IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140008712 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 March 2005 to show he was medically retired due to disability vice honorably discharged.

2.  The applicant states:

	a.  While serving in Iraq with the 39th Infantry Brigade, Arkansas Army National Guard (ARARNG), he was injured.  After returning from his combat tour, he was demobilized and sent back to the ARARNG.  His injuries occurred while he was on active duty and he should have been retained on active duty until it was determined if he was fit for duty.  

	b.  He was placed on medical hold until he was medically discharged from the ARNG in June 2010.  He was not offered the chance to be medically retired nor was he granted active duty status for the time he spent in medical hold.  No Soldier can be released from active duty and returned to their Reserve unit with injuries they received on active duty until it has been determined if they are fit for duty.

3.  The applicant provides:

* his DD Form 214 for the period ending 31 March 2005
* two National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service)
* four DA Forms 3349 (Physical Profile), dated between 5 October 2003 and 2 July 2010
* three DA Forms 2173 (Statement of Medical Examination and Duty Status), dated between 26 January 2005 and 16 August 2007
* three memoranda, dated between 16 August 2007 and 16 May 2011
* NGB Form 23B (ARNG Retirement Points History Statement), dated 5 May 2011
* Enlisted Record Brief (ERB), dated 5 May 2011
* two orders, dated 25 June 2007 and 16 May 2011
* Arkansas Form 4187 (Personnel Action - Request for Discharge), dated 9 June 2011
* 187 pages of various medical/dental records, dated between 7 July 1977 and 20 June 2010

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.  Having had prior active service, the applicant enlisted in the Illinois ARNG (ILARNG) on 2 April 1993.  He was discharged from the ILARNG on 1 December 1995.  

3.  He enlisted in the ARARNG on 29 March 2002.  He was promoted to the rank/grade of specialist (SPC)/E-4 on 29 June 2002.  He was assigned to the 1st Battalion, 153rd Infantry, 39th Infantry Brigade.

4.  He provides a DA Form 3339, dated 5 October 2003, wherein it shows he was given a permanent profile of “2” on that date for post-traumatic arthritis of the right ankle in the L (lower extremities) category of the PULHES (emphasis added).  This profile showed he had no assignment limitations and could complete the walk, push-up, and sit-up portions of the Army Physical Fitness Test (APFT).

5.  He was ordered to active duty as a member his ARARNG unit in support of Operation Iraqi Freedom (OIF) and he entered active duty on 12 October 2003.  He deployed with his unit to Iraq on 17 March 2004.

6.  He provides a DA Form 2173, signed by his unit commander on 26 January 2005, wherein it stated he was seen as an outpatient in Baghdad, Fort Hood, and Fort Polk, on 17 May 2004 and for subsequent follow-up for the diseases of chronic back pain, spondylolysis, and degenerative joint disease (DJD).  The form was signed by the patient administrator on 5 January 2005 and stated the applicant was evaluated and treated with a bone scan and multiple orthopedic/physical therapy consults and returned to full duty.  His commander stated the applicant had complained of back pain during deployment and that constant wear of the body armor made it worse.  

7.  He departed Iraq on 8 March 2005.  He was honorably released from active duty on 31 March 2005 in the rank SPC to the control of the ARARNG.  The DD Form 214 he was issued for this period of service shows he was released from active duty by reason of completion of required active service.

8.  There is no evidence in his record, and he did not provide any evidence, that shows while serving on active duty during this period of service that he was treated for, or diagnosed with, any mental/medical condition/disorder that permanently prevented him from performing his assigned duties, was found to be unfitting, or required referral to an MEB or physical evaluation board (PEB).  There is no evidence that shows while serving on active duty he ever received a permanent profile of "3" that would require referral to an MEB/PEB. 

9.  He was subsequently assigned to Headquarters and Headquarters Company (HHC), 39th Support Battalion, ARARNG.  On 13 July 2006, he was promoted to the rank/grade of sergeant (SGT)/E-5.  

10.  On 14 April 2007, he reenlisted in the ARARNG for a period of 6 years and a bonus in the amount of $15,000.  

11.  He provides:

   a.  A DA Form 3349, dated 8 June 2008, wherein it shows he was given a temporary profile of “3” on that date for a back/left ankle injury in the P (physical stamina), U (upper extremities), and L categories of the PULHES and a “2” in the S (psychiatric) category.  This profile expired on 6 September 2008 and stated, in part, he could participate in unlimited running, walking, biking, swimming, and upper and lower body weight training.  

	b.  A DA Form 3349, dated 16 June 2008, wherein it shows he was given a permanent profile of “3” on that date for a back/left ankle injury in the P, U, and L categories of the PULHES, and a “2” in the S category.  This profile stated, in part, he could participate in unlimited running, walking, biking, swimming, and upper and lower body weight training and that he needed an MEB.  

12.  On 26 May 2010, he was promoted to the rank/grade of staff sergeant (SSG)/E-6.

13.  He provides:

	a.  A DA Form 3349, dated 2 July 2010, wherein it shows he was given a temporary profile of “3” on that date for an elevated fasting blood sugar in the P category of the PULHES.  The temporary profile ended on 30 September 2010 and did not contain any physical limitations. 

   b.  The results of a Periodic Health Assessment (PHA), dated 6 July 2010, wherein the examining physician stated, in part, the results of a PHA required the command surgeon to review and/or take appropriate action.  The applicant had one or more abnormal findings that required follow-up with a civilian provider.  A new profile had been written for a change in his PULHES.  The applicant reported a previous MEB for his knees and ankles found him fit for duty and he (the physician) had issued him a temporary profile for his elevated blood sugar. 

14.  On an unknown date, he subsequently underwent an MEB.  The MEB found he had been diagnosed with degenerative arthritis of the lumbar spine and right lower extremity radiculopathy that was medically unacceptable under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. The MEB also found that his conditions of ankle joint pain, sleep apnea, chronic post-traumatic stress disorder (PTSD), and essential hypertension did meet retention standards.  The MEB recommended he be referred to a PEB.  These MEB proceedings are not available for review with this case. 

15.  On 24 March 2011, an informal PEB convened at Fort Sam Houston, TX, and confirmed his unfitting disability of degenerative arthritis and right lower extremity radiculopathy.  The PEB, in part, stated:

   a.  For the degenerative arthritis, he (the applicant) started experiencing pain in 2004, it progressed over the years, and he reported he did not receive any treatment for it.  His MRI showed a bulging disc at L4-5 with mild bilateral foraminal encroachment and a posterior osteophyte at L5-S1.  The examination showed a 5/5 strength and no spinal abnormalities.  There was no tenderness or spasm and his gait was normal.  This condition was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5242 at 10 percent (%) disability rating based on limitation of forward flexion.  It was unfitting because he could not wear body armor and riding in a military vehicle (he was an 88M) worsened the pain. 
   
   b.  The right lower extremity radiculopathy was rated under VASRD 8799 and 8720.  He complained of a pain going down his right leg along with numbness.  His electro-diagnostic study showed a chronic right L5 radiculopathy.  This was unfitting in combination with his back because it worsened the pain when he rides in vehicles for a long time and was exacerbated by strenuous exertions such as loading and unloading vehicles.  It was rated at 10% disabling for mild, incomplete paralysis.
   
   c.  His conditions of ankle joint pain, sleep apnea, chronic PTSD, and essential hypertension did meet retention standards and had been found by the PEB not to be unfitting either independently or in combination with any other conditions as a review of the case file supported that they were not a significant limitation of his ability to perform his primary MOS.  He was assigned a combined rating of 20% and the PEB recommended he be separated with entitlement to severance pay if otherwise qualified.  
   
16.  On 6 April 2011, after being counseled on his rights and options, he waived his right to a formal hearing and concurred with the PEB findings and recommendation.

17.  On 20 April 2011, by memorandum to the U.S. Army Physical Disability Agency (USAPDA), he submitted an election requesting he be discharged with entitlement to disability severance pay.

18.  The applicant provides his ERB, dated 5 May 2011, wherein it shows his PULHES was 21311.

19.  Orders D136-12, dated 16 May 2011, issued by the USAPDA, honorably discharged him from the ARNG effective 30 June 2011, in the rank of SSG, with entitlement to disability severance pay in pay grade E-6 based on 12 years, 4 months, and 12 days of service.

20.  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.  It states MEB's/PEB’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 the criteria in Army Regulation 40-501, chapter 3.

21.  The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  The functions of the various organs, systems, and integral parts of the body are considered.  An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness.  A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations.  A profile containing one or more numerical designations of "3" signifies the individual has one or more medical condition that may require significant limitations.  A permanent profile of "3" would require referral to an MEB.

22.  Army Regulation 635-40 further states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

23.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically retired on 31 March 2005 vice honorably discharged from active duty.

2.  The evidence of record confirms he served on active duty as a member of his ARNG and he entered active duty on 12 October 2003.  He served in Iraq from 17 March 2004 to 8 March 2005.  He was honorably released from active duty on 31 March 2005 in the rank SPC to the control of the ARNG by reason of completion of required active service.  

3.  There is no evidence in his record, and he did not provide any evidence, that shows while serving on active duty that he was treated for, or diagnosed with, any mental/medical condition/disorder that permanently prevented him from performing his assigned duties, was found to be unfitting, or required referral to an MEB/PEB.  There is no evidence that shows while serving on active duty he ever received a permanent profile of "3" that would require referral to an MEB/PEB. 

4.  After his release from active duty, he continued to serve in the ARARNG.  The fact that he was promoted to SGT in 2006, reenlisted in the ARNG in 2007, and was promoted to SSG in 2010 confirms that he was fit for duty for many years after his release from active duty.  It wasn’t until 2011 that a PEB found he was unfit for duty in the ARNG at that time based on degenerative arthritis of the lumbar spine and right lower extremity for a combined rating of 20% disability.  He was subsequently discharged from the ARNG with severance pay as he had less than 13 years of service and a disability rating of less than 30%.

5.  In view of the foregoing, he is not entitled to the 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)                                         AR20140008712



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ABCMR Record of Proceedings (cont)                                         AR20140008712



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