IN THE CASE OF:	

		BOARD DATE:	    4 February 2014

		DOCKET NUMBER:  AR20130007935 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his narrative reason for separation as "physical disability (retirement)."  

2.  The applicant states, in effect, he was not given the opportunity to be processed through the Physical Disability Evaluation System (PDES) for the purpose of establishing the proper basis for his separation.

	a.  There was no medical military occupational specialty (MOS) retention board (MMRB) initiated to determine whether he should be retained, reclassified, or referred to a medical evaluation board (MEB)/physical evaluation board (PEB) for processing.  He was not assigned a PEB liaison officer (PEBLO) nor did he have the opportunity to consult with Judge Advocate General (JAG) counsel.  He was not given a physical profile (DA Form 3349 (Physical Profile)) indicating he was still on recuperation leave following back surgery (L5-S1 fusion) nor was a fitness for duty examination done.

	b.  He states the Army surgeon did not apply the pertinent regulations and guidance regarding completion of a narrative summary and profile.  His commander never initiated a line of duty investigation for his back injury.  He still had low back pain and a loss of range of motion due to the fusion surgery after his last encounter with the physical therapist at Fort Hood, Texas.  He was told that he had to pass an Army physical fitness test (APFT) to reenlist or he would be separated at his expiration term of service.  He feels an injustice occurred since he was unable to perform his duties and Army policy and procedures were not adhered to in his case.

	c.  His back condition (back pain for which he was taking prescribed narcotic medication and suffered a loss of range of motion) at the time of his separation was serious enough to prevent him from performing his duties.  Therefore, although his chain of command didn't want to address the fact he was unable to perform his duties, he feels his back condition should have warranted him a rating of at least 30 percent disabling at the time of his separation.  He also states the reason his condition was rated at zero percent disabling by the Department of Veterans Affairs was due to his not appearing for his compensation and pension examination.  He states the reason he didn't go to the examination was because his life was in turmoil, which was caused by the Army treating him shabbily.

	d.  He further states he injured his back when he slipped on a piece of ice under mud (he did not fall).  Following unsuccessful physical therapy he was scheduled for fusion surgery on his back.  Following surgery he was granted only 30 days of convalescent leave (though he requested an additional 30 days) and physical therapy.  He states he wanted to reenlist to have sufficient time to get proper medical care and to plan for the future.  However, he was informed (in spite of his recent back surgery) that unless he passed an APFT he was to be separated in about 1 and 1/2 weeks.  He then consulted with his surgeon's office which resulted in his surgeon recommending he be given a 90-day extension to his expiration term of service.  He was granted only a 2-month extension of service to allow more time for out-processing from the Army and physical therapy appointments.  He still has back pain to this day. 

3.  The applicant provides:

* personal statement
* DD Form 214
* medical documents 

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 17 April 2000, with prior Army National Guard service, the applicant enlisted in the Regular Army.  He was awarded MOS 63B (Light Wheeled Vehicle Mechanic).

3.  On 7 January 2003, he reenlisted for 2 years.

4.  He provides three DA Forms 3349.  These forms show:

	a.  On 18 February 2004, he was given a temporary profile due to his back condition.  The profile numerical designation of "temporary 2" was assigned for physical capacity or stamina with an expiration date of 1 April 2004.  All other functional capacities were assigned a numerical designation of "1."

	b.  On 16 March 2004, he was given a revised temporary physical profile due to chronic low back pain.  The profile numerical designation of "temporary 3" was assigned for lower extremities with an expiration date of 1 April 2004.

	c.  On 29 September 2004, he was given a temporary physical profile due to chronic low back pain.  The profile numerical designation of "temporary 3" was assigned for lower extremities with an expiration date of 29 November 2004.

   d.  On 8 December 2004, he was further given a temporary physical profile  due to back pain with a numerical designation of "temporary 3" assigned for lower extremities with an expiration date in March 2005.  This profile shows he was not to take an APFT.

5.  In March 2005, he had surgery on his spine.

6.  On 22 March 2005, his surgeon recommended the applicant's expiration term of service orders be extended 90 days so the applicant could remain under the doctor's care until his condition had stabilized.

7.  On 25 April 2005, his enlistment was extended for a period of 2 months for the convenience of the government.

8.  On 24 June 2005, he was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, due to completion of his required active service.  His DD Form 214 shows a reentry code of "1" indicating if otherwise qualified he was eligible to reenlist at the time of his discharge.

9.  There is no evidence he was ever recommended for an MEB.

10.  His complete medical record is not available for the Board's review.

11.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness for retention and separation, including retirement.

	a.  Paragraph 3-25 prescribes the policies for the use of trial of duty and profiling for cardiovascular conditions.

   b.  Chapter 7 states the physical profile serial system is based primarily upon the body systems and their relation to military duties.  Four numerical designations are used to reflect different levels of functional capacity.  The numerical designator is not an automatic indicator of "deployability," assignment restrictions, or referral to an MEB.  The conditions listed in chapter 3 and the Soldier’s functional limitations, rather than the numerical designator of the profile, will be the determining factors for MEB processing.

* An individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness
* A physical profile designator of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect that may require some activity limitations
* A profile containing one or more numerical designators of "3" signifies that the individual has one or more medical conditions or physical defects that may require significant limitations
* A profile serial containing one or more numerical designators of "4" indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited

   c.  Paragraph 7-4 of this regulation provides guidance on permanent versus temporary physical profiles and states a profile is considered permanent unless a temporary modifier is annotated, as described under the subparagraph for temporary profiles.  All permanent "3" and "4" profiles, for Soldiers on active duty, will be reviewed by an MEB physician or physician approval authority.  It also provides that a temporary profile is given to Soldiers receiving medical or surgical care or recovering from illness, injury, or surgery.  These Soldiers will be managed with temporary physical profiles if the condition is temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity.  It further provides that Soldiers on active duty with a temporary profile will be medically evaluated at least once every 3 months, at which time the profile may be extended by the profiling officer.  Any extension of a temporary profile must be recorded on a DA Form 3349.  It also states those Soldiers who meet retention standards but have a permanent physical capacity or stamina, upper extremities, lower extremities, hearing and ears, eyes, psychiatric (PUHLES) numerical designator code serial of three or four will be referred to a MMRB in accordance with Army Regulation 600-60 (Physical Performance Evaluation System), unless waived by the MMRB convening authority.

12.  Army Regulation 350-1 (Army Training and Leader Development) prescribes that active Army Soldiers will take the APFT at least twice each calendar year with a minimum of 4 months separating record tests if only two record tests are given.  Soldiers must be given 3 months to prepare for the alternate test from either the date of the profile or the date recommended by health care personnel.  Soldiers who fail a record APFT for the first time or fail to take a record APFT within the required period will be flagged in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags).

13.  Army Regulation 601-280 (Army Retention Program) prescribes criteria for the Army Retention Program and sets forth policies and command responsibilities for immediate reenlistment or extension of enlistment of Soldiers currently serving in the Active Army.  Paragraph 3-8 (Medical and Physical Fitness) states Soldiers must have passed their most recent APFT within the 
9-month period prior to date of reenlistment.  Soldiers with temporary physical profiles, who have passed an APFT within the preceding 9 months to the date of awarding of the profile, are eligible for reenlistment.  Soldiers with temporary physical profiles who are not qualified for reenlistment under the above may be extended for not more than 7 months to allow removal of the profile and administration of an APFT.

14.  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 office, grade, rank, or rating.  It provides for MEB's, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.

	a.  Paragraph 3-1 provides that the mere presence of 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.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

	b.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 

	c.  Paragraph 3-4 (Line of duty (LD) decisions) states that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LD criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay and it must not have resulted from the Soldier’s intentional misconduct or willful neglect and not have been incurred during a period of unauthorized absence.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of that regulation states, in pertinent part, that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.  Personnel who are physically unfit for retention will not be separated because of expiration of term of service unless processing for separation because of physical disability is waived.  A Soldier enlisted or ordered to active duty normally will be discharged or released from active duty on the date he or she completes the period for which enlisted or ordered to active duty.

16.  Army Regulation 635-200 further states that prior to discharge or release from active duty, individuals will be assigned reentry eligibility (RE) codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the USAR.  Table 3-1 states an RE-1 applies to Soldiers completing their term of active service who are considered fully qualified to reenlist.

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, U.S Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  Medical documents he provided show he was given temporary physical profiles for low back pain prior to having surgery to correct or improve this condition.  The assigned temporary profile serial numerical designators indicated the degree of any limitations he had due his low back pain were determined to be temporary in nature and would likely improve with correction.

2.  Regarding his contentions that his commander didn't request an LD determination, evidence indicates the Army determined his medical condition was in the LD.  Regulatory policy doesn't provide for a trial of duty for medical conditions such as those of the applicant. 

3.  He had surgery on his spine in March 2005.  His surgeon granted him 30 days of convalescent leave and prescribed him physical therapy.  It is reasonable to believe his surgeon would have granted him additional convalescent leave if he believed the applicant's medical condition warranted it.  There is no evidence he was given a permanent profile or even a temporary profile after this time.  Absent evidence to the contrary, it is reasonable to presume that based on the available evidence his doctor believed he was able to perform his duties.

4.  Regulatory policy generally does not provide for processing a Soldier through the PDES unless the medical condition is considered to be a permanent condition that may require significant duty assignment limitations.  There is no evidence he had a medical condition that warranted processing through the PDES.

5.  Though it is unclear whether his circumstances required that he pass an APFT to meet the eligibility requirements for reenlistment, there is no evidence to show he was not permitted to reenlist for this reason.  Regulatory policy provides that Soldiers with temporary profiles will be given additional time to prepare to take a record APFT.  His record doesn't show he was flagged for APFT failure prior to his being awarding a physical profile, but it would have been a valid reason for denying him reenlistment if true.  Therefore, absent evidence to the contrary, it appears he was not prevented from voluntarily reenlisting due to a requirement to pass an APFT.

6.  Further, he was assigned an RE-1 indicating he was considered qualified to reenter the U.S. Army if all other criteria are met.


7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request.

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)                                         AR20130007935



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ABCMR Record of Proceedings (cont)                                         AR20130007935



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