IN THE CASE OF:	  

		BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130005019 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 12 March 2008 to show he was honorably released from active duty (REFRAD) due to physical disability.

2.  The applicant states he was injured while on active duty which resulted in his subsequent separation from the California Army National Guard (CAARNG) and as a Reserve of the U.S. Army.  He further states he has been going to school but is receiving only 50 percent of his benefits because his REFRAD was not based on his medical condition.

3.  He adds that he is a disabled veteran who served in Operation Iraqi Freedom.  He is continually struggling to pay his bills.  He wants to receive his full educational benefits but cannot because his DD Form 214 shows his separation was honorable instead of for medical reasons.  He requested this correction through The Adjutant General, CAARNG, but was told that the CAARNG could not change the DD Form 214 and that he had to come to this Board.

4.  The applicant states that the Department of Veterans Affairs (VA) informed him that he could be covered at 100 percent due to service-connected disability, but his DD Form 214 had to show he was discharged for medical reasons.  He is asking for this change because of the steep financial costs of attending school.  He was a diesel technician before entering the military.  Because of his injuries he is no longer able to perform such a physically demanding job.  Learning new skills is the best option for him and his family.  He was an excellent Soldier and is also an excellent student.  He just needs his benefits to be able to continue.
5.  The applicant provides copies of:

* Report, Magnetic Resonance Imaging (MRI), California Diagnostic Imaging, dated 18 January 2007
* Prognosis and Treatment Plan, California Diagnostic Imaging, dated       26 January 2007
* Military and VA Medical Records (27 pages), dated between 2 April 2006 and 1 March 2008
* A DD Form 2796 (Post-Deployment Health Assessment), dated              10 February 2008
* A DD Form 214 ending on 12 March 2008
* A consultation report, Health Care Partners Medical Group, dated 11 July 2008
* Radiology Reports, VA, dated 2 April and 25 September 2009 (17 pages)
* A memorandum for the applicant, Medical Determination, from CAARNG, dated 3 June 2009, with DA Form 3349 (Physical Profile) enclosed
* National Guard Bureau (NGB) Form 22E (Report of Separation and Record of Service) effective   24 July 2009, with enclosures
* A Letter from CAARNG to the applicant, dated 15 January 2013, with enclosures

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.  A DA Form 2807-1 (Report of Medical History), dated 26 April 2006, shows that the applicant stated he had been examined in an emergency room 4 years earlier for lower back strain due to pulling a muscle.

3.  On 27 April 2006, the applicant enlisted in the CAARNG and as a Reserve of the Army.  On 29 August 2006, he began his initial active duty training (IADT) at Fort Benning, Georgia.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 
11 December 2006, reports that on 19 November 2006, the applicant was examined for a pain in his left knee that resulted from an accident that occurred in the line of duty on an unreported date while in basic combat training at Fort Benning, Georgia.

5.  On or about 13 December 2006, the applicant completed his initial entry training and returned to his CAARNG unit.  He was awarded military occupational specialty 11B (Infantryman).

6.  On 6 June 2007, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  He served in Iraq from 4 September 2007 to 
28 February 2008.

7.  On 12 March 2008, the applicant was REFRAD and transferred back to his CAARNG unit.  His DD Form 214 indicates that he had completed his required active service and received an honorable characterization of service.  He had completed 9 months and 7 days of creditable active duty service during this period.

8.  A DA Form 3349 (Physical Profile) approved on 25 April 2009, reports that he was given a permanent physical profile for migraines, post-traumatic stress disorder (PTSD), "DDD LS-spine," spondylolithesis, meniscal tear left, with a rating of 4 for lower extremities and 4 for psychiatric.

9.  In a memorandum, dated 3 June 2009, the CAARNG, G1 (Personnel Officer), informed the applicant that the CAARNG State Surgeon's Office had reviewed his medical documents and determined that he did not meet medical retention standards for continued participation in the CAARNG.  He was also informed about entitlement to a fitness for duty evaluation by a physical evaluation board if he believed he could perform his duties despite his medical condition(s).  If he chose to have a fitness for duty evaluation, the separation action would be suspended pending the outcome of and response to a Non-Duty Related PEB.  He was to be separated on 24 July 2009.  He was given until 21 July 2009 to provide his response.

10.  An NGB Form 22E, effective 24 July 2009, reports that the applicant was separated from the CAARNG and as a Reserve of the Army due to medical unfitness for retention standards.



11.  Army Regulation 40-501 (Standards of Medical Fitness) provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation):

	a.  This regulation provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

	b.  It also provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

   c.  It further states that under the laws governing the Army physical disability evaluation system (PDES), Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 ending on 12 March 2008 should be changed to show he was REFRAD due to physical disability.

2.  The evidence of record clearly shows that the applicant was REFRAD as a result of completing his required active duty service.  His separation was not due to a physical disability that made him unfit for further duty.

3.  Because the applicant's physical condition was not medically unfitting for retention at the time of his REFRAD there was no basis for medical retirement or separation from active duty.
4.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated from active duty.

5.  The applicant's desire to obtain VA education benefits is not a valid justification upon which to base a change in the reason for his REFRAD.

6.  However, the available evidence shows that in April 2009 the applicant was given a permanent physical profile for migraines, PTSD, "DDD LS-spine," spondylolithesis, and meniscal tear left, with a rating of 4 for both his lower extremities and for psychiatric conditions.

7.  On 3 June 2009, the CAARNG, Personnel Officer informed the applicant about entitlement to a fitness for duty evaluation by a PEB if he believed he could perform his duties despite his medical condition(s).  If he chose to have a fitness for duty evaluation, the separation action would be suspended pending the outcome of and response to a Non-Duty Related PEB.  He was to be separated on 24 July 2009.  He was given a suspense of 21 July 2009 to provide his response.  There is no evidence indicating what, if any response was provided.

8.  The applicant's subsequent discharge from the CAARNG and as a Reserve of the Army in 2009 due to not meeting medical retention standards does not show he was unfit at the time of his earlier REFRAD in 2008.

9.  In view of the above, the applicant's request should be denied.  

10.  Nevertheless, based on his CAARNG PTSD determination in April 2009 it appears he should have been sent to the PDES by the CAARNG rather than being separated due to a Non-Duty Related condition.  Therefore, it would be appropriate for the Office of The Surgeon General to now consider sending him to a PEB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___ x____  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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: 

a. directing the Office of The Surgeon General to contact him and arrange, via appropriate medical facilities, an MEBD; and
   
   b.  if appropriate, by referral to an informal PEB.
   
2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the MEB and, if necessary, the PEB.

3.  In the event that 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.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  In the event a PEB finds that the individual concerned has a medically unfitting condition and it is compensable, action will be taken to correct his records to show he was appropriately separated effective 24 July 2009.

5.  The Board further determined that 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 changing the reason for his release from active duty in 2008 or in granting him a physical disability separation until such time as a determination is made by the MEB/PEB.



      ___________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)                                         AR20130005019





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ABCMR Record of Proceedings (cont)                                         AR20130005019



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