IN THE CASE OF: BOARD DATE: 21 August 2012 DOCKET NUMBER: AR20110016871 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 that his medical records be reviewed by the appropriate board for an accurate determination of his condition at the time of his discharge. 2. The applicant states the Army National Guard (ARNG) "kicked him out" with the wrong board. Since he was serving on active duty under Title 32, U.S. Code (USC), and he had a line of duty (LOD) determination, he should have gone through the Military Occupational Specialty (MOS) Medical Retention Board (MMRB) process rather than the man-day (M-Day) process. He tried to tell "them" that he hurt his back during his Title 32 duty, but they still processed him out the wrong way. He states he also sent the paperwork included with this application to back it up. 3. The applicant provides: * Orders 048-087, dated 17 February 2005 * Orders 054-001, dated 23 February 2005 * Orders 083-046, dated 24 March 2005 * Orders 237-058, dated 25 August 2005 * Orders 243-002, dated 31 August 2005 * Orders 251-028, dated 8 September 2005 * Orders 273-004, dated 30 September 2005 * Orders 362-032, dated 28 December 2005 * Orders 363-006, dated 29 December 2005 * Orders 044-012, dated 13 February 2006 * Orders 271-058, dated 28 September 2006 * Orders 317-044, dated 13 November 2006 * Orders 270-004, dated 27 September 2007 * Orders 345-075, dated 11 December 2007 * Orders 273-111, dated 29 September 2008 * Orders 354-020, dated 19 December 2008 * Orders 267-145, dated 24 September 2009 * DA Forms 3349 (Physical Profile), dated 14 August 2008 and 26 August 2010 * memorandum, Office of the Adjutant General, State of West Virginia, dated 4 October 2010, subject: [Applicant], Separation * memorandum, Departments of the Army and the Air Force, dated 10 December 2010, subject: LOD Investigation – [Applicant] for Incident That Occurred in April 2008 * multiple civilian medical documents * Disability counseling statement * Soldier's Rights and Warning Statement * Statement of Understanding * Standard Form 600 (Chronological Record of Medical Care) CONSIDERATION OF EVIDENCE: 1. According to the official National Guard Bureau (NGB) website, the following definitions are made: a. A traditional Title 32 Soldier (M-Day) is one who serves in the ARNG part time. His or her typical obligation is to drill (train) 1 weekend a month and participate in 15 days of annual training each year. b. When serving under Title 10, USC, "active duty" means full-time duty in the active military service of the United States. Title 10 allows the President to "federalize" National Guard forces by ordering them to active duty in their Reserve Component status or by calling them into Federal service in their militia status. c. When serving under Title 32 Active Duty, Title 32 service is primarily State active duty. This includes the following forms of active service: (1) State Active Duty: The Governor can activate National Guard personnel to State Active Duty in response to natural or man-made disasters or homeland defense missions. State Active Duty is based on State statute and policy as well as State funds, and the Soldiers remain under the command and control of the Governor. (2) Title 32 Full-Time National Guard Duty means training or other duty (other than inactive duty) performed by a member of the National Guard. Title 32 allows the Governor, with the approval of the President or the Secretary of Defense, to order a member to duty for operational homeland defense activities in accordance with USC. 2. The applicant was born on 23 May 1974. He enlisted in the U.S. Army Reserve (USAR) on 27 March 1995. He entered active duty for training on 9 May 1995, completed basic combat and advanced individual training, and he was released from active duty for training on 20 October 1995 to the control of his Reserve unit. 3. He was awarded and held MOS 63B (Light Wheel Vehicle Mechanic). He participated in unit training in 1996 and 1997 and he was discharged from the USAR on 24 October 1999. 4. He enlisted in the WVARNG on 25 October 1999. He attended the MOS 75B (Personnel Administration Specialist) Course from 31 May to 14 June 2002. He was promoted to sergeant (SGT)/E-5 on 23 December 2003. He followed that with a 3-year reenlistment on 26 December 2003. 5. He was ordered to active duty in support of Operation Iraqi Freedom on 30 November 2003 under Title 10, USC, section 12302, and subsequently served in Kuwait/Iraq from 27 February 2004 to 8 January 2005. While serving in Iraq: * on 11 March 2004 while walking to the meal line, he sustained a right ankle sprain; he went to sick call the next day * on 14 July 2004, he again injured his ankle as he was stepping out of the bathroom; he received an ankle brace to wear 6. In a memorandum, dated 18 September 2004, his unit S-1 (1st Battalion, 150th Armor, WVARNG) indicated his LOD packet did not contain a copy of his last physical examination. Only essential medical and administrative records were brought with the unit on deployment. Upon redeployment back to West Virginia, the applicant’s physical examination would be added to his LOD investigation if deemed necessary. The final disposition of his case is not available for review. 7. He was honorably released from active duty to the control of the WVARNG on 15 February 2005 by reason of completion of his required service. 8. He was ordered to active duty for special work through a series of State orders on 1 March 2005 under Title 32, USC, section 503. The orders and several amendments list the purpose of his active duty as homeland security, leadership development, counterdrug support, and/or other State reasons. 9. He executed a 1-year extension in the ARNG on 2 October 2006 and another 1-year extension on 24 October 2007. 10. His service medical records – specifically the DA Form 2173 (Statement of Medical Examination and Duty Status) that documented his injury – are not available for review with this case. He provides multiple civilian medical records that show: a. He complained of low back pain on 1 April 2008. He stated his back gets stiff at work. The diagnosis was possible lumbago. He was seen over the next few weeks in a follow-up status but continued to experience back pain. b. He was examined on 29 April 2008 at a civilian facility for low back pain. The medical doctor determined: * there was some loss of normal lumbar lordosis (inward curvature of a portion of the lumbar and cervical vertebral column) * vertebral body heights and disc spaces were grossly preserved * there was mild apex right thoracolumbar scoliosis (abnormal curving of the spine); may be positional in nature * the impression was loss of lumbar lordosis, mild scoliosis; may be positional c. He was reevaluated at a civilian facility on 9 June 2008 regarding back pain. 11. On 14 August 2008, he was issued a permanent physical profile for lumbar strain/gunshot injury to the calf. The details of the lumbar strain and the gunshot injury are not available for review with this case. Additionally, the profiling officer annotated this form with the entry, "SM [service member] is to provide treatment records regarding future care in order to remove this profile." 12. He attended and successfully completed the Total Army Instructor Course from 19 to 29 September 2008. 13. His DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the period 1 December 2007 through 30 November 2008 shows he performed as a platoon sergeant, received "success" ratings in all areas except physical fitness and military bearing, and received a Fully Capable/Successful/Superior rating. His rater rated him as "Needs Improvement" in the area of physical fitness and military bearing and entered the comments: "Always maintains neat and orderly appearance," "Currently on profile which prohibits any events of the Army Physical Fitness test," and "Profile does not prevent Soldier from completing daily duties or impair his performance." 14. On 29 May 2008, he executed a Disability Counseling Statement wherein he indicated he was eligible for continuance of pay and allowances while disabled from an injury/aggravation/illness/disease incurred in the LOD. Also on that date, he executed a Soldier's Rights and Warning Statement wherein he indicated he was informed of his rights and that he did not have to make a statement relating to the origin, incurrence, or aggravation of the injuries. 15. On 26 August 2010, he was issued a permanent physical profile for low back pain. The profiling officer stated the applicant had low back pain. No other information was provided. 16. On 28 September 2010, the WVARNG State Surgeon determined the applicant was not physically fit for retention based on chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). On the Standard Form 600, he indicated the applicant should be processed for separation as not being medically fit for retention. The applicant had this issue for greater than 2 years and was beyond maximal medical improvement. He had a permanent "L3" physical profile due to this ongoing problem. 17. The applicant was honorably released from active duty on 30 September 2010 by reason of completion of required service and transferred to the control of the WVARNG. 18. On 4 October 2010 in a memorandum to the applicant's chain of command, the State G-1 stated the Surgeon General had evaluated the applicant's medical records and determined he was not retainable in accordance with Army Regulation 40-501, paragraphs 3-39 and 3-41. He instructed the applicant to provide relevant documentation if he wished to appeal, to include any civilian, military, or Department of Veterans Affairs (VA) medical records. 19. On 4 October 2010, the applicant executed an acknowledgement of notification of separation. He indicated he understood he would be separated from the WVARNG, he did not desire to appeal his medical separation, and he did not intend to submit additional medical documentation. 20. He was honorably discharged from the WVARNG on 4 November 2010 in accordance with paragraph 6-35i(8), National Guard Regulation 600-200 (Enlisted Personnel Management), per Army Regulation 40-501. He completed 11 years and 10 days of service during this period. 21. On 10 December 2010 in a memorandum for the Joint Forces Headquarters, West Virginia, the State LOD approval authority stated an LOD lumbar strain-lumbosacral spine series was completed on the applicant showing loss of lumbar lordosis and mild scoliosis. 22. Subsequent to his discharge, the VA awarded him service-connected disability compensation for: * post-traumatic stress disorder, 50 percent, effective 1 October 2010 * lumbago, 10 percent, effective 1 October 2010 23. An advisory opinion, dated 5 July 2012, was obtained from NGB. The Chief, Personnel Policy Division, recommended approval of the applicant's request to be afforded the opportunity to have his medical records reviewed by the appropriate board in order for an accurate determination of his condition at the time of his discharge. The Chief, Personnel Policy Division, recommended: * that the applicant's medical records be reviewed by a medical evaluation board (MEB) for disability evaluation processing and then be referred to a physical evaluation board (PEB) to determine suitability of a medical discharge * that if a determination cannot be made by an MEB or PEB based on the medical documentation provided, the Office of the Surgeon General should contact the Soldier and schedule an evaluation, generate individual travel orders, and reinstate the applicant * that if a determination is made that he should have been separated under the Army Physical Disability Evaluation System (PDES): * that the ABCMR proceedings serve as the authority for his administrative discharge and the appropriate disability separation be annotated, retroactive to his original ARNG separation date * that he receive any entitlements to all back pay and allowances, less any entitlements already received 25. The Chief, Personnel Policy Division, NGB, also stated: a. A memorandum from the WVARNG, dated 4 October 2010, indicates the applicant was found "unfit for duty" and separated effective 4 November 2010. The guidance used regarding the applicant’s discharge was National Guard Regulation 600-200, dated July 2009, paragraph 6-32(e), which states, "notify Soldiers who do not meet medical retention standards of the intent to separate and afford them the opportunity to request a waiver for retention per Army Regulation 40-501 or to provide additional information from civilian doctors at their own expense." The applicant signed an Acknowledgement of Notification of Separation form indicating he was aware of WVARNG's intent to separate him and he did not desire to appeal his medical separation. Due to the time of the applicant's discharge, the regulation used is not applicable in this instance. b. National Guard Regulation 600-200, dated March 1997, applied during the time frame in question. The guidelines that govern the proper procedures to discharge a Soldier found to be medically unfit fall under paragraph 8-26(j)(1) which states, "Refer to Army Regulation 135-178 (ARNG and USAR Enlisted Administrative Separations), chapter 12, for the following reason for discharge: medically unfit for retention in accordance with Army Regulation 40-501, chapter 3. Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501 and National Guard Regulation 40-501 (Standards of Medical Fitness-ARNG). If the Soldier refuses to report as directed, see paragraph 8-27i of this regulation. When the medical condition was incurred in the LOD, the procedures of National Guard Regulation 40-3 (Medical Care for ARNG Soldiers) will apply. Discharge will not be ordered while the case is pending final disposition. Reentry [eligibility] (RE) code 3." c. Paragraph 8-27(i) states, "Failure to obtain required physical per Army Regulation 40-501 and National Guard Regulation 40-501. Soldier will be notified in writing of the requirement to obtain a physical, and given 90 days after the letter is mailed to comply with this requirement. Commander can authorize an extension of up to 60 days for extenuating circumstances: RE 3." d. An email from the NGB Chief Surgeon General's office, dated 31 January 2012, indicates documentation provided shows the applicant was injured while on active duty and was diagnosed with a lumbar spine injury that resulted in an approved LOD. Additionally, the Soldier was given a permanent physical profile. As a result, the Soldier should have been afforded an MEB and not administratively separated. Departments of the Army and the Air Force memorandum, dated 10 December 2010, confirms through an LOD investigation regarding the incident that occurred in April 2008 that the Soldier's lumbar spine injury occurred in the LOD. e. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), section 2-8, states, "The commander, medical treatment facility (MTF) will: (a) provide a thorough and prompt evaluation when a Soldier's medical condition becomes questionable in respect to physical ability to perform duty; (b) appoint a PEB Liaison officer (PEBLO) to counsel Soldiers undergoing physical disability processing; (c) ensure MEB proceedings referred to the PEB are complete, accurate, and fully documented as outlined in Army Regulation 40-400 (Patient Administration), chapter 7, and chapter 4 of this regulation." Further, Army Regulation 40-501, section 3-3, provides that "Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB as defined in Army Regulation 40-400 and will be referred to a PEB as defined in Army Regulation 635-40 with the following caveats: (b) Soldiers pending separation in accordance with provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) or Army Regulation 600-8-24 (Officer Transfers and Discharges) authorizing separation under other than honorable conditions who do not meet medical retention standards will be referred to an MEB." There is no supporting documentation indicating the Soldier was counseled as to his rights to accept referral to an MEB/PEB for the purpose of disability benefits. f. The State supports this recommendation. 26. The applicant concurred with the advisory opinion and provided his VA rating decision. 27. National Guard Regulation 600-200, dated 31 July 2009, establishes standards, policies, and procedures for the management of ARNG enlisted Soldiers. Chapter 6 addresses enlisted separations. Paragraph 6-35l refers the user to Army Regulation 135-178 for certain reasons for separations, among them is subparagraph 6-35l(8), medical reasons. It states: medically unfit for retention per Army Regulation 40-501. Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per Army Regulation 40-501. Commanders who do not recommend retention will request the Soldier's discharge. When medical condition was incurred in the LOD, the procedures of Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations) will apply. Discharge will not be ordered while the case is pending final disposition. This paragraph also includes those Soldiers who refuse or are ineligible to reclassify into a new MOS. 28. 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 or her office, grade, rank, or rating. 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/or severance pay benefits: * 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 for training * 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 29. Paragraph 3-1(d) of Army Regulation 635-40 states that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (worldwide deployability) will not serve as the sole basis for a finding of unfitness. 30. Paragraph 3-2b of Army Regulation 635-40 states that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of a disability. 31. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, a PEB rates all disabilities using the VA Schedule of Rating Disabilities. a. Paragraph 3-39 refers to the spine, scapulae, ribs, and sacroiliac joints as reasons for referral to an MEB. One of the conditions is scoliosis when there is severe deformity with over 2 inches in deviation of tips of spinous process from the midline, or of a lesser degree if recurrently symptomatic and interfering with military duties. b. Paragraph 3-41 refers to general and miscellaneous conditions and defects that require referral to an MEB. 32. Army Regulation 600-60 (Physical Performance Evaluation System) states the Physical Performance Evaluation System (PPES) requires Active Army, ARNG, and USAR Soldiers with a permanent physical profile containing a 3 or 4 in one of the profile serial factors to be evaluated by an administrative screening board designated as the MMRB. This evaluation is to determine if Soldiers can perform satisfactorily in their primary occupational specialty or specialty code in a worldwide field environment. This regulation prescribes the duties and procedures of the MMRB. It also prescribes the procedures for processing the decision of the MMRB convening authority to recommend a Soldier for medical reclassification or to refer the Soldier into the PDES or the Reserve Component (RC) medical disqualification process, as applicable. Soldiers will appear before an MMRB within 60 days from the date the DA Form 3349 is signed by the appropriate approving authority. a. The PPES is a program designed to evaluate Soldiers with a permanent numerical designator of 3 or 4 in one of the profile serial factors based on their physical ability to perform their duties in a worldwide field or austere environment and recorded on DA Form 3349. The PPES establishes the MMRB as an administrative screening board to make this evaluation. This screening system ensures continuity of effort among commanders, doctors, personnel managers, and the PDES. It provides the MMRB convening authority with increased flexibility to determine a Soldier's deployability, reclassification potential, or referral into the PDES (or processing for medical disqualification as applicable to certain RC cases). b. The MMRB evaluation process will not be used as a quality assessment of leadership, degree of technical skill, or promotion potential. The MMRB recommendations will only be based on an enlisted Soldier's physical ability to reasonably perform the duties of his or her primary MOS or of an officer's physical ability to perform in his or her branch or area of concentration or functional area. 33. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. DISCUSSION AND CONCLUSIONS: 1. The Secretary of the Army is charged with assuring the fitness of Soldiers and separating or retiring those who become unfit to continue military service because of physical disability. The law provides benefits for eligible Soldiers whose military service is cut short due to a service-related disability incurred in the LOD. 2. The applicant in this case was a member of the ARNG. He entered active duty on 1 March 2005 and he was released from active duty on 30 September 2010. It appears he was evaluated and treated for back pain. The complete facts and circumstances surrounding his back pain are not available. a. The origin of his pain is unknown. It is unclear if it existed prior to service, occurred while serving on active duty, or was aggravated by service. If his pain occurred on active duty, there is no DA Form 2173. More importantly, there are no service medical records available that documented the history of his back pain, either acute, chronic, or remote. b. It is unclear how the State LOD officer reached the conclusion of an LOD injury without the absolute minimum documents needed (DA Form 2173 and/or treatment records). c. The civilian treatment records he provides confirm he had low back pain. However, aside from a Standard Form 600 that contained the State Surgeon's remarks that the applicant was medically unfit, nowhere is there evidence that such low back pain rendered him unable to perform the duties required of his grade and/or military specialty. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. d. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3. These standards include guidelines for applying them to fitness decisions in individual cases. e. It is also unclear why the applicant received a "success" rating after the low back pain injury/illness with an entry "profile has not affected duty performance." If he were medically unfit, he could not have received such a rating. The NGB advisory official describes the regulatory process of a Soldier who is injured or became ill while on active duty, but he does not explain when and how the injury occurred. f. There is no difference in physical disability processing for an RC/ARNG Soldier serving a period of active duty from that of a Regular Army Soldier. RC Soldiers not on active duty who have nonservice-connected conditions may be referred to the PDES under the nonduty-related process for a determination of fitness only. Referral is generally voluntary and can be requested upon notification that a member is pending separation due to medical disqualification. The command decides whether to submit a case as "duty related" or "nonduty related." Cases referred under the nonduty-related process are not authorized MEB's. In the applicant's case, it remains unclear if his low back injury was duty related or nonduty related. g. The MMRB is an administrative screening board charged with the responsibility to evaluate a Soldier's ability or inability to physically perform duties required of his or her MOS in a worldwide field environment. The MMRB is not part of the PDES but is a feeder into it. The MMRB is for Soldiers who receive a permanent 3 or 4 physical profile and yet still meet retention standards. An MMRB will decide whether to retain, retrain, or refer to an MEB/PEB. Soldiers who receive a permanent 3 or 4 physical profile and do not meet retention standards are referred directly to an MEB. h. The LOD form is not a medical document. It documents that the Soldier had normal x-rays and that he was on active duty at the time he had normal x-rays, and that his normal x-rays were not a result of his own misconduct. It specifically mentions the normal x-ray findings of diminished lordosis but adds the term "lumbar strain." Lumbar strain is not found in the x-ray report on the referral to x-ray or the referral to physical therapy. It is not found in the physical therapy notes. It is not found in the VA assessment after discharge. This LOD, dated 10 December 2010, was generated 2 1/2 years after the onset of back pain and refers to the "incident that occurred in April 2008." There is neither any documentation nor any other mention of an incident that caused his back pain. The advisory official states that available documents show the applicant sustained a "lumbar spine injury" and was given an "LOD yes" for that condition. The available documents do not document any spine injury. The only injury documented by the available documents is an ankle sprain. The fact that the NGB advisory official opines that an LOD indicates the applicant should have had an MEB is not a basis for granting one. i. The VA service-connected disability compensation is strictly a VA benefit paid to a veteran because of injuries or diseases that occurred while serving on active duty or were made worse by active military service. While the Army only rates those medical conditions that result in the Soldier being determined unfit for continued military service, the VA generally rates a Soldier for all conditions incurred in or aggravated by military service. For example, the VA rated the applicant for PTSD, but this condition was neither diagnosed nor found unfitting during his active duty service. The Army and the VA disability evaluation systems are independent of one another. Only those conditions that render a member unfit t for continued military duty will be rated by a PEB. However, the VA can rate all service-connected conditions. 5. Notwithstanding the favorable recommendation by the NGB, in the absence of a diagnosed illness or injury at the time of separation with clear evidence that such illness or injury rendered him unable to perform the duties required of his grade or military specialty, there is insufficient evidence to change the reason for his separation due to medical reasons. 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) AR20110016871 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110016871 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1