IN THE CASE OF:	   

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130007310 


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:

* reinstatement in the Puerto Rico Army National Guard (PRARNG) to undergo a medical evaluation board (MEB)/physical evaluation board (PEB) 
* correction of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to show he was discharged or retired by reason of a disability vice honorably discharged 

2.  The applicant states he was wrongly discharged from the PRARNG under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26j(1) for being medically unfit for retention.  This did not allow him due process for a final disposition of his case through an MEB/PEB in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and Department of Defense Instruction (DODI) 1332.18 (Separation or Retirement for Physical Disability).  The PRARNG commands that were involved either decidedly or unknowingly acted in an unjustified manner preventing an MEB/PEB referral and/or processing through the physical disability evaluation system (PDES).

3.  The applicant provides:

* his NGB Form 22
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* three memoranda
* DA Form 3349 (Physical Profile)
* orders
* twenty-one pages of various medical records, dated between 18 August 2000 and 25 February 2002
* ARNG Retirement Points History Statement

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.  Having had prior active and Reserve service, the applicant enlisted in the PRARNG on 29 January 1996 and he held military occupational specialty (MOS) 12B (Combat Engineer).  He attained the rank/grade of specialist four (SP4)/E-4 on 1 October 1999.  He was assigned to the 130th Engineer Battalion, Carolina, PR.  

3.  He was serving as a member of his ARNG unit on active duty for training (ADT) under Title 32, U.S. Code (USC) at Camp Beauregard, LA, from 12 to 26 August 2000.  He provides a DA Form 2173, dated 24 August 2000, wherein it shows he was treated on 18 August 2000 at the Troop Medical Clinic (TMC), Camp Beauregard, LA, for an injury that was incurred on that date.  This form shows he suffered back pain while lifting heavy objects when he was on kitchen patrol (KP).  This form also stated he had no prior history of back pain.  

4.  He provides medical records, dated between 18 August 2000 and 25 February 2002, wherein they show he was treated as follows:

	a.  On 18 August 2000, at the TMC, Camp Beauregard, LA, for lower back pain that occurred while lifting heavy objects when he was on KP.  The examining physician prescribed medication and he was advised to return to sick call if the pain persisted.

	b.  On 19 August 2000, at the TMC, Camp Beauregard, LA, for a follow-up for his back pain.  The examining physician noted the applicant stated he did not feel any better and had requested an x-ray.

	c.  On 21 August 2000, at the TMC, Camp Beauregard, LA.  The examining physician stated the applicant could not touch his feet with his hands, his range of motion (ROM) was 45 degrees, and there was tenderness on palpation around the right sacroiliac joints.  He continued the applicant on medication with restricted duty.

	d.  On 21 August 2000, at the TMC, Camp Beauregard, LA.  The examining physician stated the applicant's x-rays were negative and he could not rule out the L-5 disc.  He continued the applicant on medication with rest and no duty and requested a magnetic resonance imaging (MRI) to rule out a herniated disc.

	e.  A radiology report, dated 24 August 2000, shows the applicant underwent an MRI of the lumbar spine for low back pain and occasional right leg pain.  The radiologist stated the alignment of the spine was normal and the disc space heights unremarkable.  There was disc space desiccation at L5-S1 consistent with the applicant's age, no marrow changes were seen, and the conus medullaris was unremarkable in appearance.  The axial images showed a very mild broad-based central disc bulging at L5-S1 which did not compress the sac or nerve roots and did not appear to be causing any neural compression.

	f.  On 31 August 2000, at the Rodriquez Army Health Clinic (RAHC), Fort Buchanan, PR for a follow-up to his back injury.  The examining physician noted his MRI showed he had very slight bulging at the L5-S1 disc and stated the applicant should do no physical training (PT) for 30 days and return in 3 weeks.  

	g.  On 13 September 2000 and 5 October 2000, at the RAHC, Fort Buchanan, PR for a follow-up to his back injury.  He was diagnosed with a lumbar sacral strain and referred to physical therapy for an evaluation.

	h.  Between 26 January 2001 and 25 February 2002, at the RAHC, Fort Buchanan, PR and a Physical Therapy Clinic, location not shown, for a follow-up to his back injury and his complaints of low back pain radiating down to his leg that increased with physical activity.  He was prescribed medication and given several temporary profiles exempting him from PT.

5.  He also provides a DA Form 3349, dated 20 April 2002, wherein it shows he was given a permanent (P) 4 profile for the lower extremities on that date.  Block 3 (Assignment Limitations Are as Follows) of this form stated the applicant was granted 60 percent Department of Veterans Affairs (VA) disability and block 9 (Other) stated "Refer to MEB/PEB."  This form was not signed by his immediate commander.

6.  The applicant provides a memorandum, dated 24 April 2002, issued by Headquarters (HQ) State Area Command, PRARNG, San Juan, PR, wherein it stated a Medical Duty Review Board (MDRB) convened on 20 April 2002 at Camp Santiago, PR.  The MDRB found the applicant was unfit for retention in the PRARNG as he had severe degenerative disc disease (DDD) L5-S1, he was not able to comply with his MOS duties, had 6 years, 10 months, and 3 days of service, and had been given a P-4 profile with the assignment limitations of unfit for service.  The MDRB recommended a referral to an MEB.

7.  A review of the interactive Personnel Electronic Records Management System (iPERMS) shows the applicant's records only contain one document pertaining to the applicant.  It is Orders 11-79, dated 14 February 2003, issued by HQ, 101st Troop Command, San Juan, PR, transferring him from the 130th Engineer Battalion, to the 783rd Maintenance Company, PRARNG, Toa Baja, PR, effective 11 February 2003, for assignment in MOS 52D (Power Generator Equipment Repairer).  His expiration of term of service (ETS) was shown in iPERMS as 28 February 2003.

8.  The applicant provides Orders 84-7, dated 15 April 2003, issued by HQ State Area Command, PRARNG, San Juan, PR, honorably discharging him from the ARNG effective 28 February 2003.  The authority for the discharge was NGR 600-200, paragraph 8-26j(1) (Medically Unfit for Retention).

9.  The NGB Form 22 he was issued for this period of service shows he was honorably discharged on 28 February 2003 by reason of being medically unfit for retention.  He completed 7 years and 1 month of Reserve service during this period of service.  This form shows he was not available to sign the form and it was mailed to him by certified mail at his last known address.

10.  The applicant provides an ARNG Retirement Points History Statement, dated 24 October 2012, wherein it shows he had 6 years, 10 months, and 3 days of creditable service for retired pay.

11.  The applicant also provides a memorandum, dated 10 February 2013, from the PRARNG Joint Forces HQ, San Juan, PR, wherein the Chief, Health Services Support Branch stated:

	a.  After reviewing and researching the applicant's request for correction of his erroneous separation from the PRARNG, he agreed with the applicant and
recommended approval of his request.  The evidence clearly showed the applicant received complex medical treatment as a result of injuries incurred in the line of duty (LOD) while on ADT and entitled to basic pay.  His command failed to refer him to the PDES under the provisions of Army Regulation 635-40 and DODI 1332.18.

	b.  There was no evidence that showed the applicant was properly counseled as to his rights to referral to an MEB/PEB for the purpose of disability benefits.  It was the commander's responsibility to ensure proper counseling was issued concerning his rights after he received the recommendation shown on the DA Form 3349 the applicant provided.

	c.  It was the opinion of that office that the applicant's records should be corrected by directing the Office of the Surgeon General (OTSG) to contact the applicant and arrange a physical evaluation; if appropriate refer to an MEB/PEB; and if a formal PEB becomes necessary issue the applicant  invitation travel orders.

	d.  If it is determined he should have been separated under the PDES, these proceedings should 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 entitlement to all back pay and allowances.  This would be in the best interest of the government and to the applicant.

12.  On 5 August 2013, an advisory opinion was received from the NGB, Chief, Personnel Policy Division.  The advisory official recommended approval of the applicant's request and, in part, stated:

	a.  According to the applicant and the PRARNG, the applicant was erroneously discharged without the opportunity to be entered into the PDES.  The PRARNG agreed he was prematurely discharged because of injuries sustained.  The applicant received medical treatment as a result of injuries found in the LOD during ADT from 12 to 26 August 2000.  His profile, dated 20 April 2002, stated he was referred to an MEB.  Per the MDRB memorandum, dated 24 April 2002, the applicant was given a P-4 profile, found unfit for retention, and was subsequently honorably discharged effective 28 February 2003.

	b.  According to the NGB Chief Surgeon General (CGS), prior to his discharge, the applicant should have been counseled on the potential for PDES processing versus continuing his discharge proceedings.  He would have received the information regarding the pros and cons to both courses of action and would have been able to make an informed decision.  However, he was discharged without this opportunity and the PRARNG Health Services Office stated the unit failed to coordinate with the applicant to place him into the PDES to determine if permanent/temporary physical disability was merited.

	c.  It is recommended the applicant be voluntarily reinstated into the PRARNG 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.  In the event he requires an MEB or PEB, he should be afforded all benefits normally afforded individuals on active duty who are undergoing an MEB and/or PEB.  

	d.  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 issue him the appropriate separation retroactive to his original separation date with entitlement to all pay and allowances, less any entitlements already received.

13.  On 6 August 2013, the applicant was provided with the advisory opinion for his information and/or rebuttal; however, he did not respond.  

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  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 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.

15.  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), in effect at the time, stated 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(Standards of Medical Fitness).

16.  Army Regulation 40-501, chapter 10, sets basic policies, standards, and procedures for medical examinations and physical standards for the ARNG.  For the ARNG, chapter 3 is interpreted as the standard for retention.  Soldiers not meeting the standards of chapter 3 are considered to not meet retention standards and will require review by the State Surgeon and referral to the MDRB, in accordance with this regulation, in order to be retained in the Army National Guard of the United States (ARNGUS).

17.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNGUS and the USAR.  It applies to all enlisted Soldiers of the ARNGUS and the USAR who are not performing fulltime active duty in the U.S. Army.  The policy for the discharge of Soldiers medically unfit for retention, in effect at the time, stated, in part, discharge would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness under the provisions of Army Regulation 40-501.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be reinstated in the PRARNG to undergo an MEB/PEB and his NGB Form 22 should be corrected to show he was discharged or retired by reason of a disability vice honorably discharged 

2.  The evidence of record confirms that while the applicant was serving on ADT in August 2000 he was treated for back pain that occurred while lifting a heavy object.  At that time, he had normal x-rays and a normal MRI and the examining physician stated there was no evidence of any nerve impingement (emphasis added).  He was diagnosed with a lumbar strain, prescribed medication, and referred for physical therapy.  

3.  On 22 April 2002, the PRARNG MDRB determined he was medically unfit for retention due to DDD.  The MDRB also recommended referral to an MEB.  There is no evidence that shows an MEB was conducted and he was discharged almost a year later by reason of being medically unfit for retention.

4.  Notwithstanding the advisory opinion of the NGB that the applicant should be granted relief because his records are void of evidence that shows he was counseled on the potential for PDES processing, the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The absence of documents from almost 12 years prior does not constitute an error on the part of the PRARNG.  As his P-4 profile and MDRB results recommended referral to an MEB, it is most likely he was least made aware of the PDES process.

5.  In addition, one of the criteria for processing through the PDES 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.  The applicant's MDRB determined he was unfit for retention due to DDD.  DDD is a disease of aging and generally occurs over the course of an expanded length of time/many years.  The evidence of record is void of any evidence that confirms his DDD was related to back pain he incurred on a single day lifting a heavy object while serving on ADT.  Therefore, he would have not met the criteria for processing through the PDES.  

6.  In the absence of evidence to the contrary, it is presumed that what his unit did in his case was correct and he was properly discharged on 28 February 2003 for being medically unfit for retention.

7.  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

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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)                                         AR20130007310





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ABCMR Record of Proceedings (cont)                                         AR20130007310



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