IN THE CASE OF:	   

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130009150 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the applicant's case be considered by a Medical Evaluation Board (MEB) for cervical dystonia and depression.

2.  Counsel states:

	a.  The applicant was denied "In Line of Duty (LOD)" status for two conditions that either occurred or were aggravated in the LOD while he was on active duty and entitled to basic pay, which caused him not to meet retention standards.   

	b.  While serving in the California Army National Guard (CAARNG) he was mobilized in June 2007 in support of Operation Iraqi Freedom.  He reported to Camp Shelby, MS for training on or about 21 June 2007.  During training on 
26 June 2007 at the range and after exposure to hours of excessive humidity and temperatures while in full battle gear, he suffered heat exhaustion and severe cervical strain.  The heat exhaustion occurred on active duty.  The cervical strain aggravated a pre-existing condition and created a new condition, cervical dystonia, as the result of active duty.  The recommendation for the applicant to be released from active duty (REFRAD) was immediately acted upon and he was REFRAD "not by reason of physical disability" on 28 June 2007.

	c.  His orders are facially inaccurate as he was quite clearly being REFRAD "by reason of a physical disability."  The sole reason for this release was to avoid having him remain on active duty while his medical issues were being dealt with.  The applicant had to contact the Camp Shelby Inspector General's office to obtain LOD determination documents as none were completed.  The release returned the applicant to the CAARNG with LOD determinations with respect to the neck and heat exhaustion and both were found "In the LOD."

	d.  In September 2007, he was declared "Not fit to Perform Military Duties" due to migraine headaches.  This conclusion was reversed on 23 October 2007 after a neurology evaluation.  In October 2007, there was an approved LOD for heat exhaustion with residuals and two LODs for the neck injury.  In November 2007, the CAARNG approved the LOD for heat exhaustion with residuals, even though the LOD from 26 June 2007 was all that was required.  In February 2008, the National Guard Bureau (NGB) approved the LOD for the neck strain injury, but negated the value of the finding by declaring "In Line of Duty – EPTS (Existed Prior to Service) – Service Aggravation – This Episode Only."  Heat exhaustion was not mentioned.  This determination meant the applicant was not viewed as having long-term issues with the neck.  That conclusion was incorrect.

	e.  In February 2008, the applicant's chiropractor opined he could not run with heavy equipment or do pushups or sit-ups and "any other strenuous activity."  The LOD for heat exhaustion with residuals took a more tortuous course.

	f.  On 27 February 2008, the applicant had a depressive episode which caused hospitalization until 2 March 2008.  The diagnosis was depressive disorder not other specified with a guarded mid-and long-term prognosis.  On 
29 February 2008, a DA Form 2173 (Statement of Medical Examination and Duty Status) was initiated.  On 25 August 2008, an investigating officer was appointed.  The CAARNG required a psychiatric evaluation on 4 March 2008.  That evaluation by an Air Force physician resulted in a diagnosis of cervical dystonia and depression.

	g.  In March 2008, the applicant appealed the February 2008 LOD final determination.  The applicant provided a statement as to his perception of his difficulties on 14 July 2008.  In August 2008, the CAARNG tried to illegally separate the applicant.  That failed.  He partially prevailed in that appeal and the NGB found on 19 March 2009 his heat exhaustion was in the LOD and his neck strain was in the LOD – EPTS – Aggravation (this episode only).



	h.  There was still no MEB even though the Air Force physician had expressly recommended an MEB.  For reasons that are unclear a gap of nearly 16 months occurred while nothing was done.  Then in June 2010 the applicant was diagnosed with prolonged adjustment disorder with secondary depressed mood.  In July 2010, the State surgeon found that his prolonged adjustment disorder with depressed mood "may be" related to his heat injury.  In August 2010, the NGB Surgeon found that the prolonged adjustment disorder with depressed mood was incurred in the LOD secondary to a heat injury and a neck injury.  However, in December 2010 the Chief of the NGB Personnel Division found that the applicant's depression was not in the LOD.  The applicant appealed the denial.  On 7 June 2011, the U.S. Army Human Resources Command notified the applicant that he was found "Not in the Line of Duty."  The CAARNG notified him of the same result on 22 September 2011.

	i.  The applicant was separated from the CAARNG on 3 August 2011 at his expiration term of service (ETS).  He continues to suffer from depression secondary to the heat injury.  The diagnosis of cervical dystonia, which the applicant has, is more than simple neck strain.  Two LODs approved by the NGB Surgeon on 19 March 2009 have not been acted upon.  Progress notes from the Sacramento Department of Veterans Affairs (VA) confirm the diagnosis of depression.  Cervical dystonia was diagnosed by the Sacramento VA in 2011, confirming the Air Force diagnosis in 2008.  The applicant deserves to be placed in the Disability Evaluation System and the CAARNG should be excluded from participation in any form.

3.  Counsel provides:

* Service personnel records
* Service medical records
* VA medical records

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the Regular Army and inactive service in the U.S. Army Reserve, the applicant enlisted in the ARNG on 4 August 2005.  He was promoted to sergeant on 5 August 2005.

2.  On 18 June 2007, he was mobilized for deployment in support of Operation Iraqi Freedom.  




3.  A DA Form 2173, dated 26 July 2007, shows he was treated for heat exhaustion and neck pain on 26 June 2007 at Camp Shelby.  This form shows the injury was considered to have been incurred in the LOD.   

4.  A DA Form 3349 (Physical Profile), dated 27 June 2007, shows he was issued a temporary profile "2" for neck pain and stiffness at Camp Shelby.   Medical documentation provided by counsel shows the applicant was also treated for neck strain and exposure to weather conditions causing exhaustion and mild dehydration on 27 June 2007 at Camp Shelby.

5.  On 28 June 2007, he was REFRAD, not by reason of physical disability.

6.  Evidence shows the applicant was found not fit to perform his military and civilian duties for the period 11 September 2007 to 23 October 2007 due to migraine headaches.  He was cleared for duty as of 23 October 2007. 

7.  A DA Form 2173, dated 1 November 2007, shows he sprained his neck on 
26 June 2007 at Camp Shelby.  This form states:

* he was having mild neck discomfort while adjusting sights on his rifle
* he experienced numbness in his lips and blurred vision
* he was sent to the hospital where X-rays revealed he had spurs in his neck from an old broken spinous process
* the injury is considered to have been incurred in LOD

8.  In February 2008, a LOD investigation determined his neck strain injury was "IN LINE OF DUTY - EPTS - SERVICE AGGRAVATION - THIS EPISODE ONLY."

9.  Medical records provided by counsel show the applicant was diagnosed with depressive disorder on 2 March 2008.

10.  Evidence shows the applicant was found not fit to perform his military and civilian duties for the period 25 March to 25 June 2008 for cervical dystonia, chronic tension headaches, and depression.  This form shows the physician recommended an MEB.  

11.  In September 2008, an LOD investigation determined his depression was "NOT IN LINE OF DUTY – NOT DUE TO OWN MISCONDUCT." 

12.  The VA diagnosed him with prolonged adjustment disorder with secondary depressed mood in June 2010. 

13.  A DD Form 261 (Report of Investigation LOD and Misconduct Status), dated 
27 September 2010, shows the applicant's cervical dystonia was determined to be "In LOD – EPTS – Service Aggravation – This Episode Only" for neck strain.

14.  On 3 August 2011, he was honorably discharged from the ARNG.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several LOD 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 the proximate cause was while performing active duty or inactive duty training.

16.  Army Regulation 635-40 states, in pertinent part, that when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of his or her grade or rank because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501.

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

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions and request for an MEB were carefully considered.  However, the record shows the applicant was mobilized in June 2007, but several days after reporting to Camp Shelby he complained of neck pain and heat exhaustion.  Although the records provided by counsel are replete with references to "neck injury" and "heat injury," the record from 2007 shows he had neither.  

2.  The applicant presented for medical evaluation and was also found to be mildly dehydrated.  He did not have a neck injury and he did not have a heat injury.  His heat exhaustion was a completely transient and treatable condition with no sequelae.  He now claims to be depressed, in part, due to his dehydration in 2007 but there is insufficient evidence to support this claim.  

3.  He was REFRAD because of a pre-existing condition that became symptomatic while at the rifle range.  He had prior fracture of several cervical vertebrae and his neck started hurting while adjusting the sights on his rifle.  

4.  Counsel questions the appropriateness of the applicant's discharge.  The applicant was discharged because he continued to complain of neck pain.  Since he suffered no injury at the qualification range, it was entirely appropriate to conclude that with proper activity modification, he would return to his pre-mobilization state of health.  He was discharged "not for physical disability."  His REFRAD in June 2007 was not for physical disability, but because he was not currently deployable.

5.  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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.    

6.  Evidence shows, after his REFRAD in June 2007, the applicant continued to serve in the ARNG until he was separated at his ETS (3 August 2011).  There is no evidence which shows he was unable to perform his military duties.

7.  In view of the foregoing, there is no basis for granting counsel'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)                                         AR20130009150



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130009150



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1