IN THE CASE OF:	

		BOARD DATE:	    23 January 2014

		DOCKET NUMBER:  AR20130009483 


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 records to show he was retired from active duty by reason of physical disability in lieu of his Reserve retirement from the Georgia Army National Guard (GAARNG).

2.  The applicant states he never had a fit-for-duty physical examination after his active duty ended in the Community-Based Warrior Transition Unit (CBWTU).  It was never explained to him that the decision for a retention board involved health.  He still has medical issues from his deployment and surgery, including hypertension, arthritis, incontinence, and sexual and urinary problems.

3.  The applicant provides:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* MEDCOM Form 699-R (Report of Mental Status Evaluation)
* fit-for-duty/release from active duty request
* DA Form 3349 (Physical Profile)
* selected service and civilian medical records
* list of medications
* 5-day blood pressure check
* TRICARE correspondence and referral
* dental records
* DA Form 2807-1 (Report of Medical History)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 24 May 1956.  He will turn 60 years of age in May 2016.

2.  Having prior Regular and Reserve enlisted service, he enlisted in the GAARNG on 25 March 1999 and he held military occupational specialty 91J (Quartermaster and Chemical Specialist).

3.  He served through multiple extensions in a variety of assignments and he attained the rank/grade of sergeant (SGT)/E-5.

4.  He entered active duty on 27 November 2010 and he served in Kuwait/Iraq in support of Operation Iraqi Freedom from 28 January to 2 May 2011.

5.  During April 2011, he received a change-of-rater DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1 November 2010 through 11 April 2011.  This NCOER shows:

* he did not take the Army Physical Fitness Test (APFT) due to deployment, but he met the height and weight standards
* he was rated "Excellence" or "Success" and "Fully Capable" by his rater and "Successful" or "Superior" by his senior rater

6.  His records contain a DA Form 2173, dated 16 May 2011, that shows he was seen in an outpatient status on 2 May 2011 at Fort Hood, TX, for prostate cancer. He was assigned to the Warrior Transition Brigade, Fort Hood.

7.  He provides selected documents as follows:

	a.  An Interdisciplinary Discharge medical document from the Carl R. Darnall Army Medical Center, Fort Hood, shows he was admitted on 7 June 2011 and discharged to the Fisher House on 9 June 2011.  He underwent an uncomplicated radical retropubic prostatectomy (a surgical procedure in which the prostate gland is removed through an incision in the abdomen).

	b.  The first page of an evaluation report from Care Rehabilitation Physical Therapy, Forest Park, GA, shows he was seen on 11 July 2011.  He had complained of intermittent urinary incontinence with the current episode beginning on 7 June 2011 following surgery for prostate cancer.  He reported his symptoms had been decreasing while going through biofeedback and simulation with physical therapy in Texas, but the symptoms had increased since moving to Georgia.  The results of his examination are not submitted with his application.
	c.  Several Standard Forms 600 (Chronological Record of Medical Care), dated in 2011 and 2012, related to follow-up examinations after his prostate cancer surgery, as well as hypertension.

	d.  A MEDCOM Form 699-R shows he underwent a mental status evaluation at Fort Hood on 8 September 2011 for clearance to transfer from the Warrior Transition Brigade to the CBWTU.  He was found to be in the normal range.

	e.  An evaluation report from a medical doctor at the Urology of Greater Atlanta, dated 28 December 2011, stating he evaluated the applicant after his June 2011 prostatectomy and opines that he had done well with the exception of having some stress urinary incontinence and erectile dysfunction post surgery.  From a urological standpoint, there was no restriction in the activity that he could do, but he had a problem when performing any type of increased intra-abdominal pressure that may come with lifting or running.  Until his incontinence resolves, he would not be able to do heavy lifting.

	f.  A DA Form 3349, dated 23 January 2012, shows he was assigned a permanent physical profile for prostate cancer status post-radical prostatectomy. 
The form is signed by the profiling officer but not by an approving authority.  It does not indicate he needed a medical evaluation board.

8.  On 23 January 2012, he underwent a fit-for-duty evaluation in light of his diagnosis of prostate cancer, status post-radical prostatectomy.  He was found fit for duty.  The medical official stated he met the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 
40-400 (Patient Administration).  He was able to perform his military occupational specialty duties within the limits of his physical profile.

9.  On 8 March 2012, he was honorably released from active duty under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required service.

10.  On 24 August 2012, he received an annual NCOER covering the period 12 April 2011 through 11 June 2012.  This NCOER shows:

* he was assigned to the Warrior Transition Brigade during the initial 11 months of the rating period
* he did not take the APFT, but he met the height and weight standards
* he was rated "Excellence" or "Success" and "Fully Capable" by his rater and "Successful" or "Superior" by his senior rater

11.  On 30 August 2012, the GAARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

12.  On 18 December 2012, he requested retirement from the ARNG and transfer to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) effective 24 March 2013.  His immediate, intermediate, and senior commanders recommended approval.

13.  On 25 January 2013, the GAARNG published Orders 025-928 discharging him from the ARNG and transferring him to the Retired Reserve effective 24 March 2013.

14.  He was honorably discharged from the ARNG and transferred to the Retired Reserve effective 24 March 2013.  His NGB Form 22 shows he completed 20 years, 8 months, and 1 day of total service for retired pay.

15.  An advisory opinion was received from NGB on 24 July 2013 in the processing of this case.  NGB recommended disapproval of the applicant's request based on the following:

	a.  The applicant contends he was never given a fit-for-duty physical examination after leaving active duty in the CBWTU.  He references a retention board in his case and that he has medical issues from a previous deployment.  According to the GAARNG, the applicant requested a transfer to the Retired Reserve on 18 December 2012, effective 24 March 2013.  The GAARNG also states he did not appear before the retention board in 2013 or any prior year.

	b.  The NGB Retirement Services Branch Physical Disability Section reviewed this case for validity.  According to that office, the applicant was found fit for duty on 12 January 2012 by a staff urologist.  Notification of his fit-for-duty status was sent to the U.S. Army Human Resources Command (HRC), Fort Knox, KY, by the CBWTU Commander on 23 January 2012, to include an updated physical profile.  The fit-for-duty determination was the medical board's finding on the line-of-duty issue, which was prostate cancer.  The military found the Soldier fit-for-duty for continued duty from a medical standpoint for the issue relating to the line-of-duty injury.  As a result, no further medical evaluation proceedings were required for the applicant.

	c.  The email from the NGB Retirement Services Branch Physical Disability Section, dated 18 July 2013, states, in part:

On 18 December 2012, [Applicant] requested in writing to be retired from the Army National Guard and transferred to the retired reserve.  He will be entitled to receive military retired pay and benefits for his service, starting on his 60th birthday or earlier.  Retired pay only could possibly begin three-months earlier than his 60th birthday based upon the status of his deployed service in 2011.  TRICARE Retiree benefits will not begin until the Soldier's 60th birthday.

[Applicant] should apply to Human Resources Command – Fort Knox, Kentucky, within one year of his eligibility (age 59).  When the Soldier applies for retired pay at age 60, he should submit the 20 year letter along with other documentation proving qualifying service as part of his retirement application packet.  The Soldier should submit Department of Defense (DD) Form 108 (Application for Retired Pay Benefits); DD Form 2656 (Data for Payment of Retired Personnel); [and] a Standard Form 1199A (Direct Deposit Sign-Up Form).  AR 135-180 [Army Regulation 135-180 (Qualifying Service for Retired Pay Non-regular Service)], Chapter 2 governs non-regular retirement pay.  Assistance with this process and validation of early retired pay is provided by the State RPAM [Retirement Points Account Management] Administrator.

Additionally, it is the recommendation of the NGB, Retirement Services – Physical Disability Section, that [Applicant] take his Department of Defense Form 214 [Certificate of Release or Discharge from Active Duty] from his active service period and his medical records (including his approved line of duty) to the local Veterans Administration [Department of Veteran Affairs] (VA) Office.  The VA can assist him with processing a claim for disability compensation based on his active service and medical conditions that were in the line of duty.  If approved, disability compensation from the VA could possibly be paid retroactive back to the date of his release from active service minus any military pay or compensation received after that date.

	d.  The GAARNG concurs with this recommendation.

16.  The applicant was provided with a copy of this advisory opinion on 25 June 2013 to allow him an opportunity to respond or rebut; however, he never responded.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18 (Separation or Retirement for Physical Disability).  It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

	a.  Paragraph 3-1 states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

	b.  Paragraph 3-2 states 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service.

	c.  Paragraph 3-4 states that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty 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 (IDT).

		(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.

DISCUSSION AND CONCLUSIONS:

1.  In order for the applicant to receive disability retirement, there had to have been a finding of unfitness diagnosed by a competent authority for a condition or a disability that was incurred or aggravated while he was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training and the disability must not have resulted from his intentional misconduct or willful neglect. 
This is not the case here.

2.  Even if there had been a disability in the applicant's case, 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 he was reasonably expected to perform because of his grade, specialty, or rating.

3.  The available evidence shows the applicant served on active duty from 27 November 2010 to 8 March 2012.  In June 2011, he underwent radical retropubic prostatectomy surgery.  Upon his discharge from the hospital, he was reassigned from the Warrior Transition Brigade to the CBWTU in an effort to place him closer to home.

4.  He continued his therapy and medications and he was proactive in his follow-up treatment.  The medical documentation he provides clearly demonstrates that the standard of care was met for him.  He was treated for an illness and after his surgery he was given a fit-for-duty assessment, cleared for duty, and released from active duty to the control of his GAARNG unit.  The Army found him fit for duty from a medical standpoint for condition of prostate cancer.  As a result, no further medical evaluation was required.

5.  His fitness is further confirmed by the entries on his NCOER for the rating period 12 April 2011 through 11 June 2012, which shows he was rated "Excellence" or "Success" and "Fully Capable" by his rater and "Successful" or "Superior" by his senior rater.

6.  There is insufficient evidence to show the applicant suffered from a disabling condition that would have warranted his separation processing through medical channels.  His ultimate discharge from the GAARNG was a voluntary action for personal reasons, not for medical reasons.  Therefore, he is not entitled to 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 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)                                         AR20130009483



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ABCMR Record of Proceedings (cont)                                         AR20130009483



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