BOARD DATE:	 25 August 2015

		DOCKET NUMBER:  AR20140017966 


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, in effect, correction of his records to show he was medically retired with appropriate back pay and benefits from the time of his separation.  

2.  The applicant states, in effect, the following:

     a.  He was discharged in December 2013, after a Non-Duty Physical Evaluation Board (PEB) decision for hearing loss was made.  His hearing loss is a direct result of direct/indirect fire conditions sustained on a daily basis during his deployment in support of Operation Enduring Freedom (OEF).

     b.  He made numerous attempts to have his hearing loss viewed as "in the line of duty," which is supported by a DA Form 2173 (Statement of Medical Examination and Duty Status) and medical notes from his attending physician while overseas.  

     c.  Throughout the entire Non-Duty PEB process, he did not receive the proper support from his chain of command and as such was uncertain of his options or how to proceed.   

     d.  He was told that none of his other conditions, for which he has received approved line-of duty (LODs) status, could be considered in the course of his discharge.  Therefore, he request a full medical retirement due to his hearing loss, post-traumatic stress disorder (PTSD), kidney nephrolithiasis [kidney stones], and back injuries he sustained during combat, to include back pay and benefits.

3.  The applicant provides the following:

* Orders 059-1128 issued by the Commonwealth of Pennsylvania, Department of Military and Veteran Affairs, The Adjutant General (TAG), dated 28 February 2013
* NGB Form 22 (National Guard Bureau - Report of Separation and Record of Service) for period ending 16 December 2013
* DA Form 2173, dated 6 June 2008
* Standard Form 600 (Chronological Record of Medical Care), dated 6 June 2008
* DA Form 2823 (Sworn Statement), dated 28 February 2012
* Memorandum from the National Guard Bureau (NGB), subject: Line of Duty Determination (Applicant), dated 5 December 2013
* DA Form 2173, dated 27 September 2013
* Memorandum from the NGB, subject: Line of Duty Determination (Applicant), dated 1 February 2011
* DA Form 2173, dated 16 November 2010
* DA Form 2173, not dated and no signature

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army, with subsequent appointment in the Pennsylvania Army National Guard (PAARNG), on 8 May 2006.  He was assigned as a 19A (Armor Officer).    

2.  Orders 302-108, issued by the PAARNG on 9 October 2007, ordered him to active duty in support of OEF.  He served in Afghanistan from 
1 March 2008 to 25 November 2008, with Company D, 3d Battalion, 103rd Armor Regiment of the PAARNG.  

3.  On 25 December 2008, the applicant was released from active duty due to completion of required active service.  He completed 1 year, and 23 days of net active service.

4.  It was determined that the applicant suffered from medical condition(s) that warranted his referral for a medical examination to determine his fitness for retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  As a result of this referral and subsequent examination, he was determined to be unfit for retention and further service; however, this memorandum or notification is unavailable for review.
5.  A review of his records revealed a memorandum for the TAG, ATTN: G1-MPM-MS, PAARNG, subject: Notification of Intent – Soldier Election Form.  This memorandum instructed the applicant to elect one of the following options/statements with his initials:  

     a.  discharge from the Army National Guard and as a Reserve of the Army for medical retention disqualification IAW NGR [National Guard Regulation] 635-100 [Personnel Separations - Termination of Appointment and Withdrawal of Federal Recognition], paragraph 5a (14);

     b.  transfer to the Retired Reserve, I am in receipt of a "Letter of Eligibility for Retired Pay at Age 60" under provisions of Title 10, US Code, Section 1331;

     c.  consideration for the Early Reserve Retirement (ERR) for disabled members; or 

     d.  review by the Non-Duty Physical Evaluation Board (PEB) at the Department of the Army for retention ruling only.  I understand that, because this is a non-duty related condition, I am not entitled to reimbursement for any expenses incurred for travel, lodging, etc., as it pertains to this process.  I further understand that, if I fail to comply in providing my complete Non-Duty PEB packet to G-1-MPM-MS by the directed suspense date, I may be separated for medial retention disqualification IAW NGR 635-100. Paragraph 5a (14) for Officers. 

6.  With his initials, the applicant elected "discharge from the Army National Guard and as a Reserve of the Army for medical retention disqualification IAW NGR 635-100, paragraph 5a (14)."   

   a.  He also initialed that the statement: "I understand that I do not meet retention standards IAW Chapter 3, AR 40-501 and am no longer physically qualified to remain in the Army National Guard."  
   
   b.  He further initialed the statement: "With this election form, I have submitted the appropriate documentation as delineated in Memorandum, G1-MPM-SA, subject: Instruction for Non-Duty PEB Election Form."  
   
   c.  He signed and dated the memorandum on 6 December 2013.

7.  His records reveals a DA Form 4856 (Developmental Counseling Form), dated 9 December 2013, which counseled him on the Non-Duty (ND) PEB process.  Its stated purpose was to provide the Soldier the opportunity to have his case reviewed by the ND PEB for a retention ruling; it was not a punitive action.  The summary of the counseling, in pertinent part, follows as key points of discussion:

     a.  Medical Extension:  Soldier has been counseled that if they have not completed the ND PEB process by their ETS date, they may complete a one-year medial extension.  If the Soldier voluntarily chooses not to extend and voluntarily ETS out of the system, they may lose benefits associated with a Medical Discharge.  The Soldier must voluntarily agree to extend past their ETS to complete the PEB process.  The PEB exit discharge date will take precedent over your medical extension ETS date.

     b.  Medical Documents/Current Treatment Notes/Optimum Care Statement: 
 
          (1)  Soldier must provide medial documents/current treatment notes (both civilian and veteran administration treatment notes) dated within the last 
6 months.  These notes are required if the 'Review by Non-Duty PEB' election is made at the time your unit completes all documents required by the PEB packet checklist.  

          (2)  Optimum Care Statement (OCS).  If Soldier has reached optimum medical care (no further medical treatment, therapy, etc. will improve your medical conditions, you are required to provide an OCS from your physician.  

     c.  Duty Related Medical Condition:  Soldier has been counseled that their case is being processed as a Non-Duty PEB.  (Their unfitting medical condition is not a result of a line of duty injury.)  If the condition that is being reviewed for retention should be duty-related, the Soldier understands they must provide medical documentation form the date(s) of injury to substantiate a line of duty being completed.  The unit will inform G1-MPM-MS if a change of board is required due to the completion or initiation of a LOD for the unfitting condition.  A new suspense may be granted to allow for the completion of an LOD if required. 

    d.  By affording the Soldier the above counseling and consultation, the Soldier has the opportunity to become fully aware of their rights and make an informed decision as to whether to separate or elect review by the Non-Duty PEB.

8.  The applicant initialed his agreement with the counseling and authenticated it with a digital signature on 9 December 2013.

9.  His service medical records were not available for review.

10.  Orders 059-1128, published by the PAARNG on 28 February 2013, honorably discharged the applicant from the ARNG and Reserve of the Army, effective 16 December 2013, in accordance National Guard Regulation 635-100, paragraph 5a (14).

11.  The applicant submitted the following as evidence:

   a.  NGB Form 22 (Report of Separation and Record of Service), which honorably separated him effective 16 December 2013, by authority and reason of NGR 635-100, paragraph 5a (14) (Officer becomes medically disqualified for further military service (NGR 635-101)).  This form shows he completed 11 years, 7 months, 7 days of total service for retired pay.  Block 18 (Remarks) contains the comment: "Soldier issued permanent profile prior to ETS/Discharge for unresolved medical issues.  These medical issues must be addressed for future service consideration."

     b.  DA Form 2173, dated 6 June 2008, which shows he was seen at a military treatment facility in Jalalabad, Afghanistan for the condition of bilateral hearing troubles with ringing and persistent headaches.  The document describes the condition as a result of cumulative combat experience rather than one specific event with permanent partial disability may result.  He was on active duty, the formal LOD is checked "NO" and the injury is considered to have been incurred in LOD is checked "YES."   The form is signed and dated by both the attending physician and the unit commander. 

     c.  Standard Form 600, dated 6 June 2008, which is signed by the attending physician; however, it is mostly unreadable.  It is presumed to coincide with the diagnosis that is listed on the DA Form 2173, dated 6 June 2008.    

     d.  A sworn statement by the applicant's platoon medic, attesting to the fact that the applicant was in numerous fire fights, explosions and artillery fire while in Afghanistan.  He also states that he would check to ensure members of the unit were wearing their hearing protection and that the applicant always wore his.

     e.  DA Form 2173, dated 16 November 2010, which states he was seen at the Martinsburg Veterans Affairs (VA) Medical Center, Martinsburg, WV for the condition of right symptomatic nephrolithiasis [kidney stones] as occurring in Afghanistan and has had back pain as a result of wearing body armor.  It states he was on active duty, the formal LOD is checked "NO" and the injury is considered to have been incurred in LOD is checked "YES."  The form is digitally signed by both the attending physician and a unit representative.  

     f.  A memorandum from the NGB, subject: Line of Duty Determination (Applicant), dated 1 February 2011, based on the DA Form 2173, dated 
16 November 2010, for right symptomatic nephrolithiasis having occurred during OEF as approved "In Line of Duty."  

     g.  DA Form 2173, dated 27 September 2013, which states he was seen by the VA [no particular location was given] for PTSD.  He was diagnosed by a psychiatrist on 20 May 2013, with PTSD based on a post-deployment health assessment and a psychological exam as a result of being exposed to enemy fire while stationed in Afghanistan.  It states he was on active duty, the formal LOD is checked "NO" and the injury is considered to have been incurred in LOD is checked "YES."  The form is digitally signed by both the psychiatrist and a unit representative.

     h.  A memorandum from the NGB, subject: Line of Duty Determination (Applicant), dated 5 December 2103, based on the DA Form 2173, dated 
27 September 2013, for PTSD having occurred during OER as approved "In Line of Duty." 

     i.  DA Form 2173, undated and unsigned, states an injury of back pain/strain while deployed in support of OEF.

12.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES (Physical Disability Evaluation System) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, Separation).  

     a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected
    
   b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB)
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

     c.  The PDES assessment process involves two distinct stages: the MEB and the PEB.  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of “unfit for duty” is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

     d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

13.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Paragraph 3-4 states under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LD criteria to be eligible to receive retirement and severance pay benefits.

     a.  Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service.
   
     b.  Paragraph 3-4 states that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits.

          (1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training (IDT).

          (2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

14.  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 at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be medically retired with the appropriate back pay and benefits was carefully considered.  However, there is insufficient evidence to show he should have been medically discharged or retired by reason of physical disability.     

2.  The applicant served in the PAARNG from 8 May 2006 to 16 December 2013. During this period, he was mobilized and served on active duty from 3 December 2007 to 25 December 2008 and served in Afghanistan from 1 March 2008 to 
25 November 2008.   

3.  The evidence of record confirms, with the presumption of government regularity, that the applicant was found unfit for further service based on his medical condition(s).  Accordingly, he was notified of this finding and the options available to him.  He did not request a review of his medical disqualification by a Non-Duty PEB and given he had not completed the required number of years of qualifying service for normal or early non-regular retirement he elected to be honorably discharged from the USAR.  Accordingly, he was honorably discharged on 16 December 2013.
4.  Many of the applicant's medical records were not available for review with this case.  However, his record does contain, and he does provide, copies of DA Forms 2173 diagnosing him with medical conditions that occurred or were exacerbated during his service on active duty.  These conditions were approved by the NGB as "In Line of Duty" and occurring during his service while on active duty in support of OEF. 

5.  Notwithstanding his election, since his medical conditions were incurred as a result of him serving on active duty, it is unknown what medical conditions were factored into his command's determination of his unfitness for retention in the Army National Guard.  Therefore, as a matter of equity the applicant should have his records considered by a medical evaluation board to make this determination.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  _X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

     a.  directing the Office of The Surgeon General to contact the individual and arrange, via appropriate medical facilities, a physical evaluation and, if appropriate, referral to an MEB; and

     b.  if appropriate, by referral to an informal PEB.

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the MEB and, if necessary, the PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.
4.  In the event a PEB finds that the individual concerned has a medically unfitting condition and it is compensable, action will be taken to correct his records to show he was appropriately separated effective 16 December 2013.

5.  The Board further determined that 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 the individual concerned was medically retired without going through the PDES process.




      _________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)                                         AR20090020435



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ABCMR Record of Proceedings (cont)                                         AR20140017966



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