BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140001714 


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 his medical records go before a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB).

2.  The applicant states he was not offered the opportunity to go before the MEB when he was discharged from the Massachusetts Army National Guard (MAARNG) in 2005.  Furthermore, he was never counseled regarding his option to have his medical records reviewed by an MEB/PEB.  He recently discovered he should have been afforded the opportunity to have his medical records reviewed by an MEB/PEB.

3.  The applicant provides:

* timeline of events
* four letters, dated 5 October 2013, 22 November 2013, 16 December 2013, and 15 January 2014
* memorandum, dated 10 January 2014
* 27 pages of various personnel records including orders, memoranda, his
DD Form 214 (Certificate of Release or Discharge from Active Duty), and National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* 74 pages of military medical records
* 12 pages of civilian medical records



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.  He enlisted in the MAARNG on 18 June 1982 and served through a series of extensions.  He held military occupational specialty (MOS) 92G (Food Service) and attained the rank/grade of sergeant first class (SFC)/E-7.

3.  His record contains a DD Form 214 showing he entered active duty on 
3 February 2003 and served in Kuwait and Iraq. 

4.  He provided a series of military medical records ranging in date from 
9 September 2003 to 11 April 2004 which show he was initially seen/treated for a sinus infection on 9 September 2003.  During this period, he complained of and suffered from nasal obstruction, facial/pain, headaches, and purulent rhinorrhea (nasal discharge that is thick, opaque, and colored).  He was treated with multiple prolonged courses of various oral antibiotics and steroids without clinical response.

5.  His record shows he was issued a "Notification of Eligibility for Retired Pay at Age 60 (20-year letter)," dated 28 October 2003.  This letter informed him he had completed the required years of service and would be eligible for retired pay upon application at age 60.

6.  His DD Form 214 shows he was honorably released from active duty for completion of active service on 23 May 2004.  This form also shows he served in Kuwait and Iraq from 18 April 2003 to 18 April 2004.  

7.  His record contains a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the rating period of February 2004 through September 2004.  His NCOER shows he passed the Army Physical Fitness Test 
(APFT) and was rated as among the best by his rater and successful and superior by his senior rater.
8.  He provided a series of military and civilian medical records ranging in date from 19 April 2004 to 2 June 2005.  However, these documents were summarized in a letter issued by Commander (CDR) RJM, Medical Corps, U.S. Navy, Reserve, on 2 June 2005, wherein he stated:

	a.  In May 2004, the applicant received a computerized tomography (CT scan) that demonstrated diffused mucous membrane thickening, opacification, and air-fluid levels in all of the sinuses.  

	b.  On 13 May 2004, he underwent nasal septopasty and endoscopic sinus surgery with polypectomy without complication.  Intra-operative cultures were positive for a coagulase negative staphylococcus species.

	c.  In early June 2004, he developed double vision and persistent right periorbital pain.  He was referred to ophthalmology for an evaluation.  He was referred for a magnetic resonance imaging (MRI).  The MRI of his brain demonstrated persistent sinus disease with possible expansion of the right sphenoid sinus at the apex of the right orbit.  A CT scan of the sinuses demonstrated mild post-operative improvement in pansinusitis.  He was placed on a 4-week course of oral antibiotics and a 10-day course of oral prednisone with a gradual improvement of his symptoms.

	d.  He received a post-treatment sinus CT scan on 1 August 2004, which demonstrated marked improvement in the sphenoid mucoperiosteal thickening.

	e.  In early November 2004, he experienced a recurrence of the right periorbital/frontal pain and subsequent vision alteration.  A flexible nasopharyngoscopy demonstrated no visible purulence or pathology.  A repeat CT scan of the sinuses demonstrated diffuse mucoperiosteal thickening including the right sepheniodsinus without evidence of orbital extension.  He was placed back on oral antibiotics and resumed sinus saline irrigation.  Nevertheless, he continued to experience fluctuating sinus and ocular symptoms.  He was referred to both Otolaryngology and Ophthalmology in Boston, MA, for consideration of further medical versus surgical therapy.

	f.  He received a CT scan on 11 March 2005 which demonstrated mild mucoperiosteal thickening in the frontal/ethmoid/sephenoid sinuses with diffuse ethmoid sinus opacification.  

	g.  As of 2 June 2005, no additional surgical therapy had been performed.  However, his physician believed the applicant continued to experience symptoms related to chronic sinusitis and was concerned that his vision symptoms might be somewhat attributable to continued involvement of the sphenoid sinus or from a decompensating esotropia.  His physician noted that due to the persistence of his symptoms, his long-term prognosis was uncertain.  His doctor also stated he might benefit from revision endoscopic surgery with attention directed at the sphenoid air cells and that he might require surgical correction of his fluctuating esotropia if his symptoms continued.  His physician concluded by stating there were currently no specific limitations to preclude him from participating in the APFT; however, transient exacerbation of his sinus symptoms might preclude some demanding physical activities.  

9.  He provided a memorandum, dated 18 March 2005, entitled "Request for Documentation, Medical Profiling and Record Review (MDRB)" informing him that prior to the Medical Command conducting an MDRB, additional medical documentation was required.  This medical documentation must be obtained from his private physicians at no expense to the government no later than 
18 June 2005.  The documentation must include a diagnosis with a specific medical condition and full clinical history and prognosis, treatments, residual impairments, specific limitations regarding the APFT, and whether or not he was at his medical end point.  (It should be noted that the letter issued by CDR RJM, Medical Corps, U.S. Navy, Reserve on 2 June 2005, which summarized his medical records and addressed his conditions, appears to be the response to the request for additional information.)

10.  He provided a memorandum, issued by the MAARNG, on 1 April 2005.  This memorandum shows he requested a recall to active duty to receive medical treatment for the medical condition he incurred while deployed.  In his request for Medical Retention Processing 2 (MRP2) he acknowledged that upon completion of his treatment/board action he would be released from active duty/discharged/retired.

11.  He provided a DA Form 4187 (Personnel Action), dated 4 April 2005, wherein he requested MRP2 processing to complete his medical treatment and care.  Though his commander recommended disapproval, a memorandum was forwarded to the J1 requesting a review/approval of his MRP2 packet.

12.  He provided a memorandum, issued by the MAARNG Medical Command, on 16 May 2005, showing the State surgeon recommended he be placed on MRP2 status for continued treatment.

13.  His NGB Form 22 shows he was honorably discharged from the MAARNG, in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1) because he was medically unfit for retention.

14.  He provided a memorandum issued by the U.S. Army Human Resources Command (HRC), on 31 May 2005, which states the request to place the applicant on MRP2 orders was reviewed but not favorably considered.

15.  He provided two memoranda, issued by the MAARNG, on 7 October 2005:

	a. The first memoranda included the recommendation of the MDRB.  The State Surgeon and the MDRB disqualified him from continued membership in the MAARNG.

	b.  The second memorandum states the MDRB recommended the applicant receive a medical discharge.  The applicant’s commander was required to provide additional information to the State surgeon to review to include:

* MOS duty and specific job duties
* specific limitations if any, in regard to MOS duties
* recommendations for retaining the applicant in the MAARNG
* whether or not the applicant wanted to appeal the decision

	c.  There is no indication that the applicant appealed the decision.

16.  Orders Number 321-4, issued by the MAARNG on 17 November 2005 reassigned him to the Retired Reserve effective 17 June 2005 and directed he receive an Honorable Discharge Certificate.  National Guard Regulation 600-200, paragraph 8-26j(1) was listed as the authority for these orders.

17.  He provided a memorandum issued by the MAARNG on 10 January 2014, showing his request for an MEB was denied.  The MAARNG stated that in reading his correspondence, it appeared he may have been eligible for entry into the PDES in 2005; however, there was no provision for the MAARNG to send his records through the Physical Disability Evaluation System (PDES) because he was in the Retired Reserve and no longer held an active status in the MAARNG. 

18.  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.  Under the 
laws governing the PDES, Soldiers who sustain or aggravate physically unfitting 
disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

19.  National Guard Regulation 600-200 paragraph 8-26, governs the discharge from the State Army National Guard and/or as a Reserve of the Army.  Subparagraph 8-26j(1), in effect at the time, stated Soldiers are discharged from the State ARNG or from the Reserve of the Army when a Soldier is determined to be medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  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 and National Guard Regulation 40-501.

20.  Army Regulation 40-501, chapter 10, sets basic policies, standards, and procedures for medical examinations and physical standards for the ARNG.  For the ARNG, chapter 3 is interpreted as the standard for retention.  Soldiers not meeting the standards of chapter 3 are considered to not meet retention standards and will require review by the State Surgeon and referral to the MDRB, in accordance with this regulation, in order to be retained in the Army National Guard of the United States (ARNGUS).

21.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNGUS and the USAR.  It applies to all enlisted Soldiers of the ARNGUS and the USAR who are not performing fulltime active duty in the U.S. Army.  The policy for the discharge of Soldiers medically unfit for retention, in effect at the time, stated, in part, discharge would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness under the provisions of Army Regulation 40-501.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should go before an MEB/PEB because he was not informed of or counseled about on the potential for PDES processing.

2.  The available evidence does not contain and he has not provided a physical profile or other medical documentation to show he was unable to perform the duties of his MOS or rank.  In fact, his final NCOER for the rating period ending on September 2004 shows he passed the APFT and was rated as among the best by his rater and successful and superior by his senior rater.  This indicates he was able to successfully fulfill the duties and obligations of his rank and MOS in September 2004.  Furthermore, the information his physician, a military doctor, provided to the MDRB stated he did not have any specific limitations to preclude him from participating in the APFT, but that the exacerbation of his sinus symptoms might preclude some demanding physical activities.  This does not indicate he was unable to perform the duties of his MOS or grade.  
3.  It is not known what medical condition the MAARNG looked at to determine he was medically unfit for retention, only a year later.  When the MDRB and the State Medical Command/State Surgeon made their decision he was given the opportunity, in writing to contest/appeal the decision.  However, he did not contest/appeal the MDRB’s decision even though he was given the opportunity.

4.  Notwithstanding the letter from his State, it is presumed that what his unit, MDRB, and the State Medical Command/State Surgeon did in his case was correct and he was properly discharged for being medically unfit for retention.  Especially since he had been issued a 20-year letter in 2003, and was fully eligible to retire.  

5.  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 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)                                         AR20140001714





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ABCMR Record of Proceedings (cont)                                         AR20140001714



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