IN THE CASE OF:  	  

		BOARD DATE:  29 October 2014	  

		DOCKET NUMBER:  AR20140005365 


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, reconsideration of his earlier request for an appearance before a medical evaluation board (MEB)/physical evaluation board (PEB) and correction of his military records to show he was medically discharged.

2.  The applicant states, in effect, his separation from the Puerto Rico Army National Guard (PRARNG) was erroneous because the procedures of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 7-11(3)(d); Army Regulation 600-60 (Physical Performance Evaluation System); and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) were not followed.  He was transferred to the Retired Reserve by reason of a permanent profile by way of a fit for duty determination board that was conducted on 6 February 2001 without giving him an opportunity to appear before an MEB and PEB or the opportunity to establish his disability benefits.  The conditions for which he was declared unfit for retention were clearly incurred while on annual training from 29 May to 12 June 1999.  He was treated and diagnosed for low back strain that occurred while loading a power pallet on a truck and the pallet fell.  Neither his commander nor the PRARNG ensured a line of duty determination (LOD) was completed prior to his separation.  He should have been referred for disability processing under the presumptive LOD rule. 

3.  The applicant provides a State Surgeon Opinion and his Department of Veterans Affairs (VA) rating decision. 


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120019969, on 11 July 2013. 

2.  The applicant provides an opinion from a State surgeon and his VA rating decision.  The opinion and rating decision were not previously considered.  As such, it warrants consideration by the Board. 

3.  The applicant's available records show he was born in June 1962.  He enlisted in the PRARNG on 30 June 1980 and he held military occupational specialty 13B (Cannon Crewman).  He appears to have served through multiple extensions in the PRARNG and he attained the rank/grade of staff sergeant (SSG)/E-6. 

4.  His service medical records are not available for review with this case.  However, based on the available evidence (he provided in the previous case): 

	a.  He was ordered to annual training at Camp Shelby during the period 29 May to 12 June 1999.  A DD Form 689 (Individual Sick Slip), dated 7 June 1999, reported he injured his lower back while lifting his arms above his head.  He was examined for a complaint of a back injury.  He was ordered to quarters and restricted from doing any lifting, pushing, or pulling for 16 days.  

	b.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 June 1999, reported he was loading the ammunition truck on 7 June 1999 with power pallets when he felt a sharp pain in his lower back.  His injury was determined to be in the LOD.  The PRARNG Adjutant General subsequently approved the LOD determination as indicated on the reverse side of the form.

	c.  A DD Form 689, dated 9 June 1999, reported he complained of lower back pain and was placed on light duty for 48 hours.

	d.  On 1 July 1999, the PRARNG Administration Noncommissioned Officer notified the troop medical clinic at Fort Buchanan, PR, via letter that the applicant was authorized necessary treatment or hospitalization for his lower back pain.  All bills for his treatment were to be referred to the PRARNG.

	e.  Standard Forms 600 (Chronological Record of Medical Care), dated 8 July, 2 September, and 1 November 1999, reported the applicant complained of having lower back pain and continued to have lower back pain. 
	f.  A DA Form 3349 (Physical Profile), dated 1 November 1999, shows he was given a temporary physical profile of "1-1-2-1-1-1."  His assignment limitations consisted of no sit-ups and running at his own pace and distance.

	g.  On 2 July 2000, the PRARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

	h.  A memorandum, issued by the PRARNG Health System Specialist on 6 February 2000, indicating that a medical duty review board convened on 20 January 2000 and considered his medical fitness for retention in the ARNG.  The review board diagnosed him with a herniation of nucleus pulposus in L4-L5.  He was not able to comply with all of the duties of his military occupational specialty.  He had completed 20 years of qualifying service for retired pay.  The medical review board recommended a permanent physical profile rating of "4" in his lower extremities with an assignment limitation of "unfit for service."  He was "unfit for retention in the PRARNG" in accordance with paragraph 3-39e of Army Regulation 40-501.

   i.  An ARNG Annual Medical Certificate, dated 20 January 2001, indicates that a medical duty review board considered his lower back pain and recommended his separation.  The form indicates he had a permanent physical profile rating of "4" in his lower extremities.  The form was signed by a medical member, a military personnel officer, and the applicant.

5.  He was honorably discharged from the ARNG on 1 March 2001 in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), for being medically unfit for retention.  His NGB Form 22 (Report of Separation and Record of Service) shows he was separated from the PRARNG and transferred to the Retired Reserve.  He completed 20 years, 8 months, and 2 days of ARNG service.

6.  On 15 November 2001, the VA awarded him service connected disability compensation for ventral herniated nucleus pulposus L4-L5 with lumbar radiculopathy L5 right (claimed as back and leg condition) at the rate of
60 percent effective 31 January 2001. 

7.  In a memorandum, dated 17 October 2012, previously provided by the applicant, the Personnel Officer (G-1), PRARNG, stated that after reviewing and conducting a detailed research of the applicant's case, an agreement was reached.  The G-1 recommended approval of his request and made the following statements/recommendations:

	a.  The evidence clearly shows the applicant received complex medical treatment for lower back injury incurred while participating in annual training at Camp Shelby.  An informal LOD investigation was completed by the PRARNG with a "Yes" determination.  A medical duty review board determined he was unfit for retention and issued him a permanent physical profile rating of "L4."

	b.  In accordance with Army Regulation 635-40, his command was required to provide him with prompt disability processing to determine if his military service was to be terminated due to a service-connected disability.  There is no evidence showing he was properly counseled about his rights to an MEB/PEB.  His commander had the responsibility to ensure he received this counseling.

	c.  The G-1 opined that his request should be approved as a matter of justice. However, because he was no longer a member of the PRARNG, the PRARNG no longer had the authority to reinstate him or to change his current Retired Reserve status to a retirement based on disability. The G-1 recommended that the Office of the Surgeon General authorize a physical evaluation of the applicant and issuance of invitational travel orders should a formal PEB become necessary.

8.  On 11 July 2013, this Board reviewed his case but determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.  As a result, the Board denied his request. 

9.  He provides an opinion from a State surgeon who states: 

	a.  The physician's documentation of physical findings shows low back pain and lumbar radiculopathy.  No functional activities limitations were described in medical record available for review and the applicant was not referred to the Physical Disability Evaluation System (PDES).  Currently, determination of physical fitness could be done with current complaint, but he (the State surgeon) is unable to perform a retrospective determination. 

	b.  He concurs with the Board's previous determination that the applicant's medical duty review board does not provide proper documentation that identified a disqualifying medical condition requiring an MEB, but the San Juan VA Compensation and Pension Exam Report describes herniation of nucleus pulposus with more than mild symptoms that suggest interference with the satisfactory performance of duty.  The timeframe from diagnosis of the condition to the medical review board evaluation (did) not allow enough time for appropriate treatment or remedial measures, prior to final determination.  His case could be sent to an MEB for final determination in this case.

10.  NGR 600-200 prescribes the criteria, policies, processes, procedures and responsibilities to classify, assign, utilize, and transfer within and between states, enlisted Soldiers of the ARNG.  Chapter 8 lists reasons, applicability, codes, and board requirements for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both.  Paragraph 6-26(j) states Soldiers may be discharged from State ARNG and/or Reserve of the Army for being medically unfit for retention per Army Regulation 40-501.

11.  Army Regulation 635-40 establishes the 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 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 (processing for separation or retirement from active duty) 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 they 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.

12.  Department of Defense (DOD) Directive 1332.18 covers separations or retirement for physical disability.  Paragraph 3.3 states the sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank, or rating because of disease or injury.  Any member of the Ready Reserve who is pending separation for a non-duty related impairment or condition shall be afforded the opportunity to enter the PDES for a determination of fitness.  If determined fit, the Secretary concerned may deem the member medically qualified for retention in the Ready Reserve in the specialty for which he was found fit.

13.  DOD Instruction 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for service members with service-incurred or service aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.  Paragraph E2.P2.3 states members of the Ready Reserve with non-duty related impairments and who are otherwise eligible will be referred into the PDES upon the request of the member or when directed under service regulations.  Referral will be solely for a determination of fitness for duty.

14.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.

15.  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 higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, 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.

16.  The National Institutes of Health website medline.plus.gov states disk herniation is most often the result of a gradual, aging-related wear and tear called disk degeneration.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that while the applicant was on annual training in June 1999, he hurt/injured his lower back while loading pallets onto a truck.  His injury was described at the time as being a lower back pain.  The subsequent LOD determination of "Yes" was based on this same lower back pain.  In November 2000, the medical duty review board determined the applicant's unfitness for retention in the PRARNG was due to a "herniation of nucleus pulposus L4-L5." 

2.  There is insufficient evidence showing the applicant's injury in June 1999 resulting in his lower back pain was the cause of his medical diagnosis in November 2000 by the medical duty review board.  Furthermore, there is insufficient evidence showing when or under what circumstances his diagnosed herniation occurred.  The medical review board did not conclude that his herniation was the result of or connected to his military service.  In view of the above, his request should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120019969, dated 11 July 2013.



      ___________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)                                         AR20140005365



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ABCMR Record of Proceedings (cont)                                         AR20140005365



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