BOARD DATE:	 30 July 2014

		DOCKET NUMBER:  AR20130019676


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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20130002613, dated 3 September 2013, wherein he requested correction of his records to show he was medically discharged/retired on 22 January 2006, instead of showing he was honorably released from active duty.

2.  The applicant states:

* he was wounded by a roadside bomb on 24 August 2005 in Habbaniyah, Iraq
* he was treated at Walter Reed Army Medical Center (WRAMC) in Washington, DC
* his doctor at WRAMC advised him to pursue a medical discharge, but he strove to redeploy with his fellow comrades
* he was sent to receive outpatient care in hopes of a full recovery; unfortunately, a full recovery was not possible
* after he was released from active duty, he attended drill at his unit; however, he was only allowed to sit in a chair and he didn't participate in any military occupational specialty (MOS) training/MOS specific activities
* his right to receive entitlement for all repercussions of the military's failure to follow routine protocol is evidenced through various medical records, Army letters, and numerous Department of Veterans Affairs (VA) examinations and determinations
* these documents prove he has been unfit for duty since 24 August 2005, when an improvised explosive device (IED) injured him while he was on patrol near Ramadi, Iraq

3.  The applicant provides the following documents, arranged chronologically:

* Air Force (AF) Form 3899 (Aeromedical Evacuation Patient Record), dated on or about 24 August 2005
* Narrative Summary and Patient Discharge Instructions (Page 1), dated     1 September 2005
* DA Form 4980-10 (Purple Heart Certificate), dated 8 September 2005
* automated version of Standard Form (SF) 600 (Medical Record – Chronological Record of Medical Care), dated 12 September 2005
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 September 2005
* SF 600, dated 21 October 2005
* a memorandum from his medical doctor, dated 14 November 2005, subject: Release from Medical Attention for: [Applicant]
* several pages of Radiologic Examination Reports
* DA Form 3349 (Physical Profile), dated 1 December 2005
* automated version of SF 513 (Medical Record – Consultation Sheet)
* a memorandum from the U.S. Army Human Resources Command (HRC), Alexandria, VA, dated 19 December 2005, subject: Completed Approved Line of Duty (LOD) Investigation – [Applicant], 2888, Specialist (SPC)
* Orders 356-0015, issued by Mobilization Center Shelby, Camp Shelby, MS on 22 December 2005
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 22 January 2006
* Post-Deployment Health Reassessment (PDHRA), dated 28 January 2007
* a memorandum from Company A, 1st Battalion (Heavy), 110th Infantry Regiment (Mechanized), 28th Infantry Division (Mechanized, Pennsylvania Army National Guard (PAARNG), dated 14 April 2008, subject: Permanent Profile and Medical Separation
* a memorandum from Headquarters, 1st Battalion, 110th Infantry Regiment, PAARNG, dated 17 June 2008, subject: Request for Permanent Profile and MOS Medical Retention Board (MMRB)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 25 June 2009
* a letter from the PAARNG, addressed to his Member of Congress, dated  6 June 2013
* a memorandum from Headquarters and Headquarters Company, 1st Battalion, 110th Infantry Regiment, PAARNG, dated 2 October 2013, subject:  Statement of Service/Performance Statement for SPC [Applicant]
* his VA Rating Decisions, dated 7 August 2010 and 10 October 2013
* VA Form 4107 (Your Rights to Appeal Our Decision)
* VA Form 21-0958 (Notice of Disagreement)
* a letter from the VA, dated 11 October 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130002613, dated 3 September 2013.

2.  The applicant provides numerous documents pertaining to the injuries he sustained on 24 August 2005.  These items are considered new evidence not previously considered by the Board; therefore, this new evidence will now be considered by the Board.

3.  On 26 June 2003, the applicant enlisted in the PAARNG.  

4.  On 26 March 2004, he entered active duty for the purpose of completing his initial entry training.  On 6 August 2004, he completed one-station unit training and the basic airborne course at Fort Benning, GA.  He was awarded MOS 11B (Infantryman) and he was honorably released from active duty and returned to the control of the PAARNG on this same date.

5.  On 19 January 2005, he was mobilized and ordered to active duty in support of Operation Iraqi Freedom.  He deployed overseas, and on or about 12 June 2005, he began his service in Kuwait and Iraq.

6.  On 24 August 2005, while on patrol near Ramadi, Iraq, he was injured by shrapnel that resulted from an IED.  Medical documents show he sustained numerous injuries on the right side of his body, including a pulmonary contusion, damage to his right lung, liver, and right kidney.  As a result of these injuries, he was stabilized and medically evacuated to Landstuhl Regional Medical Center in the Federal Republic of Germany.
 
7.  On 30 August 2005, he was transferred to WRAMC.

8.  On 2 September 2005, he was released from WRAMC and placed on 30 days of convalescent leave.  Based on his medical doctor's discharge summary, contained on his automated SF 600, his injuries did not require surgery.
9.  His injuries were determined to have occurred in the line of duty.

10.  On 14 November 2005, he was released from the Nephrology [related to kidneys] Services Clinic at WRAMC and returned to duty.  His examining physician determined:

* he met the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 40-400 (Patient Administration)
* he still suffered from certain ongoing issues that required follow-up care

11.  On 1 December 2005, he was issued a temporary physical profile by a general internal medicine doctor at WRAMC.  According to his DA Form 3349, his examining physician determined:

* his condition warranted a "2" in the "P (Physical capacity or stamina)" and "L (Lower extremities)" PULHES factors
* his temporary profile should not exceed a 90 day duration, excluding recovery time

12.  On 22 January 2006, he was honorably released from active duty, at the completion of his required period of active service, and returned to the control of the PAARNG.  Following his release from active duty, he continued to attend his unit's monthly assemblies.  

13.  On 28 January 2007, he completed a PDHRA.  In this assessment, he noted several issues (medical and mental) he was experiencing; however, the PDHRA notes he declined referral for follow-up services related to these issues.

14.  On 14 April 2008, his chain of command requested that he be issued a permanent profile for his past injuries, and that he be medically separated as well.

15.  On 17 June 2008, his chain of command submitted a second request wherein they requested he be issued a permanent profile for his past injuries and that he be referred to an MMRB to determine his suitability for further service in MOS 11B.  His record is void of documentation that shows the final outcome of this request.

16.  Based on a review of his NGB Form 23B, it appears he did not complete any inactive duty training (IDT) or active duty service with his PAARNG unit of assignment after June 2008.

17.  His service medical records are not available for review and his available record is void of documentation that shows he was:

* issued a permanent physical profile that prevented him from performing the duties required of his rank/grade and military specialty
* diagnosed with an illness or an injury that warranted his entry into the Army physical disability evaluation system (PDES)

18.  On 25 June 2009, he was honorably discharged from the ARNG, at the conclusion of his active status commitment, and transferred to the U.S. Army Reserve (USAR).

19.  On 6 June 2013, the Director, Office of Policy and Legislative Affairs, PAARNG, responded in writing to a request for assistance from his Member of Congress.  Based on their response letter, it appears that this office of the PAARNG was unaware of either the applicant's physical profile or his approved LOD.

20.  In a memorandum to the ABCMR, dated 2 October 2013, a Unit Readiness Noncommissioned Officer (NCO) of the 1st Battalion, 110th Infantry Regiment stated: 

* SPC [Applicant] was critically injured on 24 August 2005 and spent  
4 months at WRAMC
* SPC [Applicant] was then released from active duty and returned to an IDT status – he performed IDT from January 2006 through April 2008
* during this timeframe, SPC [Applicant]'s injuries did not improve which precluded his participation in normal infantry duties
* once his unit returned in late 2006, the MEB process was initiated by the unit so that SPC [Applicant] could be discharged, due to the fact that he was not medically able to perform his duties

21.  He provides his VA Rating Decisions, dated 7 August 2010 and 10 October 2013, which show he was found to have numerous service-connected disabilities and was at least 80% disabled.

22.  National Guard Regulation 600-200 (Enlisted Personnel Management) prescribes the criteria, policies, processes, procedures and responsibilities to classify, assign, utilize, and transfer within and between states, enlisted Soldiers of the ARNG.  Paragraph 8-36n provides for the separation of an ARNG Soldier who has completed his or her commitment in the Selected Reserve.


23.  Army Regulation 600-60 (Physical Performance Evaluation System (PPES)) governs the Army PPES.  It applies to Soldiers of the Regular Army, ARNG of the United States (ARNGUS), and USAR.

   a. In accordance with the PPES, Soldiers with a permanent profile containing a numeral 3 or 4 in one of the profile serial factors will be evaluated by an administrative screening board, designated as the MMRB.  The purpose of this evaluation is to determine if the affected Soldier can perform satisfactorily in their primary MOS in a worldwide field environment.  

   b. This regulation gives the duties and procedures of the MMRB, as well as the procedures for processing the decision of the MMRB Convening Authority to recommend a Soldier for medical reclassification or to refer the Soldier into the Army Physical Disability Evaluation System (PDES) or the Reserve Component medical disqualification process, as applicable.

   c. The MMRB ensures continuity of effort among commanders, doctors, personnel managers, and the PDES.  It provides the MMRB convening authority with increased flexibility to determine a Soldier’s deployability, reclassification potential, or referral into the PDES (or processing for medical disqualification as applicable to certain Reserve Component cases).

   d. The MMRB evaluation process will not be used as a quality assessment of leadership, degree of technical skill, or promotion potential.  The MMRB recommendations will only be based on an enlisted Soldier’s physical ability to reasonably perform the duties of his or her primary MOS.

   e. The MMRB recommendations to the MMRB Convening Authority (MMRBCA) or the MMRBCA's decision are limited to the following:

* retain Soldier in primary MOS 
* recommend reclassification 
* place in a probationary status
* refer for evaluation by a medical evaluation board (MEB)/physical evaluation board (PEB) or medical disqualification, as appropriate

24.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

   a. Paragraph 4-7 provides that medical treatment facility (MTF) commanders with primary care responsibility will evaluate those referred to him or her and will, if it appears as though the member is not medically qualified to perform the duties of their office, grade, rank, or rating, or fails to meet retention criteria, refer the member to an MEB.

   b. Paragraph 4-8 provides that when a commander believes that a Soldier within their command is unable to perform the duties of their office, grade, rank, or rating because of physical disability, the commander will refer the Soldier to the responsible MTF for evaluation. The request for evaluation will be in writing and will state the commander’s reasons for believing that the Soldier is unable to perform his or her duties. 

   c. Paragraph 4–9 provides that the MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.

   d. Paragraph 4–10 provides that MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in AR 40–501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

25.  Department of Defense Directive 1332.18 covers separations or retirement for physical disability.  Paragraph 3.3 states the sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank, or rating because of disease or injury.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically discharged on          22 January 2006, instead of being released from active duty and returned to his PAARNG unit of assignment.

2.  The applicant was injured by an IED on 24 August 2005.  His service medical records are not available for review; however, based on the available evidence, it appears the injuries he sustained resulted in a relatively short period of hospitalization.  His available medical documentation shows:  

* no permanent injuries resulted from the IED – he had self-contained bleeding from a kidney and the liver that did not require surgical intervention 
* he was released from WRAMC, on 2 September 2005, after a period of observation to go on convalescent leave, and he continued his rehabilitative care following his return to duty
* prior to his separation from active duty, his attending physician(s) found him fit for duty
* his physical profile did not require his referral to an MMRB or MEB

3.  He continued to perform IDT service with his PAARNG unit for over 2 years following his release from active duty; however, it is unclear to what extent he was able to participate.  Later, in June 2008, his chain of command pursued his referral to either an MMRB or MEB, based on his inability to perform his infantry duties.  His record is void of documentation that shows the final outcome of this request.

4.  His record is void of documentation that shows he was unable to perform the duties required of his grade and/or MOS.  On the contrary, the available evidence shows that after his release from active duty, he continued to successfully drill and participate in unit training for at least 2 years.  Further, it is noted that a PDHRA completed in January 2007 indicated he declined referral for follow-up services related to several medical issues he was experiencing.
   
5.  He contends he was unable to perform his required duties as an infantryman; however, this alone does would not necessarily render him unfit for further service.  Hence, his inability to perform infantry duties does not equate to eligibility for medical discharge or retirement.

6.  The applicant has failed to show, and the provided documentation fails to show, his condition in January 2006 was anything other than "fit for duty."  There is no evidence his medical condition at the time warranted his referral to the PDES.  Nor is there any evidence of an error or injustice in his separation processing.    

7.  It appears a year passed between June 2008, when his chain of command requested his medical evaluation, and June 2009, when he was discharged from the ARNG and transferred to the USAR.  It is unclear what occurred within that year, vis-à-vis his chain of command's request for his medical evaluation.  Regardless, in June 2009, the PAARNG discharged him at the completion of his service commitment.  Given the evidence of record (or lack thereof), there is an insufficient basis to determine any error on the part of the PAARNG in his separation processing.
8.  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

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 to amend the decision of the ABCMR set forth in Docket Number AR20130002613, dated 3 September 2013.



      __________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)                                         AR20130019676



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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