BOARD DATE:	  18 December 2014 

		DOCKET NUMBER:  AR20140003763 


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 disability retirement from the Army National Guard (ARNG) due to medical issues.

2.  The applicant states, in effect:

   a.  Prior to her expiration of term of service (ETS) date, 14 December 2013, she requested a Medical Evaluation Board (MEB) because she was not allowed to extend due to medical issues which would not allow for general soldiering skills or passing of the Army Physical Fitness Test (APFT).  She was advised by her medical Noncommissioned Officer (NCO) that after reviewing her file and submitting it to the State there was nothing that would warrant an MEB but she could take all of her documents to the Department of Veterans Affairs (VA).

   b.  The issue causing her physical limitations has an approved Line of Duty (LOD) determination.  She feels after investigating and speaking with her VA case manager she should have been processed for an MEB especially since she was 2 months shy of 13 years of service.

   c.  She does not have any evidence of an injustice; however, she was not offered an MEB.  She was not aware of such an offering until it was close to her ETS date.  When she approached the medical NCO about it, he advised her that it may be too late.  Due to her numerous profiles/doctors notes she made the statement in October that she was just going to get out.  After learning an MEB was a possibility she spoke with her commander and first sergeant.  As of Tuesday, 11 February 2014, she has been in contact with Mr. Txx Bxxx of J1 Health Services for assistance.

   d.  In 2008, she decided to reenlist in the Kentucky ARNG (KYARNG).  At the time, she disclosed any medical issues she had during her physical.  During her first year in she was having difficulty passing the APFT.  She was eventually recommended for a Military Occupational Specialty (MOS)/Medical Review Board (MMRB).  Her records were sent to the National Guard Bureau (NGB) for review and she was found fit for duty in 2009.  Her enlistment was to end in August 2010 and she worked very hard to pass her APFT.  Considering she passed, she was able to extend.  

   e.  In December 2010, she interviewed for an administrative position.  The main objective of this position was to prepare the unit for mobilization.  She never had any issues with completing any job that was given to her.  During the entire time while on Active Duty Operational Support (ADOS), she was never scheduled for physical training by the Readiness NCO.  

   f.  She knew she had medical conditions that caused her some physical limitations.  Not only did she have a hard time passing the APFT, she also struggled at the qualification range due to the lack of strength in her arms.  Anything in the unsupported position was a shot in the dark because she had a hard time handling the weapon.  In April 2011, she was able to qualify.  In May 2011, she failed her APFT run the first time around.  She passed it and that was the last APFT she took during the duration of her enlistment.

   g.  At their mobilization site at Fort Hood, TX, she did not take an APFT because she had a profile for eczema.  She always had eczema issues, but it wasn't until she experienced the heat of Texas that she had continuous flare-ups. The doctors there had a hard time getting it under control.  She went through the medical processing and she was cleared to deploy.  In December 2011, while in Iraq, she suffered a severe asthma attack.  Asthma is one of the medical conditions she listed during her initial entry.  She had to spend the evening in the Troop Medical Clinic for breathing treatments and she was placed on quarters for several days.  

3.  The applicant provides copies of the following:

* DA Form 2-1 (Personnel Qualification Record – Part II)
* NGB Form 22 (Report of Separation and Record of Service)
* DD Form 2807-1 (Report of Medical History)
* Memorandum, Request for Medical Determination Review Board (MDRB) 
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* four DA Forms 3349 (Physical Profile)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* LOD determination memorandum
* Non-Duty Related (NRDR) Case File Checklist
* four DA Forms 638 (Recommendation for Award)
* Memorandum for Record – Statement of Wartime Service
* four DA Forms 2166-8 (NCO Evaluation Report)
* DD Form 2900 (Post-Deployment Health Re-Assessment (PDHRA)) 
* VA Rating Decision
* email correspondence
* post-service medical records

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Ohio ARNG (OHARNG) on 27 August 1992.  She served in MOS 71L (administrative specialist).  She was discharged at her ETS on 26 August 1999.

2.  She provided a copy of a DD Form 2807, dated 14 December 2007, wherein she reported her medical conditions of:  asthma; hammer toe surgery; chest pain in the past; anxiety with driving due to several car accidents; removal of tonsils, gallbladder, and appendix; and sexual abuse/rape at age 16.

3.  She reenlisted in the KYARNG on 15 February 2008 and she served in MOS 92A (automated logistical specialist).  

   a.  A Request for MDRB memorandum, dated 25 January 2009, wherein the company commander, 1204th Aviation Support Battalion, KYARNG, requested an MDRB for the applicant.  The company commander stated the applicant was currently able to perform only non-lifting duties in her MOS of 92A.  The applicant was currently unable to perform any portion of the APFT to standard without an authorized alternate event.  It was his recommendation that the applicant receive a permanent profile.

   b.  A DA Form 3349, dated 3 March 2009, which shows she was assigned a temporary profile of "3-3-1-1-1-1" for chronic thoracic pain restricting upper extremity.  The form does not indicate an MMRB, MEB, or PEB was needed.

   c.  A DA Form 3349, dated 11 May 2009, which shows she was assigned a permanent profile of "3-1-1-1-2-2" for Narcolepsy, post-traumatic stress disorder, and depression.  The form indicated an MEB/PEB was needed.
   
   d.  A DA Form 3349, dated 27 September 2009, which shows she was assigned a permanent profile of "3-1-1-1-2-1" for sleep disorder.  The form indicated an MMRB was needed.

   e.  A Notification of Medical Disqualification memorandum, dated 17 November 2009, wherein the Director, J1, KYARNG, stated:

		(1)  A review of her Army medical records showed she no longer met the Army medical standards for retention based on her current medical condition of narcolepsy in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 3-30h. 

		(2)  She must elect either discharge from the ARNG and as a Reserve of the Army or choose an appeal through the NDR PEB for retention ruling only.  If she chose a discharge from the ARNG she would receive an Honorable Discharge Certificate.

		(3)  If she elected an NDR related PEB retention ruling only, she must submit, upon request, current pertinent medical documentation to support her request.  She would not be required to appear before the PEB, but she did have the option to appear.  She must continue to drill and perform within the limits of her profile.  

4.  On 7 March 2010, an informal PEB convened and considered her medical conditions of sleep disorders.  The PEB found her fit for duty and noted if her condition worsened and profile became more restrictive, her case could be resubmitted for fit/unfit finding.  The PEB recommended the applicant be referred for case disposition under Reserve Component regulations.  The PEB was approved on the same date.  On 15 March 2010, she concurred with the findings and recommendation of the PEB and waived her right to a formal hearing.  

5.  She was ordered to active duty for purpose of ADOS and entered active duty on 1 December 2010.  

6.  She also provided a copy of a DA Form 3349, dated 28 July 2011, which shows she was assigned a permanent profile of "1-2-1-1-1-2" for post abdominal surgery/pain and insomnia.  The form does not indicate an MOS/Medical Retention Board (MMRB), or MEB was needed.

7.  She was released from ADOS on 23 August 2011 for the purpose of being ordered to active duty in another status.  She entered on active duty in support of Operation New Dawn on 24 August 2011.  She served in Kuwait/Iraq from 1 November 2011 through 31 July 2012.  She was released from AD on 7 September 2012 and was transferred to the KYARNG.

8.  She further provided copies of the following:

   a.  An LOD determination memorandum, dated 5 August 2012, wherein her command was provided a DA Form 2173 which approved her "In LOD (ILOD)" for right hip sacroiliitis that occurred during Operation New Dawn.

   b.  A DA Form 2173, dated 3 December 2012, wherein the PDHRA Program Officer stated she underwent a medical evaluation for back pain due to leg length difference, panic attacks, and anxiety under the PDHRA Screening Program in accordance with PDHRA Director MILPER 05-273.  The form indicated:

		(1)  She required further medical evaluation in accordance with the PDHRA Directive.

		(2)  The initial DA Form 2173 did not comprise a finding of "ILOD" and only authorized a Soldier who was eligible for and completed the PDHRA to seek appointment(s) for evaluation and diagnosis on an injury, illness, or condition claimed and identified during the PDHRA.

   c.  A DD Form 2900, dated 3 December 2012, she completed for the purpose of the PDHRA program.

   d.  A memorandum, dated, 3 December 2012, Request for Further Documentation to Determine Medical Qualification wherein the Registered Nurse Case Manager, Contractor KYARNG, G1-Health Services, advised the applicant of the following:

		(1)  A recent medical review revealed that they needed to follow-up on reported health concerns identified to determine if she met medical retention standards.

		(2)  Her current and historical medical information was needed from her primary care physician or specialist, including all VA hospital notes evaluating the condition or Therapy Notes/Anxiety.  That should include:  symptoms, diagnosis, treatment, prognosis, results of any diagnostic studies, assessment of functional capacity, and anticipated outcome.  

		(3)  The information she provided would be evaluated based on Army Regulation 40-501.  Information provided should include documentation regarding evaluation of the above issue(s) within the last year.
		(4)  If she felt that problem was service-connected (duty related) she should contact her unit administrator.

		(5)  Her suspense date was 3 January 2013.  Her unit would be made aware if the suspense was missed.  

9.  Her record is void of any evidence she concurred with the 3 January 2013 suspense for providing medical documentation to determine whether she met medical retention standards.

10.  She also provided copies of the following:

   a.  Email correspondence, dated 9 September 2013, wherein she advised her commander of the following:

		(1)  She had gone to the Rheumatologist on 13 August 2013 as scheduled.  At that time, she learned she had Fibromyalgia and the doctor wanted her to start a new medicine, but after hearing the side effects she declined.  She elected to do physical therapy first.

		(2)  At her first therapy session, the physical therapist realized she had a small leg length difference causing the pelvis to be rotated.  Prior to her examination, she had explained everything she went through overseas.   She also explained that she had drill next weekend and she had to push through it.  She knew it was going to be painful, but she couldn't bring another doctor's note to drill.  

		(3)  She was thinking positively about passing her APFT.  She still thought it was time to get out.  Her heart was heavy, but she realized if she couldn't be all that she needed to be then she must go.  Her ETS date was 14 December 2013 and she would be prepared to turn in her gear after they came from the range in October (2013).  

   b.  Email correspondence, dated 9 September 2013, wherein the applicant's commander stated she supported the applicant's decision to get out at her ETS date.  The commander advised the applicant that if she was able to meet Army standards prior to December (2013) they could always work that out.  Otherwise, she agreed that the applicant should turn in her gear during the October (2013) inactive duty training (IDT).  
   
   c.  Email correspondence, dated 9 September 2013, wherein the applicant's commander advised the applicant's unit that the applicant would ETS in December (2013) and would begin the clearing process during the October (2013) IDT.  

11.  She was discharged from the KYARNG on 14 December 2013, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35a, ETS.  She was credited with completing 5 years and 10 months of net service and a total of 12 years and 10 months of service for pay.  Her last Noncommissioned Officer Evaluation Report, for the period            1 December 2012 through 31 July 2013, shows she was successful in all areas of performing her duties, except for not taking the Army Physical Fitness Test.

12.  She further provided copies of the following:

   a.  A VA Rating Decision, dated 13 December 2012, which shows she was awarded a 10 percent service-connected disability rating for asthma.

   b.  Email correspondence, dated between 2 and 9 December 2013 and 17 January 2014, wherein the Medical Operations NCO, 1204th Aviation Support Battalion, KYARNG, advised the applicant that her LOD determination was updated to show the ruptured cyst.  After reviewing her file, Health Services stated there wasn't anything in there to warrant an MEB.  All of her information could be taken to the VA and she could file for disability through them.  She was also advised that her LOD determination for the ruptured cyst had not been approved yet.

   c.  Her pre-service and post-service medical records, dated between 4 May 2006 and 2 December 2014, which show she was diagnosed and received treatment for the following medical conditions:

* depression
* joint and back pain
* bruising
* hypertension
* headache
* narcolepsy
* asthma
* hyperglycemia
* dermatitis
* a civilian work injury 

13.  National Guard Regulation 600-200 governs procedures for enlisted personnel of the ARNG.  Paragraph 6-35a provided for separation for ETS.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets for the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating.  

15.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge 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 administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.

	a.  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

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB
* receive a permanent medical profile, P3 or P4, and are referred by an MMRB
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages – the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. 
A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while service members who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  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.

16.  Army Regulation 635-40 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.  

17.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

18.  Army Regulation 40-501, chapter 3, gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals.  Paragraph 3-29 (Spine and sacroiliac joints) of the regulation states current or history of any condition, including, but not limited to the spine or sacroiliac joints, with or without objective signs that prevent the individual from successfully following a physically active vocation in civilian life or that associated with local or referred pain to the extremities, muscular spasm, postural deformities, or limitation of motion does not meet the standard.

19.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the documentation she submitted were carefully considered. 

2.  She provided an LOD determination memorandum, dated 5 August 2012, wherein she was approved for right hip Sacroiliitis that occurred during Operation New Dawn.  The DA Form 2173, dated 3 December 2012, shows she underwent a PDHRA screening and the form indicated she required further medical evaluation in accordance with the PDHRA Directive.  

3.  She provided evidence which shows she advised her commander that she had been diagnosed with Fibromyalgia and in effect, since her ETS was 14 December 2013, it was time for her to get out.  The applicant's commander advised her that she supported her decision and agreed that she should turn in her gear at the October (2013) IDT.  She was discharged from the KYARNG on her ETS date of 14 December 2013.

4.  However, the most important criteria in determining if Soldiers are eligible for referral to the PDES is if they are unable to perform their duties.  

5.  There is no documentation or a permanent profile with recommendation for an MEB subsequent to the March 2010 PEB determination of fit for duty.  There is also no evidence and she provided none showing she was unable to perform her duties in the KYARNG as a result of any medical conditions.  She contends now that she never had any issues with completing any job that was given to her.  Her last evaluation report supports that contention.  Failure of the Army Physical Fitness Test is not a criteria for being unable to perform one’s duties.

6.  There appears to be no error or injustice in her separation process from the KYARNG.  Her contentions and the documents she submitted do not demonstrate an error or injustice in the disposition of her case.  She has provided insufficient evidence to show she is entitled to the 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.

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ABCMR Record of Proceedings (cont)                                         AR20140003763



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