BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130012584 


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 on active duty in the California Army National Guard (CAARNG) Active Guard Reserve (AGR) Program in order to complete physical disability processing.  He also requests correction of his records to show his Department of the Army selection for promotion to major (MAJ).

2.  He states:

	a.  He was in the middle of a medical evaluation board (MEB) and his commanding officer knew he was going to Fort Irwin, CA, to complete the MEB.  This was past his projected retirement date of 1 April 2012 due to a lack of access to the proper medical personnel to complete the MEB determination.

	b.  The CAARNG AGR Branch post-dated his records on 24 May 2012 to reflect an April retirement date with no notification prior to the shut-off of all pay and benefits while he was continuing his medical processing.

	c.  The CAARNG did not promote him per the Department of the Army selection to MAJ in 2008 and would not transfer him so his promotion would take place.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 March 2012
* DD Form 215 (Correction to DD Form 214) for the period ending 31 March 2012
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 26 February 2009
* CAARNG memorandum, dated 1 August 2011, subject:  Non-Selection for Retention under the Provisions of National Guard Regulation 635-102 (Officers and Warrant Officers – Selective Retention)
* DA Form 3349 (Physical Profile), dated 13 December 2011
* page 3 of DD Form 2808 (Report of Medical Examination)
* CAARNG Orders 132-1242, dated 11 May 2012, separating him from the ARNG
* CAARNG Orders 136-1072, dated 15 May 2012, releasing him from active duty
* National Guard Bureau (NGB) Special Orders Number 206 AR, dated 8 June 2012, withdrawing his Federal recognition
* State of California Claim for Disability Insurance Benefits – Doctor's Certificate
* Congressional letters
* DA Form 1559 (Inspector General (IG) Action Request), dated 30 May 2012
* U.S. Army Medical Department Activity memorandum, dated 6 July 2012, subject:  (Applicant)
* email from the Army Review Boards Agency Congressional and Special Actions, dated 3 July 2013
* letter from the Department of Veterans Affairs, dated 14 June 2013
* numerous medical documents
* Headquarters, Multi-National Corps Iraq, Baghdad, Iraq, Permanent Orders 161-160, dated 10 June 2006, awarding him the Combat Action Badge
* two Meritorious Service Medal Certificates
* leave and earnings statement
* letter from an internal medicine doctor

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in the U.S. Marine Corps and CAARNG, the applicant was appointed as second lieutenant in the ARNG on 23 July 1994 and was granted Federal recognition.

2.  He was promoted to first lieutenant on 14 July 1997 and to captain (CPT) on 17 October 2001.

3.  On 8 October 2001, he was ordered to active duty in support of Operation Noble Eagle and he was released from active duty (REFRAD) on 31 May 2002 at the completion of his required active service.

4.  On 10 March 2005, he was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Kuwait/Iraq from 28 June 2005 to 11 June 2006.  He was REFRAD on 6 July 2006.

5.  On 1 July 2007, he was ordered to Full-Time National Guard Duty in an AGR status.

6.  In a 3 July 2008 memorandum, the CAARNG G-1 Army Division notified him that he had been selected for promotion by the 2008 CPT-MAJ Army Promotion List (APL) Selection Board.  He was advised to sign an enclosed delay of promotion memorandum to maintain his eligibility for promotion and return it to the issuing headquarters.  The memorandum stated he could choose to accept promotion in the Individual Ready Reserve (IRR) and, if he elected this option, a letter of resignation must be forwarded to this headquarters requesting transfer to the IRR to accept his promotion.  If he chose to remain assigned to the CAARNG, he could delay his promotion by signing the attached memorandum.

7.  On 3 July 2008, he signed the delay of promotion memorandum to maintain his eligibility for promotion.  He indicated he was an AGR officer and had been serving continuously since 1 August 2007.  He acknowledged that he understood if he were released or removed from an AGR status and had not been previously promoted, he must:

	a.  be promoted in a position vacancy, or

	b.  be transferred to the USAR to accept promotion, or

	c.  decline the promotion at which time he would be considered a non-select for promotion or a failure of selection; and

	d.  one of these options must be taken within 3 years from his promotion eligibility date.

8.  On 15 August 2008, he was REFRAD and he was ordered to active duty in support of Operation Iraqi Freedom on the following date.

9.  On 26 February 2009, he was issued his 20-year letter.

10.  He was REFRAD on 3 August 2009 at the completion of his required active service and apparently he was ordered to active duty in an AGR status again.

11.  In a CAARNG memorandum, dated 15 May 2010, subject:  Selection for Retention under the Provisions of National Guard Regulation 635-102, he was informed that he had been selected for retention.  The 2010 Officer Selective Retention Board (OSRB) continued his service for 1 year.  He was advised that he would be considered again in Calendar Year 2011.

12.  His officer evaluation report (OER) for the period ending 21 February 2011 evaluated him as a logistics officer.  This report shows he passed his Army Physical Fitness Test (APFT), successfully performed his duties, and he was rated as "Best Qualified" for promotion to the next higher grade.

13.  In a CAARNG memorandum, dated 1 August 2011, subject:  Non-Selection for Retention under the Provisions of National Guard Regulation 635-102, he was informed that he had not been selected for retention by the OSRB and he would be separated from the ARNG effective 1 April 2012 and transferred to the U.S. Army Reserve (USAR) Retired Reserve.

14.  On 13 December 2011, he was assigned a temporary physical profile rating of "2" in the lower extremities for lumbar pain with an expiration date of 13 January 2012.  In block 5 (Functional Activities for Permanent and Temporary Profiles) of his DA Form 3349, the profiling officer marked "Needs MEB/Physical Evaluation Board (PEB)" for items a, d, and e.  The profiling officer noted that the applicant could lie down for 10 minutes every hour while at work.

15.  On 26 March 2012, he completed a DD Form 2807-1 (Report of Medical History) and he checked the "Yes" blocks indicating he previously had or now had:

* 12a –  painful shoulder, elbow, or wrist (e.g., pain, dislocation, etc.)
* 12b – arthritis, rheumatism, or bursitis
* 12c – recurrent back pain or any back problem
* 12d – numbness or tingling
* 12g – impaired use of arms, legs, hands, or feet
* 12h – swollen or painful joint(s)
* 13i – high or low blood sugar
* 14c – currently in good health
* 16f – high or low blood pressure
* 20 – treated in an emergency room
* 23 – illness or injury other than those already noted

16.  In block 29 (Explanation of "Yes" Answer(s)) of his DD Form 2807-1 he offered the following explanations:

	a.  He fell on his shoulder in May 2011 and he was currently having physical therapy for a "frozen" shoulder.

	b.  He had arthritis in his left shoulder, left and right Achilles tendons, and lower back.

	c.  He was in Iraq on multiple convoys causing back pain and was also in an automobile accident in September 2010.  His vehicle was rear-ended and he was currently in physical therapy.

	d.  He had tingling in his knee and foot from a back injury (sciatic nerve).

	e.  He has limited motion in his left arm and shoulder with extreme pain.

	f.  He was treated in an emergency room for back pain.

17.  On 26 March 2012, he underwent a physical examination which determined he was not qualified for service.  The DD Form 2808 (Report of Medical Examination) shows the examining physician noted the applicant's diagnoses as depression, lower back pain, left shoulder pain, "HLP," elevated blood pressure, attention deficit hyperactivity disorder, and post-traumatic stress disorder.  He was assigned physical profile ratings of "3" for the upper extremities and "3" for the lower extremities.  The examining physician referred the applicant to his primary care manager and the Department of Veterans Affairs.

18.  His OER for the period ending 31 March 2012 evaluated him as an S-4 (logistics) primary staff officer.  This report shows he passed his APFT, successfully performed his duties in an exemplary manner, and he was rated as "Best Qualified" for promotion to the next higher grade.

19.  He was released from active duty on 31 March 2012.

20.  On 25 April 2012, he was assigned a permanent profile rating of "3" for the lower extremities for an L2-S1 lumbar discopathy (herniated disk) with resultant severe lower back pain.  The DA Form 3349 shows the profiling officer indicated the applicant did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and needed an MEB.  The DA Form 3349 is not signed by an approving authority.  The applicant's limitations were listed as no climbing, crawling, crouching, jumping/landing, lifting/lowering/carrying, running, walking/marching.  The profiling officer noted:

SM [service member] with MRI [magnetic resonance imaging]-confirmed L4-S1 disc protrusions and L2-L3 degenerative changes, lumbar spine, per MRI study of 21Dec2011 [21 December 2011]; severe back pains date from trauma to back (SM's vehicle was rear-ended) on 09Sept2009 [9 September 2009].  Back injury has resulted in inability to perform certain functional activities and inability to perform APFT.  IAW [In accordance with] AR [Army Regulation] 40-501, he is referred for MEB process.

21.  CAARNG Orders 132-1242, dated 11 May 2012, separated him from the ARNG effective 1 April 2012 and transferred him to the USAR Control Group (Retired Reserve) on the date immediately following.

22.  His records are void of evidence indicating he was undergoing physical disability processing (MEB/PEB) prior to his separation from the ARNG.

23.  On 30 May 2012, he submitted a DA Form 1559 requesting IG assistance in processing a line-of-duty inquiry.  His service records are void of the results of the IG action.

24.  In a U.S. Army Medical Department Activity memorandum, dated 6 July 2012, subject:  (Applicant), the Lead Physical Evaluation Board Liaison Officer stated the applicant was recommended for an MEB on 25 April 2012 when he was having a physical examination at Fort Irwin, CA.  The liaison officer stated the applicant's permanent "3" physical profile rating was approved by the Deputy Commander for Clinical Services on 5 May 2012 and he was informed by email that the applicant had been discharged from the CAARNG effective 28 March 2012.

25.  In an email from the Army Review Boards Agency Congressional and Special Actions, dated 3 July 2013, the applicant was advised to provide a closure letter for the State IG report.  He was also advised that it is the responsibility of each State Adjutant General to issue the appropriate separation documents.  He was further advised that the State must issue his promotion orders.  If he wants to be promoted by the Secretary of the Army, he would have to transfer to the USAR IRR, then seek a position with a USAR unit.  As of 8 July 2013, he had not provided a response.

26.  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.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

27.  Army Regulation 635-40, paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a commissioned officer in the ARNG on 23 July 1994 and he was separated on 1 April 2012 by reason of non-selection for retention during the Fiscal Year 2011 OSRB process.

2.  There is no corroborating evidence to support his contention that he was in the middle of an MEB prior to convening of the OSRB, although there is evidence that he was recommended for referral to an MEB.

3.  The evidence of record shows he was in an automobile accident in September 2010 and suffered back pain.  He was assigned a temporary physical profile in August 2011 for lumbar pain.  A permanent physical profile was initiated on 25 April 2012 for lumbar discopathy with resultant severe lower back pain.  Although the profiling officer recommended the applicant's referral for MEB processing, his service records do not indicate he was evaluated by an MEB.  The DA Form 3349 recommending this physical profile was not signed by an approving authority.

4.  His OER's through March 2012 show he performed his military duties without limitations.  Therefore, there appears to have been no valid medical reason to extend him on active duty for physical disability evaluation processing.

5.  The applicant's continued performance of assigned duties supports a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury related to his service that prevented him from performing his duties.  Since he was not in an approved MEB process prior to convening of the OSRB, his separation from the ARNG on 1 April 2012 was proper and correct.  Therefore, he is not eligible for reinstatement in the CAARNG AGR Program.

6.  He was properly notified that he was not being retained in the CAARNG after 1 April 2012.  The Army was not required by law or regulation to keep him on active duty for the purpose of referring him through the physical disability process.

7.  The evidence of record shows he was selected for promotion to MAJ by the 2008 CPT-MAJ APL Selection Board and he signed a delay of promotion memorandum to maintain his eligibility for promotion for up to 3 years from his promotion eligibility date, but not later than 3 July 2011.  However, he was not selected for retention by the OSRB on 1 August 2011.  Therefore, he was no longer in a promotable status and is not eligible for correction of his records to show his rank as MAJ.

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)                                         AR20130012584



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ABCMR Record of Proceedings (cont)                                         AR20130012584



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