IN THE CASE OF:	  

		BOARD DATE:	 7 April 2015 

		DOCKET NUMBER:  AR20140008139 


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 previous request to be reinstated in the Puerto Rico Army National Guard (PRARNG) to undergo a medical evaluation board (MEB) and physical evaluation board (PEB) and that he be discharged or retired by reason of a disability instead of an honorable discharge.

2.  The applicant states he was wrongly discharged from the PRARNG under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26j(1) for being medically unfit for retention.  This did not allow him due process for a final disposition of his case through an MEB/PEB in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and Department of Defense Instruction (DODI) 1332.18 (Separation or Retirement for Physical Disability).  The PRARNG commands that were involved either decidedly or unknowingly acted in an unjustified manner preventing an MEB/PEB referral and/or processing through the physical disability evaluation system (PDES).

3.  The applicant states Staff Sergeant S____ and others told him he had 
3 choices because he had to be discharged from the PRARNG.  

* leave and not receive anything because they would not pay him from 
3 January 2003 on
* if he would go to Fort Gordon for an MEB they would lower the 60 percent (%) granted by the Department of Veterans Affairs (VA) to 10% or 20% because that's what they do to everybody they sent there
* take a letter that they would give him and they would send a letter to the VA and with this they would give him a 100% disability

4.  He chose the 3rd option and the VA told him the system didn't work that way.  Then the PRARNG wanted him to reenlist (extend) for one month having a P-4 profile and the Medical Duty Review Board (MDRB) gave him a permanent profile L-4 and referred him to Fort Gordon because he was unfit for retention and told him he may still have money to receive.  However, they transferred him so they could give him an honorable discharge with no benefits.

5.  The applicant provides:

* Defense Finance and Accounting Service Military Leave and Earnings Statement, dated 13 September 2002
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 
7 January 2003
* Puerto Rico State Area Command, ARNG Orders 84-7, dated 15 April 2003
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service
* Radiology Diagnostic Report from VA Medical Center, San Juan, PR, dated 29 October 2001
* Report of magnetic resonance imaging (MRI) from Caribbean Imaging & Radiation Treatment Center, Inc, Ponce, PR, dated 17 October 2005

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 AR20130007310, on 6 March 2014.

2.  He provided new argument concerning his options provided for an MEB/PEB. 

3.  Having had prior active and Reserve service, the applicant enlisted in the PRARNG on 29 January 1996 and he held military occupational specialty (MOS) 12B (Combat Engineer).  He was assigned to the 130th Engineer Battalion, Carolina, PR.  

4.  He was serving as a member of his PRARNG unit on active duty for training (ADT) under Title 32, U.S. Code (USC) at Camp Beauregard, LA, from 12 to 26 August 2000.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 August 2000, shows he was treated on 18 August 2000 at the Troop Medical Clinic (TMC), Camp Beauregard, LA, for an injury that was incurred on that date.  This form shows he suffered back pain while lifting heavy objects when he was on kitchen patrol (KP).  The injury was considered to have been incurred in line of duty.  This form also stated he had no prior history of back pain.  

5.  Medical records, dated between 18 August 2000 and 25 February 2002, show he was treated as follows:

	a.  On 18 August 2000, at the TMC, Camp Beauregard, LA, for lower back pain that occurred while lifting heavy objects when he was on KP.  The examining physician prescribed medication and he was advised to return to sick call if the pain persisted.

	b.  On 19 August 2000, he returned to the TMC, Camp Beauregard, LA, for a follow-up for his back pain.  The examining physician noted the applicant stated he did not feel any better and had requested an x-ray.

	c.  On 21 August 2000, he returned to the TMC, Camp Beauregard, LA.  The examining physician stated the applicant could not touch his feet with his hands, his range of motion (ROM) was 45 degrees, and there was tenderness on palpation around the right sacroiliac joints.  He continued the applicant on medication with restricted duty.

	d.  On 21 August 2000, at the TMC, Camp Beauregard, LA, the examining physician stated the applicant's x-rays were negative and he could not rule out the L-5 disc.  He continued the applicant on medication with rest and no duty and requested a MRI to rule out a herniated disc.

	e.  A radiology report, dated 24 August 2000, shows the applicant underwent an MRI of the lumbar spine for low back pain and occasional right leg pain.  The radiologist stated the alignment of the spine was normal and the disc space heights unremarkable.  There was disc space desiccation at L5-S1 consistent with the applicant's age, no marrow changes were seen, and the conus medullaris was unremarkable in appearance.  The axial images showed a very mild broad-based central disc bulging at L5-S1 which did not compress the sac or nerve roots and did not appear to be causing any neural compression.

	f.  On 31 August 2000, he went to the Rodriquez Army Health Clinic (RAHC), Fort Buchanan, PR for a follow-up to his back injury.  The examining physician noted his MRI showed he had very slight bulging at the L5-S1 disc and stated the applicant should do no physical training (PT) for 30 days and return in 3 weeks.  

	g.  On 13 September 2000 and 5 October 2000, at the RAHC, Fort Buchanan, PR he was seen for follow-ups to his back injury.  He was diagnosed with a lumbar sacral strain and referred to physical therapy for an evaluation.

	h.  Between 26 January 2001 and 25 February 2002, at the RAHC, Fort Buchanan, PR and a Physical Therapy Clinic, location not shown, he was seen for follow-ups to his back injury and his complaints of low back pain radiating down to his leg that increased with physical activity.  He was prescribed medication and given several temporary profiles exempting him from PT.

6.  A VA Rating Decision, dated 20 February 2002, shows the VA:

* granted service connection for disc dessication at L5-S1 and lumbar lordosis due to muscle spasms, claimed as "lumbar condition," was granted with an evaluation of 60% effective 5 July 2001
* denied service connection for minimal degenerative joint disease, claimed as "cervical spine condition" 

7.  A DA Form 3349, dated 20 April 2002, shows he was given a permanent (P) 4 profile for the lower extremities on that date.  Block 3 (Assignment Limitations Are as Follows) of this form stated the applicant was granted a 60% VA disability rating and block 9 (Other) stated "Refer to MEB/PEB."  This form signed by the profiling officer and the approving authority. However, it was not signed by his immediate commander.

8.  A memorandum, dated 24 April 2002, issued by Headquarters (HQ) State Area Command, PRARNG, San Juan, PR, stated a MDRB convened on 20 April 2002 at Camp Santiago, PR.  The MDRB found the applicant was unfit for retention in the PRARNG as he had severe degenerative disc disease (DDD) L5-S1, he was not able to comply with his MOS duties, had 6 years, 10 months, and 3 days of service, and had been given a P-4 profile with the assignment limitations of unfit for service.  The MDRB recommended a referral to an MEB.

9.  A DA Form 4836, dated 7 January 2003, shows he extended his enlistment for 1 month.  His new expiration of term of service was 28 February 2003.

10.  Puerto Rico State Area Command, ARNG Orders 11-79, dated 14 February 2003, issued by HQ, 101st Troop Command, San Juan, PR, transferred him from the 130th Engineer Battalion, to the 783rd Maintenance Company, PRARNG, Toa Baja, PR, effective 11 February 2003, for assignment in MOS 52D (Power Generator Equipment Repairer).  

11.  Puerto Rico State Area Command, ARNG Orders 84-7, dated 15 April 2003, honorably discharged him from the ARNG effective 28 February 2003.  The authority for the discharge was NGR 600-200, paragraph 8-26j(1) (Medically Unfit for Retention).

12.  His NGB Form 22 with an effective date of 28 February 2003 shows he was honorably discharged on 28 February 2003 by reason of being medically unfit for retention.  He completed 7 years and 1 month of Reserve service during this period of service.  This form shows he was not available to sign the form and it was mailed to him by certified mail at his last known address.

13.  In a memorandum, dated 10 February 2013, from the PRARNG Joint Forces HQ, San Juan, PR, the Chief, Health Services Support Branch stated:

	a.  After reviewing and researching the applicant's request for correction of his erroneous separation from the PRARNG, he agreed with the applicant and
recommended approval of his request.  The evidence clearly showed the applicant received complex medical treatment as a result of injuries incurred in the line of duty (LOD) while on ADT and entitled to basic pay.  His command failed to refer him to the PDES under the provisions of Army Regulation 635-40 and DODI 1332.18.

	b.  There was no evidence that showed the applicant was properly counseled as to his rights to referral to an MEB/PEB for the purpose of disability benefits.  It was the commander's responsibility to ensure proper counseling was issued concerning his rights after he received the recommendation shown on the DA Form 3349 the applicant provided.

14.  On 5 August 2013, an advisory opinion was received from the NGB, Chief, Personnel Policy Division.  The advisory official recommended approval of the applicant's request and, in part, stated:

	a.  According to the applicant and the PRARNG, the applicant was erroneously discharged without the opportunity to be entered into the PDES.  The PRARNG agreed he was prematurely discharged because of injuries sustained.  The applicant received medical treatment as a result of injuries found in the LOD during ADT from 12 to 26 August 2000.  His profile, dated 20 April 2002, stated he was referred to an MEB.  Per the MDRB memorandum, dated 24 April 2002, the applicant was given a P-4 profile, found unfit for retention, and was subsequently honorably discharged effective 28 February 2003.

	b.  According to the NGB Chief Surgeon General (CGS), prior to his discharge, the applicant should have been counseled on the potential for PDES processing versus continuing his discharge proceedings.  He would have received the information regarding the pros and cons to both courses of action and would have been able to make an informed decision.  However, he was discharged without this opportunity and the PRARNG Health Services Office stated the unit failed to coordinate with the applicant to place him into the PDES to determine if permanent/temporary physical disability was merited.

15.  According to the Mayfield Clinic website, DDD is a term used to describe the normal changes in spinal discs as a person ages.  As a person ages, their spinal discs break down, or degenerate which may result in DDD in some people.  These changes are more likely to occur in people who smoke cigarettes and those who do heavy physical work (such as repeated heavy lifting).  People who are obese are also more likely to have symptoms of DDD.  A sudden (acute) injury leading to a herniated disc (such as a fall) may also begin the degenerative process.

16.  NGR 600-200 paragraph 8-26, governs the discharge from the State Army National Guard and/or as a Reserve of the Army.  Subparagraph 8-26j(1), in effect at the time, stated Soldiers are discharged from the State ARNG or from the Reserve of the Army when a Soldier is determined to be medically unfit for retention per Army Regulation 40-501, chapter 3.  Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501 and NGR 40-501(Standards of Medical Fitness).

17.  Army Regulation 40-501, chapter 10, sets basic policies, standards, and procedures for medical examinations and physical standards for the ARNG.  For the ARNG, chapter 3 is interpreted as the standard for retention.  Soldiers not meeting the standards of chapter 3 are considered to not meet retention standards and will require review by the State Surgeon and referral to the MDRB, in accordance with this regulation, in order to be retained in the Army National Guard of the United States (ARNGUS).

18.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNGUS and the USAR.  It applies to all enlisted Soldiers of the ARNGUS and the USAR who are not performing fulltime active duty in the U.S. Army.  The policy for the discharge of Soldiers medically unfit for retention, in effect at the time, stated, in part, discharge would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness under the provisions of Army Regulation 40-501.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that while the applicant was serving on ADT in August 2000 he was treated for back pain that occurred while lifting a heavy object.  At that time, he had normal x-rays and a normal MRI and the examining physician stated there was no evidence of any nerve impingement (emphasis added).  He was diagnosed with a lumbar strain, prescribed medication, and referred for physical therapy.  

2.  On 22 April 2002, the PRARNG MDRB determined he was medically unfit for retention due to DDD.  The MDRB also recommended referral to an MEB.  There is no evidence that shows an MEB was conducted and he was discharged almost a year later by reason of being medically unfit for retention.

3.  The statement from PRARNG Joint Forces HQ and the opinion from NGB, Chief, Personnel Policy Division both recommended relief for the applicant based primarily on the lack of evidence showing whether the applicant was properly counseled concerning the potential pros and cons of the PDES.  Their recommendations are based on a presumption of irregularity.  However, neither the PRARNG or the NGB addressed the medical issues of the case as to whether muscle strain and muscle spasm is the same as or a contributing cause of DDD.

4.  Although the records do not show he was counseled on the potential for PDES processing, the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The absence of documents from almost 12 years prior does not constitute an error on the part of the PRARNG.  As his 
P-4 profile and MDRB results recommended referral to an MEB, it is most likely he was least made aware of the PDES process.

5.  According to the applicant's statement he was counseled concerning the pros and cons of the PDES.  The extent of this counseling is not available.  However, he states he elected to take a letter to the VA.  According to his statement he did not elect to go to Fort Gordon.

6.  One of the criteria for processing through the PDES is that the disability must have been incurred or aggravated while the soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  The applicant's MDRB determined he was unfit for retention due to DDD.  DDD is a 
term used to describe the normal changes in spinal discs as a person ages.  As a person ages, their spinal discs break down, or degenerate which may result in DDD in some people.  These changes are more likely to occur in people who smoke cigarettes and those who do heavy physical work (such as repeated heavy lifting).  People who are obese are also more likely to have symptoms of DDD.  A sudden (acute) injury leading to a herniated disc (such as a fall) may also being the degeneration process.

7.  The evidence of record is void of any evidence that confirms his DDD was related to back pain he incurred on a single day lifting a heavy object while serving on ADT.  There is no evidence his back sprain led to a herniated disc.  Therefore, he would have not met the criteria for processing through the PDES.  

8.  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 to amend the decision of the ABCMR set forth in Docket Number AR20130007310, dated 6 March 2014.




      _______ _   _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)                                         AR20140008139



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ABCMR Record of Proceedings (cont)                                         AR20140008139



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