IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20140012589 


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 amendment of his honorable discharge from the Washington Army National Guard (WAARNG) to a medical retirement.

2.  The applicant states:

	a.  He was discharged for non-duty related medical reasons.  He should have been medically retired from the military.

	b.  When he underwent a Military Occupational Specialty Medical Retention Board (MMRB), they told him he was non-retainable and that he would be medically retired.  He was also told he would receive retirement benefits and severance pay since he was in his second contract.

	c.  After receiving his discharge orders he discovered he was honorably discharged for non-duty related medical reasons.  He later found out his line-of-duty (LOD) investigation was not complete at that time, but in May 2009 his LOD investigation was approved.

	d.  When he received some paperwork, he was given an option to appeal the decision within 90 days, but he did not appeal since he was under the impression he was being medically retired.  In reality, he was being discharged for non-duty related issues.

3.  The applicant provides no additional evidence.

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 enlisted in the WAARNG on 21 March 2001 and trained as an infantryman.  He was ordered to active duty on 15 November 2003 in support of Operation Iraqi Freedom.  He served in Iraq from 15 March 2004 to 28 February 2005.  He was released from active duty on 9 April 2005.

3.  His records contain a DD Form 3349 (Physical Profile), dated 3 March 2009, which shows he was issued a permanent profile of 323112 for low back pain, mild post-traumatic stress disorder (PTSD), and herniated disk L-3/L-4 and L-4/
L-5.  Item 10 (Other) of his form states on 10 January 2009 an MMRB determined:

* the applicant was not able to perform his military duties safely
* he did not meet retention standards
* his case should be referred to the Reserve Component Physical Disability Evaluation System (PDES) for disposition (i.e., medical evaluation board (MEB)/physical evaluation board (PEB))

4.  His records contain a memorandum from the WAARNG, dated 24 March 2009, which states:

	a.  He was notified that a medical fitness for duty evaluation of his current condition determined he was medically disqualified for continued service in the Washington ARNG.

	b.  This was his official notification for non-retention.

	c.  If he rebutted this decision, he could request further evaluation by a duty-related PEB.  This rebuttal must be submitted within 30 calendar days from the date of this memorandum.

5.  He was honorably discharged from the WAARNG on 24 April 2009 for being medically unfit for retention.
  
6.  There is no evidence the applicant was processed through the Army PDES.

7.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau (NGB).  The advisory official stated:

	a.  The applicant was discharged and/or separated effective 24 April 2009 and found medically unfit for retention standards.

	b.  In accordance with Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 8-26j(1), the unit did not carry out the correct procedure for his medical condition incurred in the LOD.  The last sentence of the guidance states, "Discharge will not be ordered while the case is pending final disposition."

	c.  The applicant has an approved LOD investigation, dated 19 May 2006, for injuries sustained during Operation Iraqi Freedom.  According to the LOD investigation, it was determined he suffered from left ear and face abrasions, concussion, post-concussion syndrome, post-traumatic headaches, left ear hearing loss, low back sprain, and temporomandibular joint syndrome.  The LOD investigation stated he should be referred to an MEB and MMRB for evaluation.  However, there is no evidence that the WAARNG completed this action.

	d.  NGB recommended correction of the applicant's Department of the Army records by having the Office of the Surgeon General contact the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders.  In the event he requires an MEB and PEB, he will be afforded all of the benefits normally afforded to individuals on active duty who are undergoing MEB and/or PEB.  Should it be determined the applicant should have been separated under the PDES, the ABCMR proceedings will serve as the authority to void his administrative discharge and to issue him the appropriate separation retroactive to his original separation date with entitlement to any pay and allowances, less any entitlement already received.

	e.  The WAARNG concurs with this recommendation.

8.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  He did not respond.

9.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.   The regulation provides that the servicing medical treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier's condition becomes questionable in respect to physical ability to perform duty.  Unit commanders will ensure that any physical defects impacting on a Soldier's performance of duty are reflected in the Soldier's evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.  It also states the MTF commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation.  If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.  The MEB will recommend referral to a PEB of those Soldiers who do not meet medical retention standards.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows an MMRB determined the applicant was not able to perform his military duties safely in January 2009, he did not meet retention standards, and his case should be referred to the PDES for disposition.

2.  He was discharged from the ARNG on 24 April 2009 for being medically unfit for retention.

3.  There is no evidence the applicant was processed through the PDES.

4.  It appears that an MEB is warranted since his unit did not comply with the MMRB's recommendation for referral of his case to the PDES for disposition.  He should be:

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

	b.  directed to report for medical evaluation at the nearest available MTF to his current residence; and

	c.  provided MEB and/or PEB findings and recommendations for further action, as necessary.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by:

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

	b.  directing him to report for medical evaluation at the nearest available MTF to his current residence; and

	c.  providing MEB and/or PEB findings and recommendations for further action, as necessary.

2.  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 showing he was medically retired at this time.



      __________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)                                         AR20140012589



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ABCMR Record of Proceedings (cont)                                         AR20140012589



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