IN THE CASE OF:	  

		BOARD DATE:	 25 November 2014 

		DOCKET NUMBER:  AR20140002204 


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, correction of his record to show he was medically retired after receiving an evaluation from the Army Physical Disability Evaluation System (PDES).
 
2.  The applicant states:

   a.  His injuries occurred in the line of duty (LOD) while serving in Iraq.  His unit was unaware of his injuries when he returned.  Over time, his condition worsened and he was unable to continue to serve because of his injuries.

   b.  He served honorably in Iraq and was recommended for an award.  He was unaware that "medically unfit for retention" was not the same as a medical discharge, but a way for the service to get him out cheaply and efficiently.  

   c.  He was unable to attend drills upon his return from Iraq due to his disabilities.  He received an examination and was rated 90 percent (%) disabled.  He has no money to pay back his bonus and he has paid for two surgeries for service-related conditions. 

3.  The applicant provides:

* 2 memoranda
* DA Form 3349 (Physical Profile)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Department of Veterans Affairs (VA) Rating Decision
* Page 1 of DA Form 638 (Recommendation for Award)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists the Veterans Coalition as Counsel, they did not render a request on his behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  On 10 March 2006, following prior Army National Guard (ARNG) service, the applicant enlisted in the Washington ARNG (WAARNG) in the rank/grade of specialist/E-4.

2.  Evidence shows he entered active duty on 18 August 2008.  He served in Iraq from 18 October 2008 to 22 May 2009, and on 22 July 2009, he was honorably released from active duty at the completion of his required active service.

3.  On 14 July 2010, he received a permanent physical profile for:

* post-traumatic stress disorder (PTSD)
* status post cervical fusion
* rotator cuff injury
* degenerative disk disease L3-S1 requiring narcotic pain medication
* hearing loss

4.  The DA Form 3349 notes in part, “…VA psychiatrist note indicates ‘exposure to multiple military triggers’ activate his PTSD and it is unknown if he will ever be able to tolerate drill again.’

5.  On 19 July 2010, he received an official notification for non-retention.  A medical fitness for duty evaluation on his conditions determined he was medically disqualified for continued service in the WAARNG.  He was instructed he could request further evaluation by a Non-Duty Related Physical Evaluation Board (PEB).  If no rebuttal was received with 30 days, his effective date of discharge would be 19 August 2010.  

6.  His record contains a document that shows he requested a Medical Evaluation Board (MEB) before he was to be separated from the ARNG.  The document is dated 18 August 2010.

7.  His record also contains a memorandum, dated 26 January 2011, to the Deputy Chief of Staff, Personnel, WAARNG, in which he declined to be retained for MEB/PEB processing.  He indicated he had been fully advised of the rights and advantages that may accrue to him.  He indicated that he understood that by declining further processing of his MEB/PEB, he gave up his ability to further compensation from the Active Military; however, it in no way prevented him from filing a VA claim.

8.  Orders 032-900, published by the WAARNG on 1 February 2011, discharged him from the ARNG and the Reserve of the Army effective 26 January 2011.

9.  The applicant provides:

   a.  A memorandum, dated 11 October 2007, in which his commander requested he receive a Military Occupational Specialty (MOS)/Medical Retention Board (MMRB).  The commander stated the applicant sustained a neck injury in early 2006 as a result of a physical assault.  This resulted in the applicant having cervical spine fusion with internal plating and fixation.  He continued to have complications resulting in ongoing physical limitations as a result of the assault and subsequent surgery.  

   b.  A memorandum, dated 8 May 2009, requesting the applicant be released from theater due to an injury he sustained in his back that had not responded to medical treatment in theater.

   c.  A VA Rating Decision, dated 23 September 2013, which indicates he received an overall or combined rating of 90%.

10.  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 incurred while entitled to basic pay.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  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.  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 and severance pay benefits.  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.

11.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to establish service PDES for the purpose of retiring or discharging a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for operating the Army's PDES and executes Secretary of Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

12.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement.  Chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  

   a.  Paragraph 7-3 (Physical profile serial system) - Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  
   
   (1)  Numerical designator 1 under all factors indicates that an individual is 
considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  
   
   (2)  Numerical designators 2 and 3 indicate that an individual has a 
medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  
   (3)  Numerical designator 4 indicates that an individual has one or more 
medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.
   
   b.  Paragraph 9-12 (Request for PEB evaluation) states that the Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities.  Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the U.S. Army Reserve Command Regional Support Command or the HRC Command Surgeon's office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.
   
   c.  Paragraph 10-25 (Not in the Line of Duty (NILOD)) states the Department of Defense Instruction 1332.38 (Physical Disability Evaluation) states that members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  Further explanation is available in TAPD-Policy Memorandum #4, Processing Reserve Component Non-Duty Related Cases.  This policy memorandum outlines the procedures and requirements for processing boards on Reserve Component Soldiers with non-duty related impairments that are pending separation for medical disqualification.  Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier.  The Soldier will have a completed LOD or memo that notifies him/her of non-duty related findings (NILOD).  The Soldier may not challenge the PEB findings in person.
   
   d.  Paragraph 10-25a(2) states the Military Personnel Office is responsible for notifying the Soldier, in writing, that his/her injury is NILOD and that he/she is pending separation for a medical disqualifying condition.  The notification will also advise the Soldier that he/she has the right to prepare a Non-Duty PEB packet for a fitness determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to undergo PDES processing in order to establish a medical retirement due to physical disability has been carefully considered.  

2.  The applicant appears to have sustained injuries which warranted his entry into the PDES, particularly his PTSD.  He was originally notified that he could request further evaluation by a Non-Duty Related PEB (i.e., for non-duty related conditions).  However, a document then shows he requested an MEB but he then he later changed his mind on 26 November 2011 and waived further medical evaluation, which resulted in his administrative discharge.  

3.  It is unclear exactly why he changed his mind about processing through the PDES; however, he was given the opportunity to undergo processing within the PDES and, admittedly without coercion, he elected an administrative discharge.  

4.  However, since his unit appears to have issued conflicting information (first offering a Non-Duty Related PEB) and then accepting a declination from him to under MEB/PEB processing (normally for a duty-related condition), it would be equitable to provide the applicant the opportunity to undergo an MEB and PEB.  

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.  directing the Office of The Surgeon General to contact him and arrange, via appropriate medical facilities, an MEB; and

	b.  if appropriate, by referral to an informal PEB.

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the MEB and, if necessary, the PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.  

4.  In the event a PEB finds that the individual concerned has a medically unfitting condition and it is compensable, action will be taken to correct his records to show he was appropriately separated effective 26 January 2011.  

5.  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 medical retirement or separation pay until such time as a determination is made by the MEB/PEB.



      _______ _   __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)                                         AR20140002204





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140002204



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1