IN THE CASE OF:  	  

		BOARD DATE:  18 September 2014  	  

		DOCKET NUMBER:  AR20130020221 


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, a medical retirement for a line of duty (LOD) injury.

2.  The applicant states:

	a.  he believes his 15-year retirement and transfer to the Retired Reserve was unjust because he was medically separated at the State level and he was given a medical evaluation board (MEB)/physical evaluation board (PEB).

	b.  he was on long tour orders and he has an LOD.

	c.  he should be receiving a medical disability retirement. 

3.  The applicant provides:

* Memorandum, dated 7 December 2011
* Memorandum, dated 23 November 2010, from the National Guard Bureau (NGB)
* Board for Correction of Military Records letter, dated 10 May 2012
* Army Review Boards Agency letter, dated 30 April 2012
* NGB Form 22 (Report of Separation and Record of Service)
* Medical Review Board packet
* Retirement orders
* DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Department of Veterans Affairs (VA) documentation    

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.  The applicant enlisted in the South Carolina Army National Guard (SCARNG) on 22 January 1993.  He was ordered to active duty on 28 August 2005 in support of Operation Iraqi Freedom.  He served in Kuwait/Iraq from 8 November 2005 to 26 October 2006.  

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 6 July 2006, states he was involved in an improvised explosive device (IED) attack on 28 December 2005 in Iraq.  He was conducting a route clearance patrol when a vehicle crashed into his Buffalo armored car and detonated.  He was a passenger in the vehicle and received smoke inhalation and injured his left shoulder from the explosion.  The injury was considered to have been incurred in LOD. 

4.  On 26 November 2006, he was released from active duty. 

5.  He was promoted to sergeant on 1 August 2008.

6.  On 10 December 2008, the applicant's commander provided a statement to the State Medical Duty Review Board which states:

* the applicant has sleep apnea, head trauma, and other findings
* his physical condition affects his ability to fully meet the requirements of his military occupational specialty
* he has not been and cannot be effective in his duty position with current ailments 


7.  He provides a Progress Note, dated 13 November 2008, which states:

	a.  He has had pain in the right side of his head since December 2005.

	b.  He was riding in a Buffalo armored car in Iraq which was hit by a suicide bomber.  The Buffalo remained intact, but was thrown some 15 or 20 feet off of the road.  He was slightly dazed afterward and does not know what part of his body collided with parts of the vehicle, but he began having right-sided headaches after that.  

8.  He provides a Medical Review Board Transmittal, dated 20 February 2009, which states the applicant had multiple medical problems and is unable to perform duties per his commander and health care provider.  

9.  On 20 February 2009, the Medical Review Board recommended he be discharged with a 15-year retirement based on his medical conditions.  It was determined that he was non-deployable and unable to perform his primary function.  In March 2009, he was given 30 days to appeal this decision, but he elected not to appeal the recommendation. 

10.  On an unknown date, he requested transfer to the Retired Reserve.

11.  There is no evidence the applicant was processed through the disability system.

12.  On 11 April 2009, he was honorably discharged from the SCARNG for being medically unfit for retention and he was transferred to the Retired Reserve.

13.  He provides an advisory opinion, dated 23 November 2010, from the NGB which states:

* the applicant was given 100% VA disability
* all injuries were in LOD
* upon coordination with the NGB's Surgeon's office, it was determined the applicant was properly evaluated by the Medical Review Board
* medical reviews are appropriately conducted by the component discharging the Soldier
* a further review done by the active component is not appropriate  

14.  He received his notification of eligibility for retired pay at age 60 (Selected Reserve 15-Year Letter) in January 2011.  This notification states he requested transfer to the Retired Reserve.

15.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.   The regulation provides that Medical Treatment Facility (MTF) will provide a thorough and prompt evaluation when a Soldier's condition becomes questionable in respect to physical ability to perform duty.  Unit commanders will ensure that any physical defects impacting on a Soldier's performance of duty are reflected in the Soldier's evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.  It also states that the MTF commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation.  If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a MEB.  The MEB will recommend referral to a physical evaluation board (PEB) those Soldiers who do not meet medical retention standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his 15-year retirement and transfer to the Retired Reserve was unjust and he should be receiving a medical disability retirement.

2.  The evidence shows he was honorably discharged from the SCARNG for being medically unfit for retention and he was transferred to the Retired Reserve on 11 April 2009.  

3.  The evidence shows, while on active duty, he was injured in an IED attack on 
28 December 2005 in Iraq.  

4.  Although the applicant contends he was given an MEB/PEB, evidence shows he was only evaluated by a Medical Review Board.  There is no evidence the applicant was processed through the disability system (MEB/PEB).

5.  Since it appears his medical conditions included sleep apnea, head trauma, and other findings (no other details available), and all his injuries were in LOD, an MEB is warranted.

6.  Although the available evidence does not support reinstatement on active duty, as a matter of equity, he should be provided a complete medical examination to determine if he was qualified for disability retirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X___  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  issuing him an invitational travel order for the purpose of undergoing an MEB and PEB; 

	b.  directing him to report for medical evaluation at the nearest available military MTF to his present residence; and 

	c.  providing MEB and/or PEB findings and recommendations for their further action, as necessary. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing he was medically retired at this time.



      _______ _   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)                                         AR20130020221





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ABCMR Record of Proceedings (cont)                                         AR20130020221



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