IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140009626 


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, referral through the Physical Disability Evaluation System (PDES) to a medical evaluation board (MEB)/physical evaluation board (PEB).

2.  The applicant states, in effect:

* he injured his neck and back during an airborne parachute jump on 25 June 2013 while serving on active duty
* he was placed on temporary physical profile from November 2013 until he was released from active duty on 6 June 2014
* medical records show he was unable to tolerate heavy weight, could not wear combat gear, and had difficulty firing his weapon from a prone position
* he was unable to run for an extended period of time

3.  The applicant provides:

* 25 pages of Standard Forms 600 (Health Record – Chronological Record of Medical Care) ranging in date from 25 June 2013 to 31 March 2014
* two DA Forms 3349 (Physical Profile)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)



CONSIDERATION OF EVIDENCE:

1.  Records show the applicant enlisted in the Regular Army on 25 January 2011.  Upon completion of initial training, he was awarded military occupational specialty (MOS) 11B (Infantryman).  He successfully completed airborne qualification and the highest rank/grade held while serving on active duty was specialist/E-4.

2.  He was assigned to Fort Bragg, NC, for the entire period of his active service.  He was deployed to Afghanistan from 14 June 2012 to 28 September 2012.

3.  On 6 June 2014, he was honorably released from active duty.  His DD Form 214 shows his net active service of 3 years, 4 months, and 12 days.  Item 28 (Narrative Reason for Separation) shows "completion of required active service."

4.  The applicant provided 25 pages of Standard Forms 600 which show:

	a.  emergency room care, on 25 June 2013, for injuries to his neck as a result of an airborne training accident.  The diagnosis is shown as neck strain with skin abrasions and the treatment given was pain medication.

	b.  a copy of a DD Form 669 (Individual Sick Slip), dated 25 June 2013, apparently given as a result of the jump injury.  It states the diagnosis is cervical muscle strain with abrasion.  Also shown is a note saying cervical spine (c-spine) was negative.  The disposition in remarks shows medications, gives instructions to see physician for a profile, and to be placed on quarters, if needed.

	c.  after Care Instruction sheet describing the applicant's injury as cervical strain, noting no x-rays were done because the doctor found a fracture was unlikely.  Instructions are given for follow-up with his primary care physician.

	d.  emergency room care, on 27 July 2013, for chest pain and recurring neck/back pain.  The treatment shown was pain medication with instructions to follow up with his primary care physician.

	e.  outpatient examination in the Orthopedic Clinic, dated 31 March 2014, the purpose of which is shown as "military physical medical evaluation board (MEB) (Fitness for Duty Examination)."  Ranges of motion are recorded.  Radiographs (x-rays) are noted showing no significant abnormalities.  The doctor states the applicant's functional loss is severe enough to be potentially disqualifying if further treatment does not improve his condition.  A magnetic resonance imaging is recommended as well as referral to pain management or physical medicine.
5.  The applicant provided two DA Forms 3349.

	a.  The DA Form 3349, dated 7 March 2014, is signed by a physician assistant and shows a temporary profile rating of 3 for upper extremities (U) and lower extremities (L).  Block 1 (Medical Condition) states mid-back pain.  Block 8 (Functional Limitations and Capabilities and other Comments) shows the applicant was expected to be fully mission capable by 31 May 2014.  Block 8 also shows this profile as being an extension of a temporary profile, dated 28 February 2014.

	b.  The DA Form 3349, dated 21 March 2014, signed by the same physician assistant, shows a temporary profile rating of 2 for physical capacity or stamina (P).  Block 1 states controlled prescription medication use – green risk level.  Block 8 shows the expected date of being fully mission capable as 19 June 2014.

6.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.

	a.  Chapter 3 provides guidance for 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 service.

	b.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his/her duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service.

	c.  Chapter 7 provides guidance for the physical profile serial system  The profile is based on the function of body systems and their relation to military duties.  There are six factors, designated as:

* "P" for physical capacity or stamina
* "U" for upper extremities
* "L" for lower extremities
* "H" for hearing
* "E" for eyes
* "S" for psychiatric
	d.  Each factor is assigned a numerical designation from 1 to 4.

* "1" represents a high level of medical fitness
* "2" means there are some activity limitations
* "3" equates to significant limitation
* "4" indicates defects of such severity military duty performance is -drastically limited

	e.  The DA Form 3349 is used to record both permanent and temporary profiles.  A profile with a permanent 3 rating for any category requires approval by a physician designated by the military treatment facility commander.  All permanent 3 or 4 profiles are reviewed by a MEB physician or physician approval authority.

	f.  Soldiers who have one or more conditions that do not meet medical retention standards are to be referred to a MEB after attaining the Medical Retention Determination Point (MRDP).   The MRDP occurs when:

* the Soldier's progress appears to be medically stabilized
* the course of further recovery is relatively predictable
* where it can be reasonably determined that the Soldier is most likely not capable of performing the duties required by his/her MOS, grade, or rank

	g.  The MRDP and referral to an MEB/PEB will be made within 1 year of being diagnosed with a condition that does not meet medical retention standards, though referral may be sooner if it is determined the Soldier is not capable of returning to duty within 1 year.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  Chapter 3 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 and degree of physical disability present with the requirements of duties the Soldier reasonably may be expected to perform.

	b.  Chapter 4 provides guidance on referring Soldiers for evaluation by a MEB when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability.

8.  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 Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant, in effect, contends the injuries he sustained during an airborne jump were so severe he should have been referred to an MEB prior to his release from active duty.  After careful consideration of the evidence he provided, however, there is insufficient basis to support this claim.

2.  The medical records provided by the applicant show a serious injury occurred.  Also shown is the applicant was given a series of temporary level 3 profiles for the injuries sustained, with the last apparently being given on 7 March 2014; about 3 months before his separation.  On 31 March 2014, an orthopedic physician's evaluation shows functional loss which was potentially disqualifying.

3.  Army Regulation 40-501 states referral to an MEB requires a permanent profile at a level 3 or 4.  Additionally, the profile must be signed by a physician designated as an approving authority.  While one of the DA Forms 3349 showed a 3 rating, it was temporary and signed by a physician assistant.  Additionally, that profile indicates the applicant was expected to be fully mission capable by 31 May 2014.  Neither the temporary rating nor the fully mission capable date suggest the applicant's disability was viewed by medical authority to be of such a nature as to require referral to an MEB.

4.  The medical assessment made by the orthopedic physician does indicate functional loss; however, he frames the applicant's condition as being potentially disqualifying and contingent on the result of further treatment.  The doctor does not clearly state the condition fails to meet medical retention standards.

5.  Based upon the foregoing, there is insufficient basis upon which to grant 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 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)                                         AR20140009626



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ABCMR Record of Proceedings (cont)                                         AR20140009626



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