BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20130020596 


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, referral to the Physical Disability Evaluation System (PDES). 

2.  He states he was referred to a medical board for high blood pressure, diverticular disease, and anxiety and depression.  The conditions were duty-related due to his service in Iraq.  The medical board recommended his discharge.  He was not properly counseled on his options and right to referral to a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) for the purpose of a disability benefits determination with regard to medical conditions acquired while serving on active duty under Title 10, U.S. Code (USC), in support of Operation Iraqi Freedom (OIF).

3.  He provides:

* memorandum, subject:  PRARNG (Puerto Rico Army National Guard) Advisory Opinion Pertaining to ABCMR (Army Board for Correction of Military Records) Case [Applicant]
* orders
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* PRARNG Fit For Duty Determination Board (FFDDB) Acknowledge Statement
* DA Forms 3349 (Physical Profile)
* DA Form 7349 (Initial Medical Review - Annual Medical Certificate)
* medical records
* ARNG Retirement Points History Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* documents related to line of duty determinations
* Department of Veterans Affairs (VA) Rating Decisions and related documents
* self-authored statements
* memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter)

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 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's record shows he was born on 4 October 1950.  

3.  With prior service in the Regular Army, on 28 May 1986 he enlisted in the PRARNG.  He was discharged from the PRARNG on 14 November 1991 and transferred to the U.S. Army Reserve.  On 7 November 1994, he enlisted in the PRARNG, where he served until he was transferred to the Retired Reserve on 10 April 2006.  

4.  A Personnel Qualification Record - Enlisted, prepared on 15 October 2004, shows his physical profile serial as "111111."  

5.  On 29 October 2004, Puerto Rico National Guard Element, Joint Forces Headquarters (JFH), San Juan, PR, issued Orders 206-080 ordering the applicant to active duty as a member of the 1065th Medical Company (Area Support) with a reporting date of 9 November 2004 for a period not to exceed 545 days for the purpose of deployment in support of OIF.  His record shows that he reported as ordered and that he was serving in military occupational specialty (MOS) 91W (Health Care Specialist – later converted to MOS 68W) at the time. 

6.  On 1 November 2004, he was issued a Twenty-Year Letter notifying him he had completed the required years of service to be eligible for retired pay upon application at age 60.

7.  He served in Iraq from 14 January to 12 November 2005.  

8.  He provides medical records showing:

	a.  He was seen by a physician on 23 March 2005 for a complaint of a headache.  The physician noted he had a 5-year history of hypertension treated with hydrochlorothiazide.  The physician also noted tachycardia and a low-grade temperature.  He was told, in part, to have his blood pressure rechecked in 5 days.  

	b.  His blood pressure was consistently high each time it was measured from 24 March to 13 April 2005.  

	c.  On 13 April 2005, a physician assessed uncontrolled hypertension.  The applicant's treatment plan was adjustment of his medication, continued blood pressure monitoring, and discussing with his first sergeant a change of duty from an ambulance platoon to a treatment platoon for 1 week.

	d.  On 16 April 2005, a physician recommended the applicant move to a "passive" working environment.

9.  A DA Form 3349, dated 16 April 2005, shows he was given a temporary profile that was to expire on 20 April 2005.  The form stated he was not to perform any resistance exercise until his blood pressure was controlled.  

10.  A DA Form 2173, dated 11 June 2005, shows his previously existing arterial hypertension had been exacerbated by stress due to environmental problems and work pressure.  His condition was found to have been incurred in the line of duty.  

11.  The medical records he has provided show his blood pressure remained high through September 2005.  

12.  His Noncommissioned Officer Evaluation Report (NCOER) for the period ending October 2005 shows his rater stated that the applicant's "mental toughness enabled him to cope with personal health without affecting the unit [sic] overall mission."  He received ratings of "success" and "fully capable" from his rater and ratings of "successful" and "superior" from his senior rater.

13.  A DD Form 2697 (Report of Medical Assessment), dated 13 November 2005, shows it was completed for the purpose of separation.

	a.  He reported that:

* his overall health was worse compared to his last medical assessment
* he had missed duty for longer than 3 days due to high blood pressure
* he had been seen and/or treated by a health care provider for high blood pressure and stress
* he was concerned about his health due to anxiety (always shaking)
* he intended to seek VA disability for high blood pressure

	b.  The health care provider's comments on the form list hypertension, stress, and diverticulitis.  The applicant was referred for further evaluation.  

14.  The medical records he has provided show he was seen at behavioral health on 16 November 2005.  He was diagnosed with adjustment disorder and cleared for discharge from active duty.  The examining provider recommended he follow up with the VA.

15.  A DA Form 2173, dated 17 November 2005, shows his previously-controlled hypertension was found to have been exacerbated by stress from working conditions and to have been incurred in the line of duty.

16.  On 27 November 2005 he was released him from active duty and returned to the PRARNG.  

17.  On 20 March 2006, the VA granted him service-connected disability ratings effective 28 November 2005 for the following conditions:

* hypertensive heart disease, hypertension – 20 percent (%)
* status post diverticulitis, colon polyps (claimed as diverticulitis disease) – 10%
* anxiety disorder, not otherwise specified, with depression – 50%

18.  He further provides:

	a.  a Standard Form 600 (Chronological Record of Medical Care), dated 9 April 2006, showing a medical provider recommended his separation due to multiple medical problems including unstable hypertension, diverticular disease, and anxiety disorder with depression requiring medication for stabilization; 

	b.  a partially legible copy of a DA Form 3349, dated 9 April 2006, showing – 
* he was given a physical profile based on his high blood pressure, diverticular disease, and anxiety disorder with depression
* he was given a permanent rating of "4" for physical profile serial factor "P"

	c.  a PRARNG FFDDB Acknowledge Statement, dated 9 April 2006, showing he acknowledged – 

* he had been advised of his permanent physical profile
* based on his P-4 profile he would be retired because he had served more than 20 years
* he would not attend unit drills and annual training effective upon his discharge on 9 April 2006

19.  On 17 November 2006, PRNG Element, JFH, San Juan, PR, issued Orders 321-514 discharging him from the ARNG and assigning him to the Retired Reserve effective 10 April 2006.  The orders show the authority for his discharge was Implementation Policy National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-39a, dated 1 October 2006.

20.  Review of the available records does not show that his diastolic blood pressure (the number usually listed second in a blood pressure reading) was consistently more than 110 mmHg.

21.  He provides a memorandum, subject:  PRARNG Advisory Opinion Pertaining to ABCMR Case [Applicant], dated 15 October 2013, from the Deputy G-1, PRARNG.  The Deputy G-1 recommends approval of the applicant's request to be referred to the PDES.  He states:

	a.   The applicant had multiple medical conditions (hypertension, diverticulitis, and anxiety disorder) that were diagnosed while he was on active duty in support of OIF during the period 9 November 2004 to 27 November 2005, and he was granted VA compensation for these conditions within 1 year of his release from active duty.  

	b.  Prior to the applicant's separation, his chain of command and PRARNG medical authorities failed to ensure that he was properly referred to the PDES in accordance with the governing regulations.  It was his commander's responsibility to ensure he was counseled concerning his rights, and there is no evidence that he was properly counseled following the recommendation issued by the FFDDB.  

	c.  PRARNG recommends correction of the applicant's PRARNG and Department of the Army records by – 

		(1) directing the Office of The Surgeon General (OTSG) to contact the applicant and arrange a physical evaluation; 

		(2) if appropriate, referring him to an MEB and a PEB; 

		(3) if necessary, using appropriate invitational travel orders to accomplish the MEB/PEB; and

		(4) should a determination be made that the applicant should have been separated through the PDES, that the ABCMR's Record of Proceedings serve as the authority to void his administrative discharge and to issue the appropriate disability separation retroactive to his original discharge date with entitlement to all back pay and allowances less any entitlements already received.  

22.  National Guard Regulation 600-200, chapter 6 (formerly chapter 8), sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNG of the United States (ARNGUS).

	a.  Paragraph 6-35l states to refer to Army Regulation 135-178 (Enlisted Administrative Separations), chapter 15, for discharge on the basis of a Soldier being medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness).  Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501.  Commanders who do not recommend retention will request the Soldier's discharge.  When a medical condition was incurred in line of duty, the procedures of Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) will apply.  Discharge will not be ordered while the case is pending final disposition.  

	b.  Paragraph 6-39 (formerly paragraph 8-39) lists the criteria for eligibility for retirement, discharge, and transfer.  It states Soldiers who are eligible for retired pay for non-regular service may request discharge from the state and transfer to the USAR for assignment to the Retired Reserve, if not immediately eligible for retired pay, or placement on the Retired List with retired pay.  This may be done without regard to a Soldier's expiration of term of service date provided the Soldier has no remaining service obligations and is not under a call or order to involuntary active service.

23.  Army Regulation 135-178, chapter 15, states:

	a.  Discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is:

		(1)  Granted a waiver under Army Regulation 40-501, as applicable.

		(2)  Determined fit for duty under a non-duty related PEB fitness determination.

		(3)  Eligible for transfer to the Retired Reserve.

	b.  A Soldier who does not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training, will be processed as specified in Army Regulation 
635-40 if otherwise qualified.

24.  Army Regulation 600-8-4 prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  It provides standards and considerations used in determining LOD status.  It states a doctor, during examination and treatment of a Soldier, usually determines if a condition existed prior to service (EPTS) and, if it did, annotates the Soldier’s medical records.  If a line of duty determination is required, information from the medical records will be used to support a determination that an EPTS condition was or was not aggravated by military service.  If an EPTS condition was aggravated by military service, the determination will be in the line of duty.

25.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and 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.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several LOD criteria to be eligible to receive retirement or severance pay benefits.  One of the criteria is that the disability must have incurred or been aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  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.  Separation by reason of disability requires processing through the PDES.

	a.  Paragraph 3-1 states the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

	b.  Paragraph 3-2b 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 service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that –

		(1)  The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

		(2)  An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.

26.  Army Regulation 40-501 governs medical fitness standards for retention and separation, including retirement.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) states:

	a.  Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB.  Exceptions include ARNG/ARNGUS Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period.  

	b.  Physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification.  Physicians should not defer initiating the MEB until the Soldier is being processed for non-disability retirement.  Many of the conditions listed in this chapter fall below retention standards only if the condition has precluded or prevented successful performance of duty.  In those cases when it is clear the condition is long standing and has not prevented the Soldier from reaching retirement, then the Soldier meets the standard and an MEB is not required.

	c.  Chapter 3 does not list hypertension as a reason for referral to an MEB unless uncontrolled hypertension is the result of an endocrine or metabolic disorder, is related to pyelonephritis or pyelitis (conditions of the genitourinary system), or if the Soldier is diagnosed with hypertensive cardiovascular disease and hypertensive vascular disease with a diastolic pressure consistently more than 110 mmHg following an adequate period of therapy in an ambulatory status.

	d.  Chapter 3 does not list diverticulitis as a reason for referral to an MEB.

	e.  Chapter 3 lists anxiety disorders as a reason for referral to an MEB if there is:

		(1) Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or

		(2) Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or

		(3) Persistence or recurrence of symptoms resulting in interference with effective military performance.

	f.  Chapter 10 provides guidance on the basic policies, standards, and procedures for medical examinations and physical standards for ARNG Soldiers. Paragraph 10-25 relates to ARNG Soldiers pending separation for failing to meet medical retention standards.  Sub-paragraph 10-25b states that Soldiers pending separation for in the line of duty injuries or illnesses will be processed in accordance with Army Regulation 40–400 (Patient Administration) and Army Regulation 635-40.

27.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating is not evidence that the Army failed to comply with the standards for referral to the PDES.  The VA does not have the authority or responsibility for determining physical fitness for military service.  An Army disability rating is to compensate the individual for the loss of a military career.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge or release from active duty, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for referral to the PDES.  

2.  A basic requirement for referral to an MEB is that a Soldier has a medical condition that has precluded or prevented successful performance of duty.  His NCOER for the period ending October 2005 clearly shows he was successfully performing his duties.  Although the record shows he had a long-standing medical condition (hypertension), it appears that he was able to perform his duties in spite of this condition.  Of note is the fact that the available records do not show when he was diagnosed with diverticulitis or anxiety disorder or when he began taking medication for anxiety disorder.  Clearly, these additional conditions, if they were present while he was serving on active duty, did not affect his ability to perform his duties when he was serving on active duty.  

3.  Although his medical conditions may have formed a basis to recommend his discharge from the ARNG based on failure to meet retention standards, under the provisions of Army Regulation 40-501, none of the conditions would have warranted referral to the PDES.  The available records show no additional conditions incurred while entitled to basic pay that would have warranted referral to the PDES under the provisions of Army Regulation 40-501.

4.  The fact that the applicant received service-connected disability ratings for the conditions addressed above approximately 4 months after his release from active duty in 2005 is not evidence that supports referring him to the PDES.  The VA awards service-connected disability ratings to compensate the individual for loss of civilian employability.  His VA service-connected disability ratings do not overcome the fact that he was able to perform his duties satisfactorily while he was on active duty.  

5.  As an ARNG Soldier who was qualified to receive retired pay at age 60 due to his more than 20 years of qualifying service, he was eligible to request transfer to the Retired Reserve once it was determined that he did not meet retention standards.  The record shows he did so.  Notwithstanding the contentions to the contrary presented by the applicant and the Deputy G-1, PRARNG, absent evidence of a medical condition incurred while entitled to basic pay that prevented him from performing his duties there is no evidence of error or injustice with regard to the applicant's discharge from the PRARNG and transfer to the Retired Reserve.  
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)                                         AR20130020596





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ABCMR Record of Proceedings (cont)                                         AR20130020596



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