IN THE CASE OF:	  

		BOARD DATE:	  14 January 2015

		DOCKET NUMBER:  AR20140007435 


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 records to show he was diagnosed with unfitting conditions and placed on the Permanent Disability Retired List (PDRL).

2.  The applicant states he deployed to Iraq with the 351st Military Police Company.  On 11 September 2003, while returning from an escort mission, the vehicle he was traveling in was involved in a vehicle rollover and he sustained several injuries.  The injuries he sustained in the accident aggravated old injuries he had sustained during his prior service with the U.S. Marine Corps (USMC) and are documented in his medical records.

   a.  He continued to receive treatment for pain management and physical rehabilitation during the remainder of his overseas tour.  When he redeployed to Fort Stewart, GA, he was placed on medical hold for approximately three months.  He then returned home and continued to receive medical treatment through the Department of Veterans Affairs (VA).

   b.  In 2004, he was advised that he required a physical examination for a medical retention determination.  The examination revealed both his physical deficiencies and psychological problems that he was working on through the VA.

   c.  In 2007, he was referred to a Medical/Physical Evaluation Board (MEB/PEB).  He received numerous "P3" profiles and was deemed disqualified for continued service in the U.S. Army Reserve (USAR).

   d.  The staff of the 81st Regional Readiness Command (RRC) reviewed his records and informed him that since he was receiving compensation from the VA, he would not be referred to a Medical Evaluation Board (MEB).  He was also informed that Department of Defense (DoD) policy did not allow the collection of both Army retired pay and VA compensation.  The best option he was offered was to request early medical retirement and receive military retired pay and entitlements when he reached age 60.  Documentation was prepared, approved, and he was released from his USAR unit.

   e.  He followed instructions to ensure he updated the Defense Enrollment Eligibility Reporting System (DEERS) with both his new status and his dependents' personal data.  He was issued a DOD identification (ID) card showing his retired status with entitlement to medical benefits and he was also enrolled in TRICARE.

   f.  After a period of time, he realized that he had not received his 20-Year Letter in the mail.  He contacted the 81st RRC, but the staff was not responsive to his inquiry.  He was advised to contact the U.S. Army Human Resources Command (HRC).  An HRC staff member initially told him he was retired, but they could not locate his 20-Year Letter.  Several calls later, an HRC staff member informed him that a review of his records failed to show any evidence that he was retired and that his records indicate that "I was just released on a process that was no longer practiced."

   g.  He provided the documentation that he had pertaining to his separation to HRC.  Shortly thereafter, he received his 20-Year Letter.

   h.  He concludes by stating that he believes the separation process was filled with error and was unjust.  He adds he should have been processed through the Physical Disability Evaluation System (PDES).  He also wonders what his status would be (25 years from now), if he had not inquired into his 20-Year Letter until reaching age 60 after having relied upon the erroneous information he was given.

3.  The applicant provides copies of his military medical records, separation documents, and VA rating decisions.

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.  The applicant had prior honorable active duty enlisted service in the USMC from 6 September 1988 through 26 August 1996.

3.  He enlisted in the USAR on 6 June 2000 and was awarded military occupational specialty (MOS) 95B (Military Police).  He continued to serve in the USAR and he attained the rank of staff sergeant/pay grade E-6.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was ordered to active duty on 10 February 2003 in support of Operation Enduring Freedom, honorably released from active duty on 26 September 2004 based on completion of required active service.  He had completed 1 year, 7 months, and 17 days of net active duty service during this period that included 1 year and 29 days of foreign service.  It also shows he served in Kuwait and Iraq from 21 May 2003 through 18 June 2004.

5.  On 2 May 2006, the examining physician prepared a DD Form 2808 (Report of Medical Examination) to document the applicant's retention physical examination.  It shows in –

* item 74a (Examinee/Applicant), the examining physician found the applicant qualified for retention
* item 74b (Physical Profile), a "PULHES" of "132112" as of 21 July 2006
* item 76 (Significant or Disqualifying Defects)

* pes planus
* depression
* C5-C6 radiculopathy
* chronic right shoulder pain (due to degenerative joint disease)

6.  A DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report), covering the period 2 June 2006 through 1 June 2007, shows the rater assessed the applicant's overall performance and potential as "Fully Capable."

7.  HRC, St. Louis, MO, memorandum, dated 16 August 2007, subject:  Notification of Failure to Comply, shows the Chief, Medical Support Division, informed the applicant that he had failed to provide documentation for a determination of his medical fitness.  As a result, a temporary disqualification code was placed in his medical record based on the Failure to Comply status and his case was forwarded to the 81st RRC Surgeon's Office.

8.  Headquarters, 81st RRC, Birmingham, AL, Orders 07-362-00028, dated 
28 December 2007, reassigned the applicant to the 81st RRC, TTHS (Trainees, Transients, Holdees, and Students) Account, effective 28 December 2007.

9.  Headquarters, 81st RRC, Birmingham, AL, Orders 08-030-00029, dated
30 January 2008, reassigned the applicant to the USAR Control Group (Retired Reserve), based on medical disqualification (not the result of own misconduct), effective 29 February 2008.

10.  The applicant's AHRC Form 249-E (Chronological Statement of Retirement Points) shows he served continuously in the:

* USMC (active/reserve) from 6 September 1988 through 26 August 1999
* USAR from 6 May 2000 through 29 February 2008

   a.  It shows he was credited with 3,770 total creditable retirement points and that he had 15 qualifying years for retirement.

   b.  It also shows he was transferred to the USAR Control Group (Retired Reserve) effective 1 March 2008.

11.  On 5 December 2012, the Chief, Reserve Retirements, HRC, Fort Knox, KY, notified the applicant that his eligibility for retired pay had been established upon attaining age 60 (a 15-Year letter).

12.  A review of the applicant's military service records failed to reveal any evidence that the applicant was referred to an MEB or PEB during the period of service under review.  There is also no evidence the applicant waived referral to the PDES.

13.  In support of his application the applicant provides the following documents:

   a.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 August 2004, completed (in part) by the Chief, Patient Administration Branch, Air Surgical Mobile Hospital, Tallil Air Base, Iraq, that shows the applicant was examined at 0100 hours, 11 September 2003, and found to have sustained muscle strain from a motor vehicle accident.  The approving authority determined that the applicant was injured on 10 September 2003 when the vehicle he was patrolling in rolled over.  He found that the applicant's injuries were "In Line of Duty."

   b.  Four photographs that show a HMMWV with damage to the roof and right side of the vehicle.

   c.  Copies of his medical records, spanning the period from 10 March 2003 to 11 August 2004, that show, in pertinent part:

    	(1)  a Standard Form (SF) 600 (Chronological Record of Medical Care), with an entry for 0452 hours, 11 September 2003, that shows the applicant injured his right shoulder and arm following a HMMWV rollover at 2230 hours.  The examining physician noted that he might also have aggravated a 1989 hairline fracture of his right elbow.  The applicant reported that his right hand felt tingly and the left side of his neck was stiff.

    	(2)  The applicant continued to receive treatment for numbness in his right shoulder and right hand, neck pain, and upper back pain during the remaining period of time covered by the medical records.

   d.  DA Form 3349 (Physical Profile) that shows the applicant was issued a permanent profile with a "PULHES" of "132112" on 10 September 2007.  It also shows in item 10 (Other ):  "Service Member with neck and right shoulder pain secondary to degenerative joint disease does not meet medical retention standards and needs NDR [Nonduty Related Disqualification for Retention] PEB [Physical Evaluation Board] in accordance with (IAW) Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 3-14c, which is osteoarthritis with significant symptoms that impair function."  The applicant's physical profile was approved by the Command Surgeon's Office, 81st RRC.

   e.  Headquarters, 81st RRC, Birmingham, AL, memorandum, dated
20 December 2007, that notified the applicant that, as a result of his medical examination, he was medically disqualified for continued service in the USAR.  He was provided the reasons for his medical disqualification and information concerning his options regarding his medical disqualification.

    	(1)  An Acknowledgement of Notification of Medical Unfitness for Retention and Election of Options that shows, "I have placed my initials in the appropriate space to indicate selection.  I acknowledge that I must also provide the supporting documents indicated."  (The four possible selections listed follow.)

* "I have 20 years of qualifying service (good years) and request reassignment to the Retired Reserve per Army Regulation 140-10, chapter 6"
* "I request reassignment to the Retired Reserve with early (emphasis on form's template) qualification of eligibility to receive retired pay at age 60 IAW Title 10, U.S. Code, section 12731(b), because I have at least 15 years but less than 20 (emphasis on form's template) qualifying years of service for retired pay purposes with the last six (6) years having been creditable reserve service."
* "I request an Honorable Discharge from the USAR"
* "I request an informal PEB/MEB to review my medical records for a final determination of my medical fitness for retention and will adhere to the following:"

    		(a)  The applicant indicated his selection by placing a checkmark on the line for the statement, "I request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay…."  He also indicated with an "X" in the boxes indicating he had attached his:

* DA Form 4187 (Personnel Action) requesting early retirement
* DA Form 4856 (Developmental Counseling Statements) from the Commander and the Retention Noncommissioned Officer

   		(b)  The applicant further indicated a selection by placing a checkmark on the line for the statement, "I request an Honorable Discharge from the USAR."

    		(c)  The form fails to reveal evidence that any other selections were made by the applicant.

    	(2)  A DA Form 4187, dated 13 January 2003, that shows the applicant requested "Early Reserve Retirement Eligibility – Disability" due to medical disqualification for retention.  He indicated that he had at least 15, but less than 20 qualifying years of service for retired pay.

    	(3)  Two DA Forms 4856, both dated 13 January 2003, show he was counseled by his Company Commander and Reserve Career Counselor on his decision to separate from the USAR Troop Program Unit (TPU) based on an approved (early) medical retirement.

   f.  A milConnect webpage printout of the applicant's "personal profile information" that identifies him as a retired military member (receiving retired pay) beginning 1 March 2008.

	g.  DD Form 2 (Retired), U.S. Uniformed Services ID Card – U.S. Army (Retired), issued to the applicant on 2 October 2008, that shows authorization for military and civilian medical benefits.

   h.  VA Winston–Salem Regional Office, Winston–Salem, NC, rating decision that shows the VA granted him service-connected disability compensation for:

* post-traumatic stress disorder (PTSD) with cognitive impairment, increased from 50% to 70% disabling, effective 10 June 2010
* traumatic brain injury (TBI) with tension headaches, increased from 
30% to 40% disabling, effective 17 September 2010
* superior labrum anterior-posterior, right shoulder, 20% disabling
* intervertebral disc disease, cervical spine, 10% disabling
* permanent 100% disability evaluation for service-connected disabilities, effective 1 September 2010, with an overall or combined rating of 90%

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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.  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.  Separation by reason of disability requires processing through the PDES.

	a.  Chapter 3 (Policies), paragraph 3-4 (Line of Duty (LOD) Decisions), provides that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LOD criteria to be eligible to receive retirement and severance pay benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

		(2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

	b.  Chapter 4 (Procedures) provides:

		(1)  in paragraph 4-10 (The MEB) that MEB's 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 criteria in Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

		(2)  in paragraph 4-12 (Informal Board) that each case is first considered by an informal PEB.  Informal procedures reduce the overall time required to process a case through the disability evaluation system.  An informal board must ensure that each case considered is complete and correct.  All evidence in the case file must be closely examined and additional evidence obtained, if required.  In addition, in all informal cases, the PEB Liaison Officer of the medical treatment facility having control of the Soldier will be the counselor for the Soldier.  As such, the PEB Liaison Officer is primarily concerned with the Soldier's interests.  The Soldier will be made fully aware of the election options available to him or her, the processing procedures, and the benefits to which he or she will be entitled if separated or retired for physical disability.

	c.  Chapter 8 (Reserve Component), paragraph 8-6 (Medical Processing), provides:

    	(1)  When a commander or other proper authority believes a Soldier not on extended active duty is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability, the commander will refer a USAR Soldier for medical evaluation according to Army Regulation 40-501.

    	(2)  Conduct of an MEB and referral of the case to a PEB will be according to the procedures of chapter 4 (Procedures), section III (Medical Processing Related to Disability Evaluation).  If the Soldier is not eligible for referral to a PEB, the Medical Treatment Facility will forward the MEB to the Soldier's unit commander for disposition under applicable regulations.

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30 percent.  Section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.

16.  Title 38, U.S. Code, 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 VA rating does not establish error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different disability ratings based on the same impairments.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be referred to an MEB/PEB for a disability rating determination due to service-connected injuries he sustained while serving on active duty as a member of the USAR that medically disqualified him for continued service in the USAR.

2.  The evidence of record shows the applicant was injured in the LOD while serving on active duty on 10 September 2003.  The injuries (a muscle strain that might have aggravated a hairline fracture of his right elbow) were documented in his medical records and on his physical examination, on 21 July 2006, when the examining physician found the applicant qualified for retention.

3.  The applicant's NCOER ending on 1 June 2007 shows he was fully capable of performing his duties.

4.  On 20 December 2007, he was declared medically disqualified (emphasis added) for continued service in the USAR based on his medical examination.
The evidence of record shows he had significant or disqualifying defects of 
pes planus, depression, C5-C6 radiculopathy, and chronic right shoulder pain due to degenerative joint disease.

5.  The applicant was offered the option to have his medical records reviewed by an MEB/PEB for a final determination of his medical fitness (emphasis added) for retention.  The evidence of record fails to show that he elected to exercise that option.  Instead, the applicant requested reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay.
6.  There is no evidence of record to show that the applicant's medical conditions (individually or in combination) were found to be medically unfitting (emphasis added) by an MEB/PEB under the provisions of Army Regulation 40-501.  There is also no evidence that shows he was unable to perform his duties, or that an acute grave illness or injury or other deterioration of physical condition occurred that rendered him unfit immediately prior to or coincident with his separation and transfer to the USAR Control Group (Retired Reserve) effective 1 March 2008.

7.  The evidence of record shows that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties.  The evidence of record fails to support a conclusion that he was unable to perform his duties.

8.  Therefore, 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)                                         AR20140007435



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ABCMR Record of Proceedings (cont)                                         AR20140007435



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