Paragraph 8-6 states that when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation.  The Medical Treatment Facility (MTF) commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.    If the Soldier is not eligible for referral to a PEB, the MTF will notify the Soldier’s unit commander for disposition under applicable regulations.

	d.  Paragraph 8-9 states that a Soldier not on extended active duty, who is unfit because of physical disability:

		(1)  May be permanently retired or have his or her name placed on the TDRL, if he or she has at least 20 years of service, their disability is rated at 30 percent or more, and his or her disability occurred in the line of duty, and is the proximate result of performing active duty or IDT.

		(2)  May be separated with severance pay if his or her disability is rated at less than 30 percent, he or she has less than 20 years of service, and their disability occurred in the line of duty, and is the proximate result of performing active duty or IDT.

		(3)  May forfeit severance pay; be transferred to the Retired Reserve; and receive under the provisions of Title 10, U.S. Code, Section 12731, (10 USC 12731) non-disability retired pay at age 60, if at least 20 qualifying years of service for retirement have been completed and transfer to the retired Reserve is requested.  According to the provisions of 10 USC 1209 and 1213 all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve.  Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay.

		(4)  Will be separated without benefits if the unfitting condition results from injury which is due to intentional misconduct or willful neglect, the disability was incurred during a period of unauthorized absence, and/or the disability was not incurred or aggravated as the proximate result of performing duty as specified in paragraph 8–2.



21.  NGR 600-200 paragraph 8-26, governs the discharge from the State Army National Guard and/or as a Reserve of the Army.  Subparagraph 8-26j(1) states Soldiers are discharged from the State ARNG or from the Reserve of the Army when a Soldier is determined to be medically unfit for retention per Army Regulation 40-501, chapter 3.  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 and NGR 40-501.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant strained his back while lifting in 2001.  He was treated, noted to improve, and 2 months later denied that he had any current medical problems.  The next year he was apparently being evaluated for deployment and provided a chiropractor's note indicating he was being treated for acute sciatic neuritis.  He also had the chronic problem of degenerative disc disease.  He was eventually evaluated by an MDRB and did not meet retention standards.  Retirement for a non duty related condition under TERA was contemplated but found to be inappropriate.

2.  Notwithstanding the NGB's opinion that the applicant should have had an MEB because he had an LOD, the record shows that the muscle strain for which the applicant received an LOD in 2001 subsequently healed as sprains and strains are known to do.  The conditions for which the applicant was disqualified included an acute (new) neuritis and a chronic disease of aging, degenerative disc disease.  Neither of these conditions can be medically linked to a muscle strain 2 years prior.  Although it was indicated on his profile that he should be referred to an MEB, a medical review board one month later obviously considered his conditions to be unrelated to his back strain and did not refer him for an MEB.

3.  Therefore, based on the foregoing evidence, there is insufficient evidence to grant 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)                                         AR20130003586





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ABCMR Record of Proceedings (cont)                                         AR20130003586



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