IN THE CASE OF:	   

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140013291 


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 referral into the Army's Integrated Disability Evaluation System (IDES).

2.  The applicant states, in effect:

* he was discharged from the Michigan Army National Guard (MIARNG) because he did not meet medical retention standards under Army Regulation (AR) 40-501 (Standards of Medical Fitness)
* this was based on a determination his physical disability was non-duty related; however, this was a mistake
* he now has the documentation to prove his disability was duty related
* he feels he should receive a disability rating for his medical condition

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status) and five documents related to a line of duty investigation for the applicant's left shoulder
* 16 pages of documents associated with the applicant's State Medical Review Board and subsequent discharge/retirement
* 138 pages of civilian and Department of Veterans Affairs medical records 
* 26 pages of documents extracted from the applicant's military medical records
* 10 pages of emails

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Regular Army and the U.S. Army Reserve, the applicant enlisted in the MIARNG on 29 May 1998 at the rank/grade of specialist/E-4.  While in the MIARNG, he deployed twice to Iraq (from 29 March 2003 to 3 April 2004 and 6 September 2008 to 7 June 2009, respectively).

2.  During his second deployment to Iraq, on or about 16 October 2008, he injured his left shoulder.  A line of duty investigation was conducted and on 9 June 2009 the injury was found to have been incurred in the line of duty.

3.  On 24 May 2011, a State Medical Review Board, MIARNG, was convened and determined the applicant was not fit for retention due to left shoulder arthritis/rotator cuff injury (superior labral tear from anterior to posterior lesion).

4.  A memorandum, dated 15 June 2011, from the Deputy State Surgeon, MIARNG, informed the applicant a review of his medical records revealed he no longer met Army medical retention standards.  He was given the following options:

* he could be given an honorable discharge
* be transferred to the Retired Reserve
* receive a reevaluation by a non-duty-related physical evaluation board (PEB)

5.  On 8 July 2011, the applicant responded, selecting to be transferred to the Retired Reserve.  On 30 July 2011, he was honorably discharged from the MIARNG.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the authority and reason for discharge as National Guard Regulation 600-200 (Personnel - General - Enlisted Personnel Management), paragraph 6-35l(8) (Medically unfit for retention per AR 40-501).  

6.  A memorandum, dated 19 February 2014, from the MIARNG Health Services Noncommissioned Officer (NCO) stated:

* a review of the applicant's discharge revealed a copy of the DA Form 2173 and line of duty investigation regarding his left shoulder injury was not available and apparently never scanned into the applicant's health records
* the documents were therefore not considered when he was recommended for separation by the State Medical Review Board
* had the State Medical Review Board had the information, the applicant would have been referred into the IDES for further evaluation
7.  A memorandum, dated 15 May 2014, from the MIARNG Deputy Chief of Staff for Personnel, essentially reiterates the memorandum form the MIARNG Health Service NCO and advises the applicant to submit an application to the ABCMR.

8.  A memorandum, dated 27 October 2014, from the Chief, Personnel Policy Division, NGB, subject:  Advisory Opinion - [applicant] essentially states:

	a.  Approval of the applicant's request is recommended.

* the applicant was retired by the MIARNG due to a non-service-related disability (left shoulder injury); the MIARNG now believes an error occurred and the left shoulder injury was incurred in the line of duty
* the MIARNG provided a memorandum stating a DA Form 2173 pertaining to the left shoulder injury was not included in the applicant's record when the decision was made to retire the applicant
* had the DA Form 2173 been included, the applicant would have been given the opportunity to be evaluated in IDES
* the MIARNG also provided a memorandum stating the left shoulder injury was found to have been incurred in the line of duty, however, it had not yet been submitted for NGB approval, as required under
Title 10, U.S. Code

	b.  The NGB recommends, and MIARNG concurs with, the following actions:

* Army Board for Correction of Military Records (ABCMR) to recommend MIARNG submit the line of duty determination to NGB for approval
* ABCMR to recommend the applicant be given invitational travel orders from the state surgeon general for the purpose of being evaluated by an medical evaluation board (MEB)

9.  The applicant was provided with a copy of this advisory opinion to allow him an opportunity to submit a rebuttal or additional comments.  He did not respond. 

10.  AR 40-501 governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, as well as medical fitness standards for retention and separation, including retirement; medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties and officer assignments; medical standards and policies for aviation; physical profiles; and medical examinations and periodic health assessments.

	a.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3-2.  These medical conditions and physical defects, individually or in combination, are those that (in pertinent part) significantly limit or interfere with the Soldier’s performance of their duties.  Paragraph 3-3 (Disposition) states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB as defined in AR 40-400 and will be referred to a PEB as defined in AR 635-40 with the following caveats:  ARNG/Army National Guard of the United States (ARNGUS) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 10 of this regulation.

	b.  Chapter 7 (Physical Profile) prescribes a system for classifying individuals according to functional abilities.  Paragraph 7-4b states a profile is considered permanent unless a modifier of "T" (temporary) is added.  A permanent profile may only be awarded or changed by the authority designated in paragraph 7-6.  All permanent "3" and "4" profiles, for Soldiers on active duty, will be reviewed by an MEB physician or physician approval authority.  An MEB physician is a military treatment facility (MTF) dedicated subject matter expert trained to perform disability evaluations per guidelines established in DODI 1332.38 
(AR 40-400 for MEB process).  The MEB physician will assist the MTF commander in educating profiling officers on current physical profiling regulation and policy guidance.

	c.  Chapter 10 (Army National Guard) sets basic policies, standards, and procedures for medical examinations and physical standards for the ARNG/ARNGUS.  Soldiers with non-duty related impairments are eligible to be referred to a PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was injured on or about 16 October 2008 while deployed in Iraq.  His injury was determined to be in the line of duty on 9 June 2009.  However, this line of duty determination was apparently never entered into his health record.  He was subsequently determined by a State Medical Review Board to not meet medical retention standards.  As a result, the applicant opted to transfer to the Retired Reserve and was discharged from the MIARNG on 30 July 2011.  

2.  In 2014, the line of duty investigation was found and the MIARNG acknowledged the applicant should have been evaluated in IDES.  In an advisory opinion, the NGB recommends favorable consideration of the applicant's request.  The NGB further recommends:
* that the ABCMR recommend the MIARNG submit the line of duty determination to NGB for approval
* the ABCMR recommend the applicant be given invitational travel orders from the state surgeon general for the purpose of being evaluated by an MEB

3.  In view of the foregoing evidence, there is sufficient evidence to show the applicant should have been evaluated for a fitness determination and possible disability rating within IDES.  It would therefore be appropriate to grant his request.  

BOARD VOTE:

___x____  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* recommending the MIARNG submit the line of duty determination to NGB for approval
* recommending the MIARNG Surgeon General contact the applicant and arrange invitational travel orders for the purpose of being evaluated by an MEB
* in the event a PEB finds that the individual concerned has a medically unfitting condition and it is compensable, action will be take to correct his records to show he was appropriately separated effective 30 July 2011


      ___________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)                                         AR20140013291



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ABCMR Record of Proceedings (cont)                                         AR20140013291



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