RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 May 2006
      DOCKET NUMBER:  AR20050012788


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Ernestine Fields              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the authority and reason for
discharge on his NGB (National Guard Bureau) Form 22 (Report of Separation
and Record of Service) be changed to show "medically retired" (retired by
reason of physical disability).

2.  The applicant states that his NGB Form 22 reflects 18 years and 28 days
(sic 18 years and 12 days) of total service for basic pay purposes and that
"medically retired" should have been the authority and reason for
discharge.  He also states that he suffered injuries in Vietnam due to
Agent Orange.  He was discharged from the Regular Army (RA) and was
transferred to the U.S. Army Reserve (USAR).  He joined the Texas Army
National Guard (TXARNG), where he started having problems with his prior
injury.  He was on active duty (AD) and was training to deploy for Desert
Storm when he was hospitalized.  While he was still in the hospital he
received his discharge.  However, the problem he is having is that he had
18 years and 28 days and was not afforded the opportunity to retire due to
his authority and reason for discharge.

3.  The applicant provides a copy of his NGB Form 22 in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 August 1997, the date of his discharge.  The
application submitted in this case is dated 23 August 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show he was inducted on 9 March 1971,
as a light weapons infantryman (11B).  He served in Vietnam from 23 August
1971 to 6 April 1972.  He was promoted to specialist four (SP4/E-4) on
7 January 1972.  He continued to serve until he was honorably released from
active duty (AD) on 6 April 1972.  He was transferred to the USAR.  He was
honorably discharged from the USAR on 8 March 1977.

4.  The applicant's medical records are unavailable for review for the
period 9 March 1971 to 6 April 1972.

5.  The applicant's military records show he enlisted in the TXARNG on
17 September 1994, as a cavalry scout (19D), in the pay grade of E-4.  He
was promoted to sergeant (SGT/E-5) on 1 September 1989.

6.  The applicant extended his enlistment on three occasions and on his
separation from the TXARNG he had an established expiration of term of
service (ETS) of 16 September 2001.

7.  The applicant's records contain a copy of several Standard Forms 509
(Medical Record/Progress Notes) grouped together, which were prepared
during the period 5 March 1997 through 12 May 1997.  In summary, the notes
stated that the applicant experienced severe depression and symptoms of
PTSD (Post-Traumatic Stress Disorder).

8.  The applicant's records contain a copy of a letter from the Department
of Veterans Affairs (VA) to the applicant, dated 28 August 1997.  VA
informed the applicant that his disability was amended and that he was
entitled to receive compensation at the 100 percent rate because he was
unemployable due to his service-connected disability.

9.  On 31 August 1997, action was initiated to discharge the applicant for
being medically unfit for retention under the standards of Army Regulation
40-501, chapter 3, and under the provisions of National Guard Regulation
(NGR) 600-200, chapter 8, paragraph 8-26y, with an ETS of 16 September
2001.  His request shows the correct entry, "8-26j(1)," which was
handwritten.

10.  The applicant was honorably discharged from the TXARNG on 31 August
1997 under the provisions of NGR 600-200, paragraph 8-26j(1), medically
unfit for retention standards of chapter 3, Army Regulation 40-501.

11.  There is no evidence of record that the applicant requested a
separation medical examination and his complete medical records are
unavailable for review for the period 17 September 1984 through 31 August
1997.






12.  NGR 600-200 governs procedures for enlisted personnel of the Army
National Guard (ARNG).  Paragraph 8-26 covers reasons, applicability,
codes, and board requirements for administrative discharges from the
Reserve of the Army and/or the State ARNG.  Paragraph 8-26j provides for
the separation of personnel who are found medically unfit for retention
under the provisions of Army Regulation 40-501, chapter 3.  It also states
to refer to Army Regulation 135-178, chapter 12.

13.  Army Regulation 135-178, in effect at the time, established the
policies, standard, and procedures governing the administrative separation
of enlisted Soldiers from the Reserve Components.  Chapter 12 pertains to
separation for other reasons.  Paragraph 12 provides guidance for the
separation of Soldiers who are medically unfit for retention.  It states
that separation will be accomplished by separation authorities when it has
been determined that an enlisted Soldier is no longer qualified for
retention by reason of medical unfitness unless the Soldier requests and is
granted a waiver or eligible for transfer to the Retired Reserve.

14.  Army Regulation 635-40 establishes the Army physical disability
evaluation system 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.  It provides for medical evaluation boards, which are convened to
document a Soldier's medical status and duty limitations insofar as duty is
affected by the Soldier's status.  A decision is made as to the Soldier's
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the medical evaluation board determines the Soldier does not
meet retention standards, the board will recommend referral of the Soldier
to a physical evaluation board.

15.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier's particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

16.  Army Regulation 40-501, chapter 3, provides standards for medical
retention.  Basically, members with conditions as severe as listed in this
chapter are considered medically unfit for retention on active duty.

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

18.  Title 10, US Code, section 1201, provides for the physical disability
retirement of an unfit member who has at least 20 years of service or a
disability rating of at least 30 percent.

19.  An award of a VA rating does not establish entitlement to medical
retirement or separation from the Army.  Operating under its own policies
and regulations, the VA, which has neither the authority nor the
responsibility for determining medical unfitness for military duty, awards
ratings because a medical condition is related to service ("service-
connected") and affects the individual's civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant experienced severe
depression and symptoms of PTSD.

2.  The evidence shows that the applicant applied to VA for a service-
connected disability while a member of the TXARNG.  He was subsequently
recommended for discharge as a result of being medically unfit for
retention under the standards of Army Regulation 40-501, chapter 3, and
under the provisions of NGR 600-200, chapter 8, paragraph 8-26j(1).

3.  The applicant was honorably discharged on 31 August 1997 under the
provisions of NGR 600-200, paragraph 8-26j(1), for being medically unfit
for retention standards of Army Regulation 40-501, chapter 3.  The
applicant's authority and reason for separation are correct in accordance
with applicable regulations. Therefore, he is not entitled to correction of
his records to show that he was "medically retired."

4.  The applicant's NGB Form 22, dated 31 August 1997, identifies the
reason and authority of the discharge and the Board presumes Government
regularity in the discharge process. 

5.  There is no evidence to show that he was recommended for appearance
before a Medical Evaluation Board (MEB) or any form of physical disability
processing prior to his discharge from the TXARNG.

6.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 August 1997; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 August 2000.  The applicant did not file within the
3-year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____S___  __E.F.___  __TMR__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ______John Slone______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012788                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060509                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19970831                                |
|DISCHARGE AUTHORITY     |AR  NGR 600-200 PAR 8-26j               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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