IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140006667 


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, that his separation from the Puerto Rico Army National Guard (PRARNG) be revoked and his case be considered through the Physical Disability Evaluation System (PDES).

2.  He states his separation from the PRARNG was erroneous due to the fact that regulatory procedures were not followed.  He adds that he was placed on the retired Reserve list by reason of a permanent profile after a Fit for Duty Determination Board which was conducted on 2 July 2005.  He offers that he was not afforded the opportunity to elect referral through the PDES.  He states his condition was declared unfit for retention while he was serving on active duty (AD).  He explains that he was diagnosed and treated for lumbosacral sprain and a right shoulder injury that should have been considered as "In the Line of Duty (LOD)."

3.  He provides:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Social Security Administration documents
* Medical Record documents
* Department of Veterans Affairs (VA) Rating Decisions, dated 4 March 2005 and 3 May 2001
* Orders 156-54, dated 15 August 2005
* Orders 224-014, dated 12 August 2003
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 4 December 2000 and 12 March 2004
* Three DA Forms 2823 (Sworn Statement) Applicant's Sworn Statement 
* Fit for Duty Determination acknowledgement, dated 11 July 2005

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.  After having prior service in the U.S. Army Reserve (USAR), on 26 March 1991 the applicant enlisted in the PRARNG.  He was ordered to AD in support of Operation Joint Guard and served in Macedonia/Kosovo from 28 May to 
6 December 2000 and in Iraq from 1 May 2003 to 30 April 2004.

3.  The applicant's record is void of a LOD determination/investigation.  However, he provided two DA Forms 2173, dated 4 December 2000 and 12 March 2004, that stated:

   a.  On 2 December 2000, while deployed at Camp Bondsteel, Kosovo, the applicant was driving a High Mobility Multipurpose Wheeled Vehicle (HUMVEE) when he had to make a sudden stop due to the vehicle in front of him stopping.  He hit the front vehicle, causing him to jerk forward.  He felt pain and pressure around his neck and lower back.  The applicant was referred to the Camp Bondsteel Hospital for treatment.  The injury was considered to have been in the LOD.
   
	b.  On 18 June 2003, the applicant was wearing full battle gear and jumped off the HUMVEE and felt a sharp pain.  The pain was constant and he was placed on medication and given a 7-day profile.  He was limited to lifting no more than 30 pounds.  The injury was listed in the LOD.



4.  Sworn statements from the applicant reiterate the cause of his injury on 
2 December 2000 and 18 June 2003.  Additionally, he provided a sworn statement from a comrade that confirms his injury on “19” (i.e., 18) June 2003.   The author of the sworn statement said he was a part of the team and they dismounted from the rear of the vehicle.  After the applicant jumped out of the vehicle, he informed them that he had a sharp pain in his shoulder and back.

5.  On 3 May 2001, the VA granted the applicant a 10 percent (%) disability rating for service connection dorsal par vertebral myositis claimed as back, neck, and waist conditions.

6.  Medical records show the applicant was seen on 20 June 2003, for lower back pain.  The medical notes stated that the applicant jumped off a HUMVEE in full battle gear with weapon and ammunition.  After his jump, he stated he felt a sharp pain.  He was also seen on the following dates for the following conditions associated with his back/shoulder injury:

* 7 November 2003, lower back pain, 14-day profile, no running, jumping, physical training (PT), or tactical gear
* 15 November 2003, appointment with chiropractor
* 25 November 2003, profile rescinded, return to duty
* 27 November 2003, back pain mid-right side thoracic area
* 14 April 2004, injury right shin, right hip, and shoulder, no PT for 5 days

7.  On 4 March 2005, the VA granted the applicant a 10% disability rating for the below listed conditions for a total disability rating of 30%:

* Service connected for impingement syndrome, right shoulder claimed as bones and joints pain
* Chronic active cervical strain-myositis
* Chronic active lumbosacral strain-myositis

8.  On 5 April 2005, the applicant was notified of his eligibility for retired pay at age 60 (20-year letter).

9.  On 2 July 2005, the applicant received a permanent profile for chronic back pain and right shoulder and right elbow pain.  The DA Form 2808 (Physical Profile) shows a Physical Profile Series (PULHES) of "144111" indicating a limitation in upper and lower extremities.

10.  The applicant provided a PRARNG Fit for Duty Determination Board acknowledgement statement.  The purpose of this statement was listed as "To classifying individuals according to functional abilities and notify Soldier of further administrative action after profile board determination."  The document stated that he received a permanent profile and in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 7, he will be discharged effective 
11 July 2005, due to "attached" medical condition.  However, no medical documents were attached. 

11.  On 11 July 2005, the applicant was honorably transferred from the ARNG and reassigned to the USAR Control Group (Retired).  The authority and reason for his transfer was listed as paragraph 8-26j(1) National Guard Regulation 600-200 (Enlisted Personnel Management), medically unfit for retention.

12.  In connection with the processing of this case, on 7 April 2014, an advisory opinion was obtained from the G-1, Adjutant General's Office, PRARNG who recommended approval of the applicant's request.  The advisory official stated:
   
a.  The evidence clearly shows the applicant received complex medical treatment while on AD for the condition for which he was declared "Unfit."  He further stated that the evidence shows an Informal LOD was initiated and completed at Camp Baker Medical Facility, Iraq.  However, the applicant's chain of command failed to ensure that he was properly referred to the PDES as per AR 635-40 and Department of Defense Directive DODD) 1332.18 and Department of Defense Instruction (DODI) 1332.38.

   b.  Also, there is no evidence that shows he was properly counseled, as to his rights to referral to a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) for the purpose of disability benefits determination as a result of his medical condition developed while on AD.  It was the commander's responsibility to ensure proper counseling was issued concerning his rights prior to a follow on medical recommendation issued by the Fit for Duty Determination board.

   c.  The PRARNG recommends his records be correct by:

* Directing the Office of The Surgeon General (OTSG) to contact the applicant and arrange a physical evaluation
* If appropriate refer the him to an MEB/PEB
* Direct the OTSG to use appropriate invitational travel orders to accomplish the MEB/PEB if necessary

13.  Army Regulation 40-501 states that normally, Reservists who do not meet the medical fitness standards will be transferred to the Retired Reserve per Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) or discharged from the USAR.  They will be transferred to the Retired Reserve only if eligible and if they apply for it.

14.  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.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTFs) who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. 

15.  Army Regulation 635-40 states that MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his separation from the PRARNG be revoked and his case be considered through the PDES.

2.  The evidence of record shows on 2 December 2000, while deployed in  Kosovo, he injured his lower back and shoulder.  On 18 June 2003, while on AD he again injured his back and shoulder.  On 2 July 2005, he received a permanent profile for chronic back pain and right shoulder and right elbow pain and was subsequently referred to a Fit for Duty Determination Board.  His acknowledgement statement verifies that the board determined he was medically unfit.  He was discharged and transferred to the Retired Reserve on 11 July 2005.

3.  Based on the regulatory requirements, the applicant met the criteria for referral to the PDES under the provisions of Army Regulation 635-40.  At this point, it cannot be determined if the applicant met/meets the criteria for a medical retirement/discharge or, if so, with what percentage of disability.  Therefore, in the interest of equity, it would be appropriate to now process the applicant through the PDES.



4.  However, after 10 years, it would not be appropriate to return the applicant to the PRARNG.

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.  the Office of the Surgeon General contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders;

	b.  in the event that the applicant requires an MEB and PEB, the applicant will be afforded all of the benefits normally afforded individuals on active duty who are undergoing an MEB and/or PEB; and

	c.  should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his discharge from the ARNG and transfer to the Retired Reserve and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances, less any entitlements already received. 

2.  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 returning him to the Puerto Rico Army National Guard.



      _____________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)                                         AR20140006667





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ABCMR Record of Proceedings (cont)                                         AR20140006667



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