IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140007992 


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 reconsideration of his earlier request for:

	a.  consideration of his case by a medical evaluation board (MEB);

	b.  the opportunity to reenlist or obtain a commission if found fit for duty; or

	c.  medical retirement in pay grade E-6 or O-1 if found not fit for duty.

2.  He also requests the following new issues:

* correction of his physical profile, dated 24 March 2008
* initiation of a line-of-duty (LOD) investigation for the 14 September 2006 incident
* obtainment of expert testimony and recommendations prior to any final decision opposing the evidence that the physical profile should have been permanently rated as 3

3.  The applicant states:

	a.  The physical profile, dated 24 March 2008, should be corrected to comply with the standards of a physical profile based upon two correspondences by the Department of the Army Surgeon General's Office that this profile did not comply with the standards.

	b.  A proper LOD investigation should be initiated and processed for the 14 September 2006 incident following the precedent as set forth in two Army Board for Correction of Military Records (ABCMR) cases.

	c.  The Board failed to address all relevant issues mentioned in the initial brief, which should be rectified by properly resolving any issues related to the missed points in the decision.

	d.  The aerobic event is a mandatory event for the Army Physical Fitness Test (APFT) from a physical profiling perspective, no matter the situation present.  The physical profile, dated 24 March 2008, violates this requirement because any inability to perform an alternate aerobic event should result in at least a physical profile classification of 3 and referral to an MEB.  A discrepancy requiring correction and reconciliation exists between the DA Form 3349 (Physical Profile) and the actual fighting load.  The physical profile claimed a fighting load of 48 pounds.  The fighting load of a Soldier in 2008 was 75.3 pounds.  The correction necessary to fix the physical profile form is changing item 5b (Able to Move with a Fighting Load at Least 2 Miles (48 pounds includes helmet, boots, uniform, load-bearing equipment, weapon, protective mask, pack, etc.)) to read "NO" to comply with the current fighting load at the time the physical profile was written, changing the physical profile code to 3, and his referral to an MEB.

	e.  The March 2008 physical profile meets the signature requirement of a permanent physical profile rating of 2, but not a permanent physical profile rating of 3 per a colonel's letter.  When the physical profile is coded as a permanent 3 based on his arguments, the physical profile is improperly signed and needs to be remedied administratively.  Even if the physical profile was a permanent 2 physical profile, the physical profile violates the physical profile code required for the signal systems support specialist position and he should have been referred to a Military Occupational Specialty (MOS) Medical Retention Board.

	f.  Upon placement on permanent physical profile, an LOD investigation should have been initiated.  Prior comparable cases by the Board indicate an LOD investigation must be completed upon receiving a permanent physical profile.  Recent cases before the Board dealt with this issue.  The Board is generally required to either follow precedent or distinguish the cases containing similar situations.  He requests precedent be followed by ordering a proper LOD investigation without regard to any medical board consideration, as this process does not directly affect the starting of a medical board unless the investigation determined it was warranted.  To date, he does not have any copy of any LOD investigation, either formal or informal, to indicate his case followed precedent concerning whether the LOD investigation was completed for the 2006 combat injury.

	g.  Regardless of any eligible medical board proceedings or the casualty report indicating no LOD was necessary, the LOD investigation should have been completed and the Board should initiate this process once the permanent physical profile was issued in March 2008 at the least.  Even if this Board should discover an LOD investigation for this injury was initiated, there is no record that the LOD investigation was completed properly and approved by a proper authority.  Completion of a proper LOD investigation is required regardless of any MEB/physical evaluation board (PEB) recommendations to comply with the requirements set forth by this board.

	h.  In the event the Board finds any initial proceedings for an LOD investigation, the Board should require restarting the process to ensure proper completion of the LOD requirements per this Board's instructions.  The Board decision did not properly consider the formal requirements of command review of all physical profiles.

	i.  The previous Board decision left a conflict between one noncommissioned officer evaluation report (NCOER) with a comment saying the physical profile affected performance and a "Success" rating stating the rating overruled the comment itself.  If left unresolved in light of the new evidence presented, it will create further conflicts needing sorting out by the Board and is best handled by the Board now.

	j.  The previous Board decision did not resolve the issue of the fact that no APFT's were given to him since November 2006, with every NCOER either showing the APFT block as blank or "Profile," indicating to all concerned there was a problem requiring referral to an MEB.

4.  The applicant provides 17 exhibits as outlined in page 1 of his statement.

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 ABCMR in Docket Number AR20120012036 on 6 June 2013.

2.  He provided email from a staff sergeant at the 99th Movement Control Team at Camp Leatherneck, dated 13 December 2012, who states:

* the applicant's physical profile was marked with no alternate APFT event (no walking, swimming, or biking)
* the applicant's physical profile should read permanent 3, not 2

3.  He provided a letter from the Office of the Surgeon General to a Member of Congress, dated 19 February 2014, pertaining to the applicant's DA Form 3349 concerns, which states:

	a.  The DA Form 3349 is part of the physical profiling system used to classify individuals based primarily upon the function of body systems and their relation to military duties.  There are 10 functional activities that a Soldier must meet as a minimal requirement to be considered medically qualified for worldwide deployment.

	b.  The applicant specifically inquired as to the rational for the official weight of a fighting load.  As of 2008, the official weight of a Soldier's fighting load is 75.3 pounds.  The cumulative weight of the ballistic-resistant helmet, boots, elbow and knee pads, M-4 carbine rifle, body armor and side plates, gloves, uniform, and night vision device is the basis for this calculation.  The fighting load weight annotated in the DA Form 3349, dated February 2004, cites the fighting load as 48 pounds based on the weight of the ballistic-resistant helmet, boots, weapon, protective mask, and pack.  The 48 pounds was associated with the functional activity requiring a Soldier to be able to move with a fighting load at least 2 miles.

	c.  The 2010 version of the DA Form 3349 changed the functional activities to more accurately reflect the current requirements.  As a result, the requirement to carry a fighting load at least 2 miles was rescinded.  Currently, the only weight associated with a functional activity is the Soldiers' requirement to move 40 pounds while wearing usual protective gear.  The fighting load requirement in the new functional activities requires Soldiers to wear their equipment for at least 12 hours and carry and fire their assigned weapons.

	d.  The applicant also requested information regarding the signature requirements for permanent 2 physical profiles.  There is only one physician signature required on a permanent 2 physical profile.  Permanent 3 and 4 physical profiles require two signatures from the physician and approving authority.

	e.  The applicant's request for a "blind review" of his attached physical profiles without any identification for "errors" is not possible.  No medical documentation is available to substantiate the recorded physical profile information.

4.  He also provided email from a colonel in the Office of the Surgeon General, dated 5 March 2014, who states:

	a.  Permanent 3 or 4 physical profiles require the signature of two profiling officers.  Temporary or permanent physical profiles of 1 or 2 require the signature of one profiling officer.

	b.  The inability to perform a 2-mile run and any of the three alternate aerobic events (walk, bike, or swim) in a Soldier who has reached his or her Medical Retention Decision Point (MRDP) requires referral to an MEB.  The aerobic event of the APFT (unlike the sit-ups and/or push-ups) is the only mandatory part of the APFT from a profiling perspective.

	c.  For item 6 (APFT) of the DA Form 3349 (Physical Profile), check either "Yes" or "No" to indicate whether the Soldier can perform the activities for the APFT.  The "Yes" or "No" blocks on the alternate APFT need only be completed if the Soldier has restrictions for the regular APFT aerobic event.  If the Soldier cannot perform at least an alternate APFT aerobic event, the physical profile serial rating will be at least 3 and the Soldier will be referred to an MEB.

5.  His remaining arguments are new evidence that will be considered by the Board.

6.  The applicant enlisted in the U.S. Army Reserve (USAR) on 2 May 2002 for 8 years.  He completed training as a carpenter and masonry specialist.  He was ordered to active duty in support of Operation Enduring/Iraqi Freedom on 7 February 2003.  He was released from active duty (REFRAD) on 9 April 2004 upon completion of his required active service.

7.  On 7 July 2004 while serving in the USAR, he enlisted in the Regular Army for 4 years.  He completed training as a signal support systems specialist.  He arrived in Iraq on 20 November 2005.

8.  His medical records show he was seen by medical officials on 19 October 2006 because of a vehicle-borne improvised explosive device (IED) incident that occurred on 14 September 2006.  His records show he visited the troop medical clinic shortly after the IED incident, but he had been suffering with progressive memory loss and needed a complete workup, including consultation with a neurologist.

9.  On 7 November 2006, he departed Iraq.

10.  On 22 March 2007, he was issued a temporary physical profile rating of 2 for lower extremities (L) due to mild low back pain.  The physical profile limitations included:

* no 2-mile run
* no sit-ups
* no unlimited running
* no unlimited walking
* no biking at own pace and distance
* no swimming at own pace and distance
* no jumping
* no ruck marching

11.  The profiling officer recommended use of the elliptical equipment at the gym for cardiovascular exercise as mission allowed.  The DA Form 3349 is not signed or dated by an approving authority.  The applicant was issued another temporary L-2 physical profile for mild low back pain on 27 April 2007.

12.  On 28 July 2007, he was issued a temporary L-3 physical profile for low back pain.  The physical profile limitations included:

* no 2-mile run
* no sit-ups
* no push-ups
* no unlimited running
* no unlimited walking
* no unlimited biking
* no unlimited swimming
* no running at own pace and distance
* no lower body weight training

13.  The profiling officer recommended an appointment with a chiropractor.  The DA Form 3349 is not signed or dated by an approving authority.  He was issued another temporary L-3 physical profile for low back pain on 11 September 2007.

14.  On 20 December 2007, he was issued a permanent physical profile rating of 2 for upper extremities (U) due to carpal tunnel syndrome.  His physical profile limitations included no 2-mile run and no sit-ups.  The DA Form 3349 is signed and dated by an approving authority.

15.  A DD Form 2697 (Report of Medical Assessment), dated 20 March 2008, shows the applicant's treatment for the IED injuries were proving successful.  He was treated for traumatic brain injury (TBI), concussion, back injury, and post-traumatic stress disorder (PTSD).

16.  On 24 March 2008, the applicant was issued a permanent U-2 physical profile for carpal tunnel syndrome and permanent L-2 physical profile for lumbago.  His physical profile limitations included:

* no 2-mile run
* no unlimited running
* no unlimited walking
* no unlimited biking
* no unlimited swimming
* no biking at own pace and distance
* no swimming at own pace and distance
* no heavy lifting
* no repetitive bending/digging/lifting
* no ruck marching
* no jumping
* no spinning
* no leaping
* no extreme physical activity or exertion
* physical training at his own pace

17.  Item 5b of this DA Form 3349 shows a checkmark in the "YES" block.

18.  Item 6 (APFT/Alternate APFT) of this DA Form 3349 shows a checkmark in the "NO" block for the following events:

* APFT Walk
* APFT Swim
* APFT Bike

19.  A DD Form 2808 (Report of Medical Examination), dated 3 April 2008, shows the applicant underwent a medical examination for the purpose of separation at the expiration of his term of service.  This form shows a summary of his defects as:

* back pain (controlled by medication)
* PTSD (improving)
* "NAS" (improving)
* myalgia (muscle pain) and myositis (muscle inflammation)
* right shoulder pain
* carpal tunnel syndrome
* TBI and memory loss (improving)
* discolored toe

20.  On 6 July 2008, he was honorably REFRAD upon completion of his required active service.  He was transferred to the USAR Control Group (Reinforcement).

21.  He was honorably discharged from the USAR effective 1 May 2010.

22.  There is no evidence the applicant was processed through the Army Physical Disability Evaluation System.

23.  A DD Form 2807-2 (Medical Prescreen of Medical History Report), dated 12 November 2010, shows the applicant underwent medical prescreening for enlistment in the U.S. Air Force on 20 October 2010.  He was found not physically fit for military duty.  This form also shows the Department of Veterans Affairs awarded him a 40-percent service-connected disability rating.

24.  Paragraph 7-11 (Preparation, Approval, and Disposition of DA Form 3349) of Army Regulation 40-501 (Standards of Medical Fitness) states for item 6, if a Soldier cannot perform at least an alternate APFT aerobic event, the physical profile serial will be at least a 3 and the Soldier will be referred to an MEB.

25.  Department of Defense Instruction 1332.38 provides for MEB's which 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 qualifications for retention based on the criteria in Army Regulation 
40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

26.  PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier's against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

27.  The doctrine of laches is defined by Black's Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with the lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.



DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends the Board is generally required to follow precedent or distinguish the cases containing similar situations, the Board considers a case based on the evidence of record and any independent evidence provided by the applicant.  Each case is decided on its own merits.

2.  He requested an LOD investigation regarding injuries he sustained in Iraq in September 2006.  Since it is now almost 9 years since his IED incident, the doctrine of laches is invoked in his case.  At this point in time, there is no way to conduct a conclusive LOD investigation into the facts and circumstances of his case.  Therefore, there is an insufficient evidentiary basis for granting the applicant's request for an LOD investigation.

3.  He noted the 24 March 2008 physical profile identified a fighting load of 48 pounds instead of 75.3 pounds, the official weight of the fighting load of a Soldier in 2008.  He requested correction of item 5b of his DA Form 3349 to show "NO" to comply with the current fighting load at the time the physical profile was written.  However, the fighting load weight annotated in the DA Form 3349 cites the fighting load at 48 pounds based on the weight of the ballistic-resistant helmet, boots, weapon, protective mask, and pack.  The 48 pounds was associated with the functional activity requiring a Soldier to be able to move with a fighting load at least 2 miles.  Since there is no evidence and he provided no evidence showing he could not move with a fighting load of 48 pounds for at least 2 miles on 24 March 2008, there is no basis for amending item 5b of his DA Form 3349, dated 24 March 2008.
 
4.  His contention that the 24 March 2008 physical profile was improperly coded as a permanent 2 physical profile and should have been a permanent 3 physical profile appears to have merit.

5.  The DA Form 3349, dated 24 March 2008, shows:

* he was issued a permanent U-2 physical profile for carpal tunnel syndrome
* he was issued a permanent L-2 physical profile for lumbago
* he could not perform the 2-mile run or an alternate APFT aerobic event

6.  The governing regulation states if a Soldier cannot perform at least an alternate APFT aerobic event, the physical profile serial will be at least 3 and the Soldier will be referred to an MEB.

7.  He was REFRAD on 6 July 2008 upon completion of his required active service and he was honorably discharged from the USAR on 1 May 2010.

8.  There is no evidence the applicant was processed through the Army Physical Disability Evaluation System (i.e., MEB/PEB).

9.  It appears that an MEB is warranted since he could not perform at least an alternate APFT on 24 March 2008.  Therefore, it would be appropriate to amend his DA Form 3349, dated 24 March 2008, to show he was issued a permanent 3 physical profile for lower extremities (lumbago) and the proper approval authorities authenticated the form.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board believed that partial amendment should be approved.

2.  The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20120012036, dated 6 June 2013.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending his DA Form 3349, dated 24 March 2008, to show he was issued a permanent L-3 physical profile for lumbago and the proper approving authority authenticated the form;

	b.  issuing him invitational travel orders for the purpose of undergoing an MEB and, if appropriate, a PEB;

	c.  directing him to report for medical evaluation at the nearest available military medical treatment facility to his current residence; and

	d.  providing MEB and/or PEB findings and recommendations for further action, as necessary.
3.  The Board further determined 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 allowing him the opportunity to reenlist or obtain a commission, showing he was medically retired at this time, or amending item 5b of his DA Form 3349, dated 24 March 2008.

4.  Regarding the applicant's new issue to initiate an LOD investigation for the 14 September 2006 incident, the Board determined the evidence presented is insufficient to warrant relief in this case.



      ______________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)                                         AR20140007992



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ABCMR Record of Proceedings (cont)                                         AR20140007992



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